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In re United States Currency in the Amount of 2612/21/2000
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
This court previously concluded in this in rem civil forfeiture action that the trial court had erred in granting summary judgment to claimant/appellee Beverly Gilbert on the issue of probable cause and, therefore, reversed and remanded for further proceedings. In re U.S. Currency in the Amount of $26,980. 00, 193 Ariz. 427, 973 P.2d 1184 (App. 1998). After a bench trial on remand, the trial court ordered appellant Pima County to return to claimant/appellee Beverly Gilbert the funds seized plus ten percent interest from the time of the seizure. We affirm the portion of the judgment ordering the seized funds retur ned but vacate the portion of the judgment awarding Gilbert ten percent prejudgment interest because A.R.S. ยง 13-4314(E) prohibits prejudgment interest at the legal rate in in rem forfeiture actions. We remand this case to the trial court because Gilbert is entitled to interest the gover nment actually earned on the seized funds, as well as post-judgment interest.
BACKGROUND
As to the factual issues, we view the evidence in the light most favorable to upholding the judgment. In re 4030 W. Avocado, 184 Ar iz. 219, 219, 908 P. 2d 33, 33 (App. 1995); In re 1978 Dodge Trans-Van, 129 Ar iz. 362, 363, 631 P.2d 144, 145 (App. 1981). In 1990, Pima County and Gilbert's husband settled a forfeiture action involving $23,560 by agreeing the County would return $11,780 to Gilbert's husband's attorney and Gilbert's husband would forfeit the remainder. In 1991, police sear ched Gilbert's and her husband's home, seizing seventy- nine pounds of marijuana, cash, and other items. The state filed a related civil forfeitur e action that was settled in 1991 with the return of approximately $5,000 to Gilbert and her husband. In the criminal prosecution related to that seizure, Gilbert's husband was convicted in 1992 of possession and sale of marijuana, illegally conducting a criminal enterprise, and conspiracy to traffic in marijuana.
Four years later, in August 1996, Gilbert called a co-worker at the University of Arizona Sociology Department and informed her that Gilbert was expecting a Federal Express package of textbooks for a class she would be taking. F ederal Express deliver ed the package, which was addressed to Gilbert and had a return address of "Professor Timoyht Walters" at Hofstra University in Hempstead, New York. After the package was delivered, a man called the sociology department and said he wanted to retrieve the package. The sociology department business manager told him that he would not be allowed to do so. The business manager opened the package, which contained $26, 980, and then contacted the police.
The police confronted Gilbert at her home about the package. She denied the package was hers and signed a disclaimer of ownership of the money. A week and a half later, however, Gilbert's attorney sent a letter to the police making a claim for the money on Gilbert's behalf. Gilbert later asser ted the money was a return of funds she had invested in Timothy Walters' construction business.
At trial, Gilbert testified that she had sent the money in 1992 to Sheldon Fredericks, who had promoted reggae shows with her husband, and that it was he who had returned the money, plus interest, back to her. She testified that the money she had sent to Fredericks had originally come from her mother and from the prior forfeiture settlements, including $5,000 fr om the 1990 forfeiture settlement that had been in her under wear drawer when the police searched her house in 1991. Her mother testified that she had lent or given Gilbert $10,500 in the second half of 1991 from a personal
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