Appeal
from Shelby Circuit Court (CV-16-900459)
EDWARDS, JUDGE.
Mary
Alice Wilson, a Colorado resident, appeals from a judgment
entered by the Shelby Circuit Court ("the trial
court") ordering the forfeiture of $19, 410 ("the
$19, 410") to the State of Alabama pursuant to Ala. Code
1975, § 20-2-93.
Christopher
Bruton, a resident of Shelby County, originally met Wilson on
a cruise in 2013. They smoked marijuana together on the
cruise, and, thereafter, Bruton began purchasing marijuana
from Wilson in quantities of one-half pound or one pound per
purchase; occasionally, Bruton also purchased alprazolam,
i.e., Xanax, from Wilson.[1] To obtain the drugs, Bruton would
contact Wilson by text message and request marijuana
("sometimes specify[ing] the amount and 'flavor'
('Gorilla Glue,' 'Bruce Banner,' 'Luke
Skywalker,' etc.)") or Xanax. Wilson would respond
by text message, and, within a few days, she would ship the
drugs to Bruton and would provide him with a tracking number
for the shipment. Wilson would also indicate the cost for the
drugs, if she and Bruton had not already agreed to the
specific cost. After Bruton received the shipment, he would
make a deposit into a bank account Wilson had at Wells Fargo,
as directed by Wilson. Bruton made the deposits at a Wells
Fargo branch in Pelham.
Wilson's
first shipment of marijuana to Bruton was in late August
2013. Thereafter, Bruton placed orders and received shipments
of marijuana or Xanax from Wilson every two or three months,
on average, until May 2016. On May 17, 2016, a Birmingham
police officer obtained a search warrant for a package from
Wilson that was intended for Bruton. The warrant was issued
based on a positive indication from a narcotics-detection dog
that had occurred while the package was being processed at a
local Federal Express facility; the ensuing search revealed
that the package contained 1.14 pounds of marijuana in a
vacuum-sealed bag. The package was thereafter delivered to
Bruton at his Shelby County address. Officers from the Shelby
County Drug Enforcement Task Force ("the task
force") were present when the package was delivered and
confronted Bruton after he accepted delivery. Bruton
thereafter agreed to cooperate with the task force's
investigation of Wilson, including consenting to a review of
information contained on Bruton's cellular telephone. We
note that Bruton made no payment to Wilson for the May 2016
shipment of marijuana, although a text message from Wilson to
Bruton on October 28, 2013, stated that she had "a
policy" of charging only half the agreed upon price if
she sent a package that "gets lost or taken."
Based
on information obtained during the task force's
investigation into Wilson and Bruton's relationship, on
May 18, 2016, the task force seized $35, 746.70 ("the
$35, 746.70") from four accounts at Wells Fargo that
belonged to Wilson; the $35, 746.70 was seized through a
Shelby County branch of Wells Fargo. The four accounts are
hereinafter identified by the last four digits of the
respective Wells Fargo account numbers, namely 3990, 6995,
5935, and 6603. We note that all of Bruton's deposits
were made into Wilson's Wells Fargo account number 6603
("the 6603 account"), which, on May 18, 2016, had a
balance of $27, 709.23 ("the $27, 709.23") and was
part of the $35, 746.70.
On June
10, 2016, the State filed a complaint in the trial court
seeking forfeiture of the $35, 746.70 pursuant to §
20-2-93. In addition to the $35, 746.70, Wilson was named as
a defendant. Wilson filed an answer to the State's
complaint. Thereafter, she filed a motion for a summary
judgment arguing that the State's claims to the portions
of the $35, 746.70 seized from her Wells Fargo account
numbers 3990, 6995, and 5935 were due to be denied because
the State had no evidence indicating that the currency from
those accounts was associated with any illegal drug
transaction. Accordingly, Wilson contended, the currency
seized from those three accounts was due to be returned to
her.
Regarding
the $27, 709.23 seized from the 6603 account, the text
messages retrieved from Bruton's cellular telephone
reflect that, between August 2013 and March 2016, Bruton made
15 deposits for the purchase of marijuana or Xanax into that
account; those deposits totaled $30, 410. However, according
to an affidavit filed by Wilson in support of her motion for
a summary judgment, when the State seized the $27, 709.23
from the 6603 account, most of the $27, 709.23 was from
deposits that were not related to any illegal drug
transaction. Wilson argued that the State's evidence
could link only $4, 260 of the $27, 709.23 to any specific
illegal drug transaction - the payments for transactions
between her and Bruton in January 2016, February 2016, and
March 2016 -- and she contended that the remaining $23,
449.23 from the 6603 account should be returned to her.
Wilson argued, in the alternative, that the two-year statute
of limitations in Ala. Code 1975, § 6-2-38 (JL)
precluded the State from retaining any currency from the 6603
account that was attributable to an illegal drug transaction
that had occurred more than two years before the State filed
its forfeiture complaint; the currency deposited by Bruton
into the 6603 account for transactions during the two years
before the State filed its complaint totaled $19, 410.
The
State filed a response to Wilson's motion for a summary
judgment, and, after a hearing on that motion, the trial
court entered a summary judgment in favor of Wilson and
against the State regarding the portions of the $35, 746.70
seized from Wilson's Wells Fargo account numbers 3990,
6995, and 5935. Regarding the $27, 709.23 seized from the
6603 account, however, the trial court concluded that a
disputed issue of material fact precluded the entry of a
summary judgment against the State.
In
addition to the forfeiture action, the State filed criminal
charges against Wilson for her attempted sale and delivery of
marijuana to Bruton in May 2016. Apparently, no charges were
filed against Bruton. On November 2, 2016, Wilson pleaded
guilty in the criminal proceeding to conspiring to distribute
a controlled substance in violation of Ala. Code 1975, §
13A-12-204.
On
November 19, 2018, the trial court held an ore tenus
proceeding in the forfeiture action. The only witness who
testified at the trial was Bruton. Wilson did not attend the
trial, although her counsel was present. In addition to
Bruton's testimony, the State and Wilson stipulated to
the admission into evidence of all the exhibits offered as
part of the summary-judgment proceeding (including the
materials attached to a motion to reconsider that Wilson had
filed), which included an affidavit from Wilson, a copy of
her guilty plea from the criminal proceeding, documents from
the task force's investigation, bank-account statements,
and a printout of the text messages between Bruton and
Wilson. At trial, the State argued that Bruton had deposited
more than the $27, 709.23 into the 6603 account for illegal
drug purchases from Wilson and that the State was entitled to
all of the $27, 709.23.
On
December 6, 2018, the trial court entered a judgment
declaring that the $27, 709.23 the State seized from the 6603
account was forfeited to the task force. See Ala.
Code 1975, § 20-2-93 (e) (2) . In the December 2018
judgment, the trial court determined that the $27, 709.23 was
"proceeds knowingly commingled with proceeds used to
facilitate violation of the criminal controlled substance
laws for the State of Alabama and/or [was] proceeds knowingly
commingled with proceeds that were the fruits of the illegal
sale of controlled substances in the State of Alabama."
The trial court further stated that it found no Alabama
precedent specifically addressing the commingling issue, and
it
"adopt[ed] the United States Eleventh Circuit Court of
Appeals' analysis in U.S. v. One Single Family
Residence Located at 15603 85th Ave. North, Lake Park, Palm
Beach County, Florida, 933 F.2d 976, 981-982 (11th Cir.
1991), in distinguishing individuals who are 'innocent
owners' from those who are 'wrongdoers' who
knowingly mix illicit proceeds with proceeds attributable to
illegal drug transactions. Thereby, this Court finds that . .
. Wilson should not prevail in keeping any amount of the
funds from ... [the] 6603 [account] because she is clearly a
'wrongdoer' who knowingly engaged in illegal drug
activity and who knowingly directed . . . Bruton to deposit
funds for illegal drugs into ... [the] 6603 [account]."
We note
that in United States v. One Single Family Residence
Located at 15603 85th Avenue North, Lake Park, Palm
Beach County, Florida, 933 F.2d 976, 978 (11th Cir.
1991), the United States Court of Appeals for the Eleventh
Circuit ("the Court of Appeals") held that Gary
Spears, who had knowingly commingled his legitimate funds
with the funds of his brother, Curtis Spears, who had no
legitimate source of income and was a drug smuggler, was not
an "innocent owner" and, thus, that his funds were
subject to forfeiture under 21 U.S.C. § 881(a) (6) .
Gary and Curtis had commingled their funds to purchase real
property, as tenants in common, and to construct a house on
that property. In addressing Gary's appeal, the Court of
Appeals stated that," [a]s to a wrongdoer, any amount of
the invested proceeds traceable to drug activities forfeits
the entire property. We have never held that as to a
wrongdoer only the funds traceable to illegal activities may
be forfeited." 933 F.2d at 981. The Court of Appeals
held that, "when a claimant to a forfeiture action has
actual knowledge, at any time prior to the initiation of the
forfeiture proceeding, that claimant's legitimate funds
are commingled with drug proceeds, traceable in accord with
the forfeiture statute, the legitimate funds are subject to
forfeiture." Id. at 982.
Wilson
filed a postjudgment motion on January 3, 2019. On February
11, 2019, the trial court entered an order vacating the
December 2018 judgment and granting Wilson relief regarding
the return of $8, 299.23 of the $27, 709.23 at issue. The
trial court concluded, however, that the $19, 410 remaining
($27, 709.23 - $8, 299.23 = $19, 410) was forfeited to the
task force. After discussing two cases that Wilson had cited
in support of her postjudgment motion, Blackwell v. State
ex rel. Snyder, 266 So.3d 76 (Ala. Civ. App.
2018), and Ex parte McConathy, 911 So.2d
677 (Ala. 2005), the February 2019 order states, in pertinent
part:
"3. The only account that is at issue in this case is
the 6603 account. While the Court finds that certain monies
in the 6603 account were traceable to specific drug
transactions, the court also finds that other monies in the
account were not traceable to specific drug transactions ....
Moreover, the State conceded that the monies in the 6603
account that were not linked to a drug transaction with ...
Bruton[] were legitimately earned or deposited. What the
court cannot determine is what money was withdrawn from
account ... 6603 during the two (2) year time period at
issue, the 'clean money' from the 'dirty
money.'
"4.
The court, therefore, must account for which funds to
return to [Wilson] and which funds to condemn. From the
date of the seizure (May 2016), going back for a period of
two (2) years, there were $19, 410.00 in deposit[s]
traceable to specific drug transactions. The court has not
found a statute or case law addressing the statue of
limitations that applies to this fact situation. The court,
in accepting [Wilson's] argument that the statute of
limitations should be two (2) years, finds that portion of
the account linked to drug transactions within two (2)
years of the seizure is the only portion that should be
condemned to the State.
"5. The amount of $19, 410.00 from Wells Fargo
[a]ccount number ... 6603, which the court finds is linked to
various drug transactions in violation [of] ... §
20-2-93, is hereby forfeited and condemned. (See State's
Exhibit 1 and [Wilson's] Exhibit 8). The remaining $8,
299.23 from the said 6603 account shall be returned to ...
Wilson."
State's
exhibit 1 and Wilson's exhibit 8, referenced in the
February 2019 order, are copies of the same document, namely
page eight of an "Incident/Investigation Report"
prepared by a task-force officer. The report includes a
summary of the results of a forensic examination of
Bruton's cellular telephone and states, in pertinent
part, that, "according to the text messages, as well as
information provided by Bruton, between August 2013 and May
2016, Bruton deposited in excess of $30, 410 into ... [the
6603] account as payment for marijuana and Xanax." The
report then contains entries beginning on August 22, 2013,
and ending on May 18, 2016, for Bruton's various payments
to Wilson for the purchase of marijuana or Xanax, all but
three of which include specific dollar entries for
payment.[2] Based on the report entries, Bruton paid
Wilson $19, 410, through deposits into the 6603 account, for
illegal drug transactions during the two years before the
State filed the forfeiture complaint.
Wilson
filed a timely notice of appeal to this court from the
February 2019 order. The State did not file a cross-appeal;
thus, the State has abandoned any ...