IN THE COURT OF APPEALS OF IOWA
No. 14-2085 Filed July 27, 2016
IN THE MATTER OF PROPERTY SEIZED FROM GORDON DARNELLE WATT IV,
GORDON DARNELL WATT IV, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
A claimant challenges the district court’s order forfeiting currency seized
during a traffic stop. AFFIRMED.
Nicholas A. Sarcone of Stowers & Sarcone, P.L.C., West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Heard by Danilson, C.J., and Vaitheswaran and Tabor, JJ. 2
TABOR, Judge.
Gordon Watt appeals from the district court’s order forfeiting $63,803
seized by law enforcement during a traffic stop and subsequent vehicle search.
Watt argues the district court erred in finding the currency was subject to
forfeiture under Iowa Code chapter 809A (2013) and in applying the presumption
contained in section 809A.12(9). Because we find substantial evidence
supporting the forfeiture order, we affirm.
I. Background Facts and Proceedings
On February 25, 2013, Watt was the front-seat passenger in a rented
Lincoln MKX4 sports utility vehicle driven by Christopher Rucker from Evanston,
Illinois, traveling westbound through Iowa. Pottawattamie County Deputy Sheriff
Brian Miller was situated near the five-mile marker on Interstate 80 in Council
Bluffs when his radar showed the Lincoln traveling seventy-eight miles-per-hour
in the fifty-five miles-per-hour zone. Deputy Miller then stopped the vehicle and
spoke to its occupants. While speaking to Watt and Rucker, Deputy Miller
noticed the odor of marijuana coming from the vehicle. Deputy Miller confronted
Watt about the marijuana odor and told Watt, based on the odor, he was going to
search the vehicle. Watt then retrieved a small baggie of marijuana from the
center console.
During the search, Deputy Miller found two duffle bags under a blanket in
the rear cargo area of the vehicle. One of the duffle bags contained clothing, a
black backpack, and a camouflage backpack. The camouflage backpack
contained, among other items, Watt’s wallet, a Samsung mobile phone, a small
digital scale, a number of handwritten notes, $63,803 in United States currency 3
packaged in bundles and enclosed in plastic grocery bags, and a white
pillowcase. The white pillowcase held a loaded Beretta handgun. Officers later
learned the gun had been stolen from a home in Highland Park, a suburb near
Evanston, Illinois, where Watt resided with his mother. The black backpack
contained a computer and two magazines providing information on agricultural
growing operations. Watt acknowledged the duffle bag and the two backpacks
within the duffle bag belonged to him. Watt informed Deputy Miller he had family
in Colorado and was moving there to train at high altitude, in an attempt to
resume his professional basketball career. Rucker told Deputy Miller he was
going to visit his girlfriend in Colorado.
On March 21, 2013, the State of Iowa filed an in rem forfeiture complaint
seeking to forfeit the currency found in the vehicle. Watt answered, requesting
the money be returned to him.
Before the district court considered the forfeiture action, Watt pleaded
guilty to possession of marijuana (a serious misdemeanor punishable by six
months in jail) and carrying a concealed weapon (an aggravated misdemeanor
punishable by up to two years in prison). He requested, and was granted,
deferred judgments on both counts.
On February 27, 2014, the district court began a hearing on the State’s
forfeiture petition. That day, Deputy Miller and three other officers testified on
behalf of the State. Detective William Evans of Highland Park, Illinois, testified
regarding the residential burglary during which the handgun found in Watt’s
backpack was stolen. His investigation led him to believe Rucker, now in prison
on unrelated charges, had information about the Highland Park burglary. 4
Detective Miller testified, based on his conversation with Rucker, Miller believed
Rucker and Watt were involved in illegal activity when they were stopped in Iowa.
Deputy Miller also testified, based upon his training and experience, he
believed the loaded handgun, small amount of marijuana, and more than
$63,000 in cash found in the vehicle—particularly when viewed in conjunction
with the direction of the vehicle’s travel—indicated Watt and Rucker were on their
way to purchase drugs in Colorado to transport back to Illinois for sale. In
Miller’s words: “[C]urrency in this area runs westbound and narcotics run
eastbound.”
Detective Scott Halbrook of the Council Bluffs Police Department testified,
based on his training and experience, he believed the notes found in Watt’s
backpack to be written documentation of drug-dealing activity. Detective
Halbrook testified the notes resembled a ledger, commonly kept by drug dealers,
which listed different types of marijuana and their prices, in addition to names
Detective Halbrook believed to be customers.
When the forfeiture hearing resumed on June 6, 2014, Special Agent
Michael Mittan testified regarding his experience in investigating drug trafficking
following interdiction stops on Iowa’s highways during his twenty-four years with
the Iowa Division of Narcotics Enforcement. Related to this case, Special Agent
Mittan testified that, because the state of Colorado has legalized marijuana
possession, it is now a place where people go to buy plants or seeds. He
testified he believed it was a felony to grow a certain number of marijuana plants
in Colorado without a license. Special Agent Mittan also testified it is a federal
felony to grow marijuana in Colorado regardless of licensure. 5
Over the objection of Watt’s counsel, Agent Mittan testified it is illegal to
transport marijuana from Colorado to Nebraska, Nebraska to Iowa, and Iowa to
Illinois. He further testified drug possession would be a felony offense in those
states depending on the amount of marijuana seized. Agent Mittan also testified
drug dealers frequently use vehicles rented in the name of third parties to
facilitate distribution and to avoid seizure of their own vehicle if they are stopped.
The agent stated it is common for people involved in drug sales to carry loaded
guns to protect their assets. Finally, Agent Mittan reviewed a document seized
from Watt bearing what looked like quotations for what it would cost to start a
marijuana growing operation.
When the forfeiture hearing resumed again on August 13, 2014, the State
called Investigator Jason Lemaster of the Pottawattamie County Sherriff’s Office,
who heard Watt make this statement to the assistant county attorney as to why
he possessed the loaded handgun: “Well, when you’re carrying your life savings,
you have to have a gun.” Investigator Lemaster filed a report documenting the
statement.
In his testimony, Watt denied saying he needed the gun for protection.
Instead, he asserted the gun was in his bag because he “forgot it there from
maybe a week or two before” when it was left in the backseat by “one of the
youth in [his] community.”
Watt testified the seized cash was from his professional basketball career.
After playing basketball in college, in 2009 Watt entered the National Basketball
Association draft but was not chosen to play on a team in the United States.
Watt then played for several professional teams in Europe before returning to the 6
United States in April 2012. Watt received the last payment from European
basketball in May 2012, approximately nine months before the traffic stop
prompting the forfeiture proceedings. Records indicated Watt earned
approximately $34,000 between September 2011 and May 2012. Watt testified
he had few expenses while living in Europe due to the accommodations provided
by the teams. Watt further testified he has had few expenses since his return to
the states because his mother took care of the majority of his financial
responsibilities. Watt claimed his limited expenses allowed him to save a
significant amount of money. Watt noted previous fraudulent activity on his bank
account prompted his mistrust in banks, and as a result, he generally withdrew
earnings from his bank account upon deposit.
Watt testified he and Rucker were childhood friends. Watt acknowledged
he had seen a report from the Illinois detective’s interview with Rucker in which
Rucker admitted, at the time of the traffic stop, the pair was going to Colorado to
buy marijuana and bringing it back to sell in Illinois, as they had done in the past.
But Watt testified the report’s statements could not have come from Rucker
“because all of that would have been false.” Watt maintained the magazines and
notes regarding marijuana cultivation reflected his effort to fit in with the Colorado
culture. He engaged in the following exchange with the assistant county
attorney:
Q. It was all your own? A. Yes, me learning the industry. Typically when I step into any market, whether it is Sweden, France, anywhere, I want to know the main import, export, and me targeting Colorado because of the altitude and my training, I want to know what is going on in the community, I want to speak the language of the natives. 7
Q. So in February of 2013 you were going to Colorado to grow marijuana? A. I was going there to relocate and train. Q. What about marijuana? You were not going to grow marijuana? A. No, I was not. Q. Were you going there to set up a dispensary? A. No, but I wanted to—if I was next to somebody who had a dispensary, I wanted to be able to speak his language.
Watt traveled between Colorado and Illinois several times in the months
before February 2013. Watt said he was trying to decide whether he wanted to
move to Colorado. Watt flew into Denver on October 15, 2012. Watt rented
hotel rooms in Colorado Springs from the nights of October 17-19, October 26-
27, and October 29. Watt rented a car in Colorado Springs on October 23 and
returned it on October 30. Subsequently, Watt was involved in a transaction in
which a third individual rented other vehicles from Enterprise in Colorado Springs
from October 30 to December 14. A high number of miles were put on these
rental vehicles between October 30 and December 14 before they were returned
in Colorado on December 14—the State noted one of the cars in particular could
have made three round trips from Colorado Springs to Chicago. Later on
December 14, Watt rented a car in Illinois. On December 18, Watt passed
through Iowa, and he returned the rented vehicle the very next day. Watt also
was involved in several car rental agreements originating in Illinois in January
and February 2013.
Following the multiple-day hearing, the district court entered its order
forfeiting the $63,803 in cash found in the vehicle. The court applied the
presumption under Iowa Code section 809A.12(9), explaining, “Because the cash
was found in close proximity to the contraband gun and marijuana, the State is
entitled to a presumption that the money was proceeds of, or used to facilitate, 8
the illegal activity of drug trafficking . . . .” The court did not find Watt credible in
his explanation for carrying so much cash, noting:
His testimony and all of the evidence regarding his earnings as a basketball player simply did not account for his having that much cash, even if he had saved every dollar he had earned as a player. Watt’s purported distrust of banks did not comport with his use of his bank card for many transactions.
The court then stated, even if Watt “is deemed to have rebutted the
presumption that the cash is forfeitable,” the State must still show a “substantial
connection” between the seized currency and illegal activity. The court found the
State’s evidence established a substantial relationship between the seized
currency and Watt’s drug trafficking,1 reasoning:
Watt was a user of marijuana. He had an interest in legal marijuana cultivation in Colorado. He possessed photographs showing both cash and marijuana. He carried a scale with him when he traveled. He was in a rented vehicle traveling west with a large amount of cash to a state known for the presence of marijuana, a pattern consistent with drug trafficking. The reasonable inference from these facts is that Watt was engaged in drug trafficking and that the cash was to further that illegal activity.
The court concluded the State carried its burden by a preponderance of the
evidence to show the seized currency was subject to forfeiture under section
809A.2.
Watt filed a motion to enlarge, alleging the State “failed to introduce any
statute from any jurisdiction from which the trier of fact could conclude that the
alleged conduct of Mr. Watt fit the elements of a crime punishable by more than
one year in jail.” In ruling on the motion, the district court made additional
findings and conclusions. Among those findings, the court recounted officers’
1 The district court concluded the State failed to demonstrate “any connection between the cash and alleged pimping or prostitution.” 9
testimony that Watt had in his possession notes that appeared to be “logs
detailing the amounts of money people owed Watt. The notes included
references to names of different types of marijuana and amounts that the
detectives opined indicated Watt was dealing in pounds of marijuana.” The court
further stated:
The State did not ask the court to take judicial notice of drug trafficking statutes in Illinois or Colorado. However, transporting more than “personal use” marijuana would be punishable in Iowa for a year in jail or more, and would make this “conduct giving rise to forfeiture” under Iowa Code §809A.3(1)(b).
Watt filed a timely notice of appeal.
II. Standard of Review
We review a forfeiture order for correction of errors at law. In re Prop.
Seized from Young, 780 N.W.2d 726, 727 (Iowa 2010). Because forfeitures are
disfavored under Iowa law, we strictly construe forfeiture statutes. See In re
Prop. Seized from Williams, 676 N .W.2d 607, 612 (Iowa 2004).
III. Analysis
A. Sufficient Evidence
Under Iowa’s “Forfeiture Reform Act,” property is subject to forfeiture if it is
“[u]sed or intended to be used in any manner or part to facilitate conduct giving
rise to forfeiture” or constitutes “proceeds of conduct giving rise to forfeiture.”
Iowa Code § 809A.4(2)(a)(2), .4(3). “Conduct giving rise to forfeiture” includes:
1. An act or omission which is a public offense and which is a serious or aggravated misdemeanor or felony. 2. An act or omission occurring outside of this state, that would be punishable by confinement of one year or more in the place of occurrence and would be 10
a serious or aggravated misdemeanor or felony if the act or omission occurred in this state. 3. An act or omission committed in furtherance of any act or omission described in subsection 1, which is a serious or aggravated misdemeanor or felony, including any inchoate or preparatory offense.
Iowa Code § 809A.3(1).
In this appeal, Watt disputes the district court’s finding of sufficient
evidence of conduct giving rise to forfeiture under section 809A.3. Watt claims
the evidence supports only speculation as to his involvement in drug trafficking.
Watt further contends the State failed to prove the punishment element of
“conduct giving rise to forfeiture” by failing to submit into the record the specific
statutes the State was alleging Watt violated.
To support the elements of conduct giving rise to forfeiture in this case,
the State was required to demonstrate, by a preponderance of the evidence,
Watt committed, or was going to commit, either (1) an act in Iowa which is an
indictable offense; or (2) an act outside of Iowa punishable by confinement of one
year or more in the state in which he committed the act and an indictable offense
in Iowa; and (3) the seized currency was either the proceeds of or intended to
facilitate the illegal activity. See Id. § 809A.3. Iowa Code section 809A.12(9)
provides a presumption the third element is satisfied when money is found in
“close proximity” to any contraband or an instrumentality of elements (1) or (2).
We find no error in the district court’s determination the State met its
burden to show by a preponderance of the evidence that the currency in Watt’s
backpack was subject to forfeiture. The officers testified, based upon their
training and experience, Watt’s travel patterns and items found in the vehicle— 11
including the large quantity of cash, loaded handgun, alleged drug notes, and
multiple cell phones—are common indicators of drug trafficking. Deputy Miller
testified Watt’s possession of nearly $64,000 was consistent with the practice in
drug-trafficking operations of currency traveling westbound while drugs travel
eastbound.
Further, the record included evidence Rucker told police he and Watt were
traveling to Colorado to purchase marijuana to bring back and sell in Evanston,
Illinois, as they had done in the past. The State also pointed to the small amount
of marijuana and digital scale in Watt’s possession—though both are consistent
with personal use, they support an inference Watt participates in illegal drug
activity. The collective items in Watt’s possession, law enforcment testimony as
to drug-trafficking patterns, and Watt’s lack of a credible explanation for the
currency and loaded handgun in his possession support a reasonable inference
Watt intended to use the cash for drug trafficking.2 See In re Prop. Seized from
Thao, No. 14-1936, 2016 WL 1130280, at *8 (Iowa Ct. App. Mar. 23, 2016)
(noting expertise of officers may be considered when determining if State carried
its burden and viewing the items found in the claimants’ vehicle collectively).
Watt next claims, even if the district court could reasonably infer he was
involved in multistate drug trafficking, the State did not present sufficient
evidence to show Watt would have traveled back through Iowa while possessing
the marijuana purchased in Colorado.
2 Finding sufficient evidence to prove the currency was intended to be used to facilitate conduct giving rise to forfeiture, we need not address the alternative argument presented by the State that the currency was proceeds of illegal conduct. See Iowa Code § 809A.4(2). 12
The State presented evidence of several trips Watt made from Illinois to
Colorado and back in the months leading up to the traffic stop. On at least one of
these occasions, Watt stopped in Altoona, Iowa, as evidenced by a receipt.
Furthermore, the most direct route from Illinois to Colorado runs through Iowa.
The district court could reasonably infer Watt was involved in drug trafficking from
Illinois to Colorado via highway travel. The conclusion Watt would return through
Iowa logically follows and is supported by the State’s evidence.
Watt further argues, even if we find the State sufficiently proved he
intended to take part in drug trafficking in Iowa, the State did not meet its burden
in proving “conduct giving rise to forfeiture” under section 809A.3. Watt’s
contention does not rest on an assertion that drug trafficking is not an indictable
offense. Rather, he claims the State did not meet its burden because the district
court did not take formal judicial notice of a statute demonstrating that drug
trafficking is an indictable offense in Iowa. We know of no requirement the
district court take judicial notice of our own state statutes when making a legal
determination, nor has Watt presented any authority for such a requirement. See
One 1985 Cadillac Auto. v. State, 805 S.W.2d 944, 945 (Tex. App. 1991)
(rejecting similar argument).
Moreover, even if it is necessary to take judicial notice of the Iowa statute
characterizing marijuana trafficking as an indictable offense, we can do so now.
Judicial notice may be taken at any stage of a proceeding. Iowa R. Evid.
5.201(f); see State v. Freland, No. 13-0904, 2014 WL 1494953, at *2 (Iowa Ct.
App. Apr. 16, 2014) (taking judicial notice of Wisconsin statute on appeal when
the “only thing missing from the district court record [was] for the district court to 13
have judicially noticed the Wisconsin statute that is substantially similar to the
Iowa Code section”).
We turn to the applicable statutes. Under Iowa Code section 124.401(1),
[I]t is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance . . . or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance.
Marijuana, for most purposes, is a schedule I controlled substance. See Iowa
Code § 124.204(4)(m). A violation of section 124.401(1) is, at minimum, a class
“D” felony. See Iowa Code § 124.401(1)(d). The State’s evidence established
conduct giving rise to forfeiture under section 809A.3(1)(a).
In addition, Special Agent Mittan testified to his knowledge that it is a
felony (depending on the amount) to possess marijuana not only in Iowa, but in
Nebraska and Illinois as well. The definition of conduct giving rise to forfeiture
includes out-of-state conduct punishable by at least one year in the state where
the conduct occurred. Iowa Code § 809A.3(2). But Watt argues the State fell
short of its burden under that section because it “did not offer any statutes from
any other state identifying specifically what acts are illegal, and what the
punishment is for those acts.” Watt contends, to determine whether his alleged
future acts constitute conduct giving rise to forfeiture, the State had to prove
“what acts are illegal in another given jurisdiction, and what the punishment was
for those acts.” Watt does not cite authority for his contention.
We disagree with his claim the State was required to plead or offer foreign
statutes into evidence. The State was not relying on Nebraska or Illinois law as 14
controlling the forfeiture action being tried. Contrast Pa. Life Ins. Co. v. Simoni,
641 N.W.2d 807, 810 (Iowa 2002) (discussing Iowa Rule of Civil Procedure 1.415
where party alleged North Carolina law controlled contract dispute and holding
party relying on foreign law may ask the court to take judicial notice of foreign
statutory law and may introduce into evidence statutes to prove the foreign law).
Instead, the applicable drug statutes from Illinois and Nebraska were facts “not
subject to reasonable dispute” in that they were “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.” See Iowa R. Evid. 5.201(b); Freland, 2014 WL 1494953, at *2.
Accordingly, we now take judicial notice of the drug statutes of those jurisdictions
where Watt’s currency was intended to facilitate conduct giving rise to forfeiture.
Special Agent Mittan testified, based on his training and experience, one
pound of marijuana may be bought for $800 in Colorado and sold for $3200 in
Chicago. According to Mittan’s calculations, even if Watt spent only half of the
$63,803 on marijuana in Colorado, at $800 a pound, Watt would receive almost
forty pounds of marijuana. A person possessing forty pounds of marijuana with
intent to deliver would be subject to more than one year of imprisonment in
Nebraska or Illinois. See 720 Ill. Comp. Stat. § 550/5 (West 2013) (“manufacture
or delivery of cannabis”); id. § 5/5-4.5-25-45 (“sentence”); Neb. Rev. Stat. §§ 28-
105(1) (2013) (“felonies-classification of penalties”), 28-405(c)(7) (“controlled
substances-marijuana”), 28-416(1)-(2) (“prohibited acts”).
The evidence supports a reasonable inference Watt intended to use the
seized cash to facilitate an act that was an indictable offense in Iowa or, if the
offense occurred outside of Iowa, an act punishable by more than one year of 15
confinement in Nebraska or Illinois. The district court did not err in finding the
State proved the cash was subject to forfeiture.
B. Presumption
Watt argues the presumption contained in Iowa Code section 809A.12(9)
should be treated as a permissive inference due to the quasi-criminal nature of
forfeiture proceedings. This interpretation would allow the district court to infer a
substantial connection between the currency and the conduct when supported by
the evidence but would not place weight on Watt’s failure to produce rebutting
evidence. Watt contends, if the district court had treated the presumption as a
permissive inference, it could not have concluded the cash was subject to
forfeiture.
We do not believe it is necessary to decide whether section 809A.12(9)
should be read as shifting the burden of proof, because the district court here
assumed Watt had rebutted the presumption and ultimately held the State to its
burden to prove the necessary connection between the money and the conduct
giving rise to forfeiture. The district court properly factored the currency’s
proximity to the handgun and the small amount of marijuana into its overall
sufficiency-of-the-evidence analysis.
IV. Conclusion
Based on our review of the entire record, and for all of the reasons set
forth above, we conclude the evidence presented supports the district court’s
finding Watt intended to use the seized currency to facilitate conduct giving rise 16
to forfeiture. Further, the court did not misapply the presumption in Iowa Code
section 809A.12(9).
AFFIRMED.
Danilson, C.J., concurs specially; Bower, J., concurs. 17
DANILSON, Chief Judge. (concurring specially)
I specially concur because I agree with the result reached. I believe the
amount of cash Watt possessed and the other evidence presented supports the
conclusion that his acts were in furtherance of transporting and possessing
marijuana with intent to distribute under Iowa law, an offense constituting a class
“D” felony. Iowa Code § 124.401(1)(d). I do not subscribe to the majority’s
acceptance of proof of foreign law solely through the testimony of witnesses or
taking judicial notice on appeal. See Iowa Code §§ 622.59, .60; Iowa R. Civ. P.
1.415; Fetters v. Degnan, 250 N.W.2d 25, 27-28 (Iowa 1977) (“Foreign law must
be pleaded and proven.” (citation omitted)). Here, the State’s answer and
resistance did not identify any foreign law and no printed copy of a foreign law
was admitted into evidence.