[Post bumped and updated 8.22.06. Scroll down to the bottom of the post for the update.]
Query: How does an appellate panel get around the clear error standard of review when it disagrees with the district court? As astute readers know, an appellate court will reverse a trial court's credibility determinations only after concluding that the trial court committed clear error, i.e., that it exercised will, not judgment. It's hard, but not impossible, as Judge Colloton demonstrated in U.S. v. $124,700 in U.S. Currency (here, via Cato).
At issue in $124,700 was this: Was money found in a Mexican immigrant's rental car substantially connected to drug activity? Here was the evidence that it was:
- There was a lot of it.
- The defendant was travelling home via a rental car after taking a one-way plane ticket to the Chicago.
- The defendant lied about who rented the car for him.
- The rental car was in a third party's name.
- The defendant lied about having money in the car.
- A drug dog alerted when sniffing the rental car.
That certainly is strong evidence that the money was substantially
connected to drugs! Except that, at a bench trial, the defendant believably explained how he got the money, and why he was driving the rental car.
He was travelling to Chicago to purchase a truck he
needed to start a new business. He flew on a one-way ticket because he
intended to drive the truck home. When he arrived in Chicago, the truck
had already been sold. Thus, he needed a rental car. Since he, like
many recent immigrants, did not have a credit card, he had someone else
rent the car for him.
In support of his story, he presented this evidence:
- There were no drugs in the car, and the government could not link the him, by any standard of proof, to drugs or drug dealers.
- A business partner testified that he had given him "$65,000 in cash, which was a
combination of money that he had borrowed from his father-in-law and his own
personal cash savings, with the expectation that [the defendant] would help him buy a refrigerated truck for the produce business."
- The defendant "testified that he gave $40,000 of his own money, plus $20,000 from a friend, Andres Madrigal Morgan, as an investment in Gomez’s truck."
- "Consistent with Gonzolez’s account, Andres Madrigal Morgan testified that he contributed $20,000 in proceeds from a vehicle sale to Gonzolez’s investment in the truck."
After hearing all of this evidence, the district court held that the
government did not prove its case that the money was substantially
connected to drug activity. Thus, the issue would seem to be: Did the
district court abuse its discretion when it believed the defendant's story?
Not so fast, said Judge Colloton. Given that it would be
impossible, in light of the record, to reverse the district court,
Judge Colloton re-frames the issue:
The district court’s opinion includes no finding as to the credibility of Gonzolez and the other two claimants. The court did observe that the explanations of the claimants were “plausible and consistent,” but this is different from a finding that the court actually believed the testimony. “Plausible” means “apparently acceptable or trustworthy (sometimes with the implication of mere appearance),” see Shorter Oxford English Dictionary 2238 (5th ed. 2002), and we thus read the district court’s opinion to hold that given a “plausible and consistent” explanation from the claimants on one side of the balance, the government’s countervailing proof was not strong enough to meet its burden of showing a substantial connection by a preponderance of the evidence.
Okay, let's assume that you buy that when a trial court, after hearing evidence, finds the defendant's story "plausible and consistent," he really isn't making credibility determinations. This is a dubious assumption - so dubious that the government didn't even argue that the appellate court make it. Appellant's Br. at 8 [page 15 of the .pdf] (noting that the court "must accept the district court’s factual findings ... unless those findings are clearly erroneous."
But let's make the assumption that the trial court was really doing something else. It wasn't making factual findings. For the sake of argument, we, like Judge Colloton, won't define that that something else is.
How then do you explain the panel's conduct: It reversed the trial court's judgement, rather than remanding to allow the trial court to state whether it made credibility determinations. It did not remand the case, which is what courts usually do when unsure whether the lower court made a credibility call. Rather, it reversed the judgment.
The split panel reversed the judgment precisely because the two judges knew that the lower court had made credibility determinations. The split panel was willing to disregard standard operating procedure (re: remand to the lower court to determine what, if any, credibility determinations it made) because the two judges wanted to reach a different result - here, that the money was connected to drug activity.
The result, of course, was tragic. Several poor immigrants lost their life savings even though the government could not prove that they, or their money, had any connection to drugs.
UPDATE: Ted Frank leaves an important comment at C&F and at Overlawyered:
I'd be more impressed with this story (a) if Gonzolez knew the name or address of the guy who he was going to see about the truck; and (b) if Freightliner refrigerated trucks weren't (i) commonplace and (ii) considerably cheaper than $124,700.
I am quite confident that there are poster children for civil forfeiture abuse. But I'm skeptical that this is one of them.
Putting aside the substance of Ted's post, it does demonstrate an important point for the judicial process: Couldn't the panel's decision have been more persuasive? Results matter to the ligitants, but process and judicial reasoning matter to everyone.
Judges should write their opinions with the same mind that lawyers write briefs - with the goal to persuade. In a democracy, even life-tenured judges have a duty to persuade the public that their opinion resulted from judgment, not will.