Tuesday, September 13, 2011
Court Allows Suit Against DEA Agent Over Seizure From Travelers
By SHERRI M. OKAMOTO, Staff Writer
A federal law enforcement officer in Georgia, who seized $97,000 in cash from two travelers passing though an Atlanta airport on their way to Las Vegas, committed an intentional act expressly aimed at Nevada sufficient to satisfy the requirements for personal jurisdiction in that state, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The justices concluded that federal narcotics investigator Anthony Walden could fairly be hailed to Nevada to answer the allegations that he had violated Gina Fiore and Keith Gipson’s Fourth Amendment rights by submitting a false affidavit of probable cause supporting the seizure of the legitimate proceeds of their gambling trade since he knew the plaintiffs had significant connections to Nevada, where they suffered foreseeable harm arising from his attempt to obtain forfeiture of the cash they carried.
In the summer of 2006, Fiore and Gipson were returning to Las Vegas, where both maintained residences, from a trip to casinos in Atlantic City, N.J. and San Juan, P.R.
Before they departed San Juan, Transportation Security Administration agents discovered $48,000 in Gipson’s carry-on bag and $34,000 in Fiore’s carry-on bag, all carried openly, as well as an additional $15,000 on Gipson’s person.
San Juan Drug Enforcement Administration agents were called and questioned Fiore. She explained that she and Gipson were professional gamblers, and the money represented their winnings.
Fiore and Gipson said they showed the agents their California drivers’ licenses and stated that they had California residences, as well as residences in Las Vegas, and that Nevada was the final destination of most if not all of the funds in their possession.
The agents then escorted Gipson and Fiore to their plane and told them that they might be questioned further in Las Vegas.
En route to Las Vegas, however, Gipson and Fiore had a layover at Atlanta Hartsfield-Jackson International Airport. Walden and another DEA agent approached Gipson and Fiore at the boarding area when the duo deplaned, and had a drug-detecting dog sniff their bags.
After the dog pawed Gipson’s bag, the agents allegedly informed Fiore and Gipson that the dog’s reaction sufficiently signaled contraband to indicate that their money was involved in drug transactions and then seized all the funds. Fiore and Gipson claimed the agents further denied a specific request that they be allowed at least taxi fare for their arrival in Las Vegas.
The duo asserted that Walden had told them their money would be returned once they produced receipts showing the legitimacy of the funds. Fiore and Gipson later sent Walden federal tax returns as well as the itinerary, hotel records, and receipts from their winnings on their trip.
Fiore and Gipson contended the money was not returned after this documentation was provided since Walden and another DEA agent had provided a false probable cause affidavit to the U.S. attorney in the Northern District of Georgia, to assist in bringing a forfeiture action for the funds.
Specifically, Fiore and Gipson alleged the affidavit falsely stated Gipson had been uncooperative and had refused to respond to questions; that Fiore and Gipson had given inconsistent answers during questioning; and omitted exculpatory evidence Walden knew, such as the lack of any criminal history on either of their parts, that their bags had passed through an agricultural x-ray and other inspections used for contraband detection without incident, and that they had provided actual receipts for most of the funds that they carried.
The assistant U.S. attorney who received the affidavit determined that there was no probable cause for the forfeiture of the funds and directed the money be returned to Fiore and Gipson.
Fiore and Gipson subsequently sued Walden in the District of Nevada for violating their constitutional rights. Walden moved to dismiss, and Senior U.S. District Judge Edward C. Reed granted his motion upon finding personal jurisdiction to be lacking.
Writing for the appellate court, Judge Marsha S. Berzon, reasoned “Walden
expressly aimed his actions at people and property he knew from the outset were not local,” since he was aware Fiore and Gipson were merely changing planes in Atlanta and “must have known and intended that his actions would have impacts outside Atlanta.”
She added that the situation presented by this case was similar to “our precedents regarding personal jurisdiction in cases concerning fraud or similar causes of action” since the complaint alleged that Walden fraudulently executed a false and misleading probable cause affidavit.
“That case law firmly establishes that if a defendant is alleged to have defrauded or similarly schemed against someone with substantial ties to a forum, the ‘expressly aimed’ factor is met, even if all the defrauding activities occur outside the forum,” Berzon said.
The jurist further concluded the conduct at issue caused foreseeable harm in Nevada since Fiore and Gipson had explained they were professional gamblers, provided
documentation of the legitimacy and sources of the funds, and “Walden knew, by the time he wrote the fraudulent probable cause affidavit, that the money seized represented their professional earnings.”
Berzon, joined by Senior Judge Alfred T. Goodwin, cautioned, however, “we are not holding, that intentional tortious conduct aimed at a person where he or she is in transit at an airport is sufficient, standing alone, to confer personal jurisdiction over an airport-connected official or employee,” because “Walden did much more,” so “it is reasonable and comports with traditional notions of fair play and substantial justice for Fiore and Gipson to call Walden to answer in Nevada for those deliberate actions.”
Judge Sandra S. Ikuta dissented, arguing that “[b]ecause there is no allegation that Walden purposefully directed the actions that form the basis of plaintiffs’ claim to Nevada, a Nevada district court necessarily lacks personal jurisdiction over Walden.”
The case is Fiore v. Walden, 08-17558.
Copyright 2011, Metropolitan News Company