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In re United States Currency in the Amount of 2612/21/2000
notwithstanding the state's failure to prove or pinpoint the specific nature of the illegal activity. T herefore, I respectfully dissent from the majority's conclusion that the money at issue was not subject to forfeiture.
The totality of facts and circumstances of this case, when viewed against claimant Gilbert's background, close association with a convicted drug trafficker, and near ludicrous attempts to explain her numerous lies and other deceptions regarding the currency at issue, all point to one inescapable conclusion: the only explanation with any substance at all was the state's. Although, as correctly noted by the majority, the state bore the burden of proof, A.R. S. ยง 13- 4311(M), the state's highly indirect, cir cumstantial and inferential case nevertheless clearly overcame the near vacuum of plausible evidence advanced by the claimant. See Maricopa County Juvenile Action No. J-84984, 138 Ar iz. 282, 674 P. 2d 836 (1983) (preponderance of the evidence standard merely requires finding existence of contested fact to be more probable than not). U nder analogous circumstances, the Ninth Circuit Court of Appeals has held that, even when no illegal dealings can be delineated and no specific fact is dispositive, the "aggregate of facts" may establish "more than mere suspicion that the property was exchanged for or intended to be exchanged for drugs. " United States v. $5, 644,540 in U. S. Currency, 799 F.2d 1357, 1363 (9th Cir. 1986).
Once the trial court observed, and, in fact, made an express finding, that Gilbert lacked credibility, there was no further basis for crediting her other evidence, particularly the insubstantial "corroborating evidence" presented by Gilbert's mother which consisted of little more than highly equivocal testimony and a post-dated note that was presented in an attempt to legitimize the source of the shipped cash. See L.M. White Contracting Co. v. Tucson Rock & Sand Co., 11 Ariz. App. 540, 466 P. 2d 413 (1970) (trial court not bound to accept witness's uncontradicted testimony when its accuracy was impaired by internal inconsistencies and speculation). I would, accordingly, hold that the trial court's ruling was contrary to the only substantial evidence in the case. See Hutcherson v. City of Phoenix, 192 Ar iz. 51, 961 P. 2d 449 (1998) (if no evidence in record to justify trial court's determination, it is appellate court's duty to set it aside). In understanding this conclusion, a mor e detailed review of the evidence presented at trial than that provided by the majority is useful.
In July 1992, Gilbert's spouse was convicted of numerous drug-related offenses and sentenced to more than ten years' imprisonment for a long course of marijuana trafficking between Tucson and New York. In addition to evidence of his involvement in numerous drug shipments to New York, the evidence showed that seventy-nine pounds of marijuana, along with a sizeable amount of currency, had been seized from Gilbert's home and the currency was the subject of a forfeiture action by the state. That was not, however, her first experience with drug-related forfeiture proceedings. In 1990, Gilber t's spouse was involved in the seizure of $23,000 cash by the Tucson Airport Authority, which resulted in a forfeiture action that was settled when he stipulated to probable cause under the drug trafficking and racketeering statutes.
The current case arose when, in August 1996, Gilbert telephoned her workplace at the University of Arizona, inquir ing about a package "of textbooks" she was expecting. A parcel addressed to her fr om "Pr ofessor Timoyht Walters, " Hofstra University, New York, did indeed arrive that day. Shortly thereafter, an unknown male telephoned,
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