
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1753                              UNITED STATES OF AMERICA,                                Plaintiff, Appellant,                                          v.                         ONE LOT OF U.S. CURRENCY ($36,634),                                 Defendant, Appellee,                                        _____                               SALVATORE L. MELE, JR.,                                      Claimant.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion  of the court in  the above-captioned  case, issued on        January 8, 1997, is corrected as follows:        On the cover page, change the dollar figure in the title to "36,634"        On the cover page, just beneath the  case caption, change "Lindsey" to        "Lindsay"        On page 8, line 3, insert "he" between "that" and "was"        On page 14, line 1, replace "Degan" with "Degen"                                     _____        _____                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1753                              UNITED STATES OF AMERICA,                                Plaintiff, Appellant,                                          v.                         ONE LOT OF U.S. CURRENCY ($36,634),                                 Defendant, Appellee,                                         ___                               SALVATORE L. MELE, JR.,                                      Claimant.                                 ____________________                       APPEAL FROM UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                Cyr, Boudin, and Lynch,                                   Circuit Judges.                                   _______________                                 ____________________             Richard L. Hoffman,  Assistant United States Attorney, with  whom             __________________        Donald Stern, United States Attorney, was on brief, for appellant.        ____________            Terri Klug Cafazzo for claimant.            __________________                                 ____________________                                   January 8, 1997                                 ___________________                      LYNCH, Circuit Judge.   The  United States  appeals                      LYNCH, Circuit Judge.                             _____________            from the entry of  summary judgment against it in  its action            to  forfeit  one lot  of  currency  totalling $36,634.    The            currency was seized from Salvatore Mele, Jr. at Logan Airport            in  Boston.   The district  court held  that while  there was            adequate reason  to believe that  the money was  connected to            some unlawful activity, there  was insufficient evidence that            the unlawful activity involved drugs.  Accordingly, the court            held that the currency  is not forfeitable under 21  U.S.C.              881(a)(6), which requires that the moneys be "in exchange for            a  controlled  substance . . .,  proceeds  traceable  to such            exchange . . . [or  moneys] used  or intended  to be  used to            facilitate [a] violation of [federal drug laws] . . . ."  The            court  reasoned that  the government  had shown  nothing more            than that  Mele met the profile of  a drug courier, which was            not enough.                      Attempting to defend his victory, Mele argues  that            certain of  the district  court's predicate rulings  were too            favorable  to  the  government.   Contrary  to  the  district            court's  holdings, Mele  says, he  was  detained at  Logan in            violation of his  Fourth Amendment rights, and  so the entire            forfeiture fails.   Alternatively, he  denies the  government            has met its burden of  establishing probable cause to support            the forfeiture.                                         -2-                                          2                      We agree with the district court  that there was no            Fourth  Amendment violation.   On  the forfeiture  issue, the            evidence,   which   went   beyond  mere   profile   evidence,            established a  sufficient  nexus  between  the  currency  and            illegal  drug activity,  and it  provided probable  cause for            forfeiture.    Accordingly, we  vacate  and  direct entry  of            judgment for the government.                                          I                      Agents of the U.S. Drug Enforcement  Agency ("DEA")            seized the money from Mele on November 1, 1994.  Mele filed a            motion under Fed.  R. Crim.  P. 41(e) seeking  return of  the            money.  On March 2, 1995, the United States filed a complaint            for forfeiture  in rem,  supported by three  affidavits which            spelled out  the government's version of  the agents' airport            encounter  with   Mele.    The  district   court  issued  the            forfeiture warrant  and monition  on March 23,  and dismissed            Mele's Rule 41(e) motion shortly thereafter.                      Mele then filed his claim of ownership, accompanied            by an affidavit which  asserted only that the  money belonged            to him, that he had  kept it at his business, and that it had            been  seized  illegally from  him.    The affidavit  did  not            address any specific  factual allegations  about the  airport            encounter.    Mele's  answer  to  the government's  complaint            contained only general denials and admissions.                                         -3-                                          3                      The government filed a motion  for summary judgment            on August 14, supported by the three affidavits filed earlier            and  one  additional  affidavit.     Mele  responded  with  a            submission  captioned as  a "Motion  in Opposition  to United            States'  Motion  for  Summary  Judgment,"1   which  contained            neither a  statement of  disputed facts nor  any accompanying            affidavit.                      Six  months later,  on March  4, 1996,  the parties            argued  the  summary  judgment  motions.     Mele's  attorney            attempted for the  first time  to contradict  several of  the            government's asserted facts, and offered to have Mele testify            on the  spot as to  his version of  the facts.   The district            judge declined to permit either of these efforts because Mele            had  not properly put his version of the facts into evidence.            He also denied counsel's oral motion for leave  to supplement            the  record  because Mele  had  had adequate  time  to submit            evidence.   The judge, consequently, decided  the case solely            on  the basis of the facts in the government's affidavits and            Mele's initial  affidavit.   Despite Mele's failure  to offer            any  rebuttal evidence,  however, the  judge ordered  summary            judgment in his favor.                      Mele  has not  argued on  appeal that  the district            court erred in denying his motion for leave to supplement the                                            ____________________            1.  Although  Mele did  not file  a cross-motion  for summary            judgment, the district court treated the case as if he did.                                         -4-                                          4            record.   Such  an  argument would  fail in  any event.   The            decision whether to allow a motion for leave falls within the            district  court's discretion,  Manzoli  v. Commissioner,  904                                           _______     ____________            F.2d  101, 103  (1st Cir. 1990),  and there  was no  abuse of            discretion here.                      After  losing on  summary judgment,  the government            filed a motion to reconsider, which Mele opposed.  Along with            his  opposition,  Mele  filed  a new  affidavit  in  which he            contested  many  of  the   facts  presented  in  the  earlier            government affidavits.  The  district court did not expressly            rule  on the admissibility of this new affidavit.  In denying            the government's  motion, on the grounds  that the government            had  failed to show probable cause to forfeit, the court made            no reference to Mele's  proffer.  Given this and  the court's            earlier  rulings, we  believe  the court  did  not allow  the            affidavit.                      Mele  has not  argued on  appeal that  the district            court erred in refusing  to consider his late-filed affidavit            or that it was  required to consider it.2   Such an  argument            too would fail.  District court rulings pertaining to motions            for  reconsideration are  reviewed for  abuse of  discretion,            Gross v.  Summa Four, Inc.,  93 F.3d  987, 996 n.9  (1st Cir.            _____     ________________            1996),  and there was no abuse here.  Accordingly, on appeal,                                            ____________________            2.  Nor does  he  argue  that  the  court  did  consider  the                                                       ___            affidavit.                                         -5-                                          5            we take the facts as presented to the court before the motion            for reconsideration and the opposition were filed.                                          II                      On  November 1, 1994, DEA Transportation Task Force            Agents Peter  McCarron and  Michael Cauley were  stationed in            Boston's  Logan  Airport.   They  were  observing  passengers            checking  in for a 10:20 p.m. "red-eye" flight to Los Angeles            at the America West Airlines ticket counter.  They observed a            man, Salvatore Mele,  Jr., pay  for his ticket  with $972  in            cash, mostly twenty dollar bills.  The man seemed nervous and            "continuously  scanned" the  area.   He  was carrying  only a            nylon bag, which appeared to be mostly empty, and  he did not            check any luggage.                      After   Mele  purchased  his   ticket,  the  agents            approached him and asked if they could speak with him.   Mele            agreed,  trembling  and with  a look  of  panic on  his face.            Agent McCarron asked to  see Mele's ticket.  It was  a round-            trip  ticket from Boston to Los Angeles, with a brief middle-            of-the-night layover in Las Vegas on the outbound part of the            trip.  The return trip was for four days later, on a Saturday            night red-eye flight, America West flight 68.                      Seeing the name "Sal  Mele" on the ticket, McCarron            recognized Mele  as an associate  of Anthony Bucci  and Ralph            Penta, two  men known  to McCarron as  marijuana traffickers.            Bucci and Penta  had been  arrested six weeks  earlier, on  a                                         -6-                                          6            Sunday morning in September,  at Logan Airport for possession            of  thirty pounds  of  marijuana with  intent to  distribute.            Penta had flown  in from  Los Angeles on  the same  overnight            America  West flight  68 that  Mele intended  to take.   Upon            Penta's  arrival  at  Logan  Airport, he  had  delivered  the            marijuana to Bucci, who was waiting for him.  At his booking,            Bucci  had said that he  lived at 500  Salem Street, Medford,            Massachusetts  and that he  was a  business partner  of Mele.            Penta  had told  his parole  officer that  he was  working in            Mele's  pizza shop.  McCarron also recognized Mele as the man            who had come that Sunday morning  to bail Penta out after the            arrest, paying $10,000 in cash.                      With   this   history  in   mind,   McCarron  began            questioning  Mele about his trip.  Mele told McCarron that he            was going to Las Vegas to visit his ex-wife and children.  He            appeared  nervous and was sweating.  McCarron asked him if he            was  carrying any  narcotics or  large sums  of money.   Mele            responded  that he  was not,  but stuttered in  his response.            McCarron repeated the question, and this  time Mele said that            he had "some money."  When McCarron asked  him how much, Mele            answered  "about $30,000."   McCarron  asked him  why he  was            carrying so much money,  and Mele replied that he  planned to            do some  gambling in Las  Vegas and look  around for  a pizza            shop  to buy there.  McCarron had already seen Mele's ticket,                                         -7-                                          7            which provided only a brief layover in Las Vegas  en route to            Los Angeles.                      McCarron  then asked  Mele if  he would  mind going            with  them to the DEA's  airport field office  to discuss the            money  further.   Mele  agreed, and  they  went to  the field            office.  Agent Thomas G. Quin joined Mele and McCarron in the            office  shortly after their arrival.  One of the agents asked            Mele to  show them the money.  As Mele removed the money from            a  fanny pack he wore around his waist, McCarron noticed four            valium tablets in the plastic wrapper of a cigarette package.            Mele  stated that he had been prescribed valium for his back.            When asked why the valium was not in the prescription bottle,            Mele said that he had brought just a few pills  for his trip.            Quin told  Mele that  he was  going to  seize the  valium and            summons  Mele to  court if  Mele did  not bring  evidence the            following  day   to  prove  that  the   valium  was  properly            prescribed.                      The  agents then  counted the money  and questioned            Mele more about his plans.  Mele reiterated his claim that he            was going to Las Vegas to visit his  ex-wife and children and            to look for  a pizza place.  He would  not provide the agents            with  his ex-wife's  address  or with  any information  about            hotel  reservations in Las Vegas.   When asked  the source of            the money, Mele first said  he had gotten the money  from his                                         -8-                                          8            pizza shop,  where he kept  it hidden, and  then said  it was            from his savings and a court settlement.                      The agents asked Mele where  he had been before his            arrival at  the airport.  Mele stated  that a friend, whom he            refused  to name, had driven  him to a  restaurant in Saugus,            where  he had dinner with  his girlfriend.   After dinner, he            had his girlfriend drive  him from the restaurant to  an Osco            drugstore  on Salem Street in Medford and drop him off there.            When asked  why  he had  her  drop  him off  at  the  Medford            drugstore,  Mele replied that he  had to get  "a few things,"            specifically,  a few packs of gum.  Mele was, however, unable            to  produce  the gum.   Mele  stated  that after  leaving the            drugstore, he flagged down a taxi and went to the airport.                      Quin  knew  that  the   drugstore  in  Medford  was            directly across the street from 500 Salem Avenue, the address            Anthony  Bucci had given when arrested six weeks earlier.  At            this point, Quin told Mele that his story was not believable.            Quin  stated that he thought the money was from drug proceeds            and  that  Mele was  going to  Los  Angeles to  purchase more            drugs.  He informed  Mele that the money was  therefore being            seized and he gave Mele a receipt.                      The next day  Mele arrived at  the DEA office  with            his  attorney.     He   was  unable  to   provide  sufficient            documentation to show that  the valium was validly prescribed            to him,  as Quin  had demanded.   One  of the  agents noticed                                         -9-                                          9            Bucci  waiting outside in the car while Mele and his attorney            were  in the  office.  Later  that day, the  seized money was            placed in a bag  and, along with several other  similar bags,            was  presented  to a  narcotics-detection  dog.   To  use the            jargon  of the genre, the dog "alerted" to the bag containing            the money.                                         III                      Mele  mounts  two  separate  attacks.    First,  he            contends that the government's  entire case must fail because            the  initial seizure  of the  money, as well  as much  of the            questioning,  was  tainted  by  a  violation  of  his  Fourth            Amendment rights.3   Alternatively, he disputes the existence            of  probable  cause  at   the  forfeiture  stage,  which  the            government must show in order to forfeit the money.4                      Review here  is  de  novo  for two  reasons.    The            district  court's grant  of summary  judgment is  reviewed de                                            ____________________            3.  While  evidence seized  or gathered  in violation  of the            Fourth  Amendment   may  not  be  relied  on   to  sustain  a            forfeiture, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.                        _______________________    ____________            693, 702 (1965), it is not the case that Mele's  money itself                                                             _____ ______            is  immune  from  forfeiture  if  it  was  unconstitutionally            seized.  See  United States v. $7,850, 7 F.3d 1355, 1357 (8th                     ___  _____________    ______            Cir. 1993) ("The fact that the monies may have been illegally            seized does  not immunize them from  forfeiture.").  However,            evidence  obtained from  the  money --  such  as the  precise                               ____            amount  Mele was  carrying or  the dog  reaction --  could be            suppressed if the seizure was unconstitutional.            4.   Probable cause is  a term with multiple offices.   Here,            there is no  occasion to  consider the  standard of  probable            cause for  arrest, because  Mele's Fourth Amendment  claim is                       ______            resolved  on  voluntariness  grounds.    Probable  cause  for            forfeiture is considered later.            __________                                         -10-                                          10            novo.   Wood  v.  Clemons,  89  F.3d  922  (1st  Cir.  1996).                    ____      _______            Additionally, the Supreme Court held last term that review by            the  courts of appeals of conclusions as to whether there had            been a violation of the Fourth Amendment is de novo.  Ornelas                                                                  _______            v. United States, 116 S. Ct. 1657 (1996).               _____________            A.  Fourth Amendment                      Mele argues  that his Fourth Amendment  rights were            violated  because the agents  brought him to  the DEA airport            field  office  from  the  ticket  counter,  transforming  the            initially consensual encounter  into a stop.   This stop,  he            says,   lacked  the  reasonable   and  articulable  suspicion            necessary  to justify it.   See generally Terry  v. Ohio, 392                                        ___ _________ _____     ____            U.S.  1 (1968); United States  v. McCarthy, 77  F.3d 522 (1st                            _____________     ________            Cir. 1996),  cert. denied,  65 U.S.L.W.  3368 (U.S.  Nov. 18,                         ____________            1996) (No. 95-9302). Further, he contends, the stop  became a            de  facto arrest because of  its duration and  because of the            nature of the place to which he was taken by the agents.  The            probable cause necessary to  uphold an arrest, he argues,  is            similarly lacking.                      The government  affidavits say that Mele  went with            the  agents to the DEA  field office voluntarily  and that he            was not told the money would  be seized until some time after            they  had arrived  at the  office.   Mele, on  such evidence,            plainly  consented to going to the DEA office, and his Fourth                                         -11-                                          11            Amendment arguments  are baseless.5   There are  no colorable            Fourth  Amendment concerns where an officer simply asks a few            questions to a civilian, who voluntarily allows the encounter            to  continue.  See, e.g.,  Florida v. Bostick,  501 U.S. 429,                           ___  ____   _______    _______            434 (1991) ("The encounter  will not trigger Fourth Amendment            scrutiny unless it loses its consensual nature."); Florida v.                                                               _______            Rodriguez, 469 U.S. 1, 5-6 (1984); Florida v. Royer, 460 U.S.            _________                          _______    _____            491,  497 (1983) (plurality  opinion).   Nor is  an otherwise            consensual encounter stripped of its consensual nature by the            mere act  of moving to  a police office.   See, e.g.,  United                                                       ___  ____   ______            States v. Mendenhall, 446  U.S. 544, 557-58 (1980) (plurality            ______    __________            opinion); United  States v.  Jodoin, 672  F.2d 232,  234 (1st                      ______________     ______            Cir. 1982).                      The agents did not  violate Mele's Fourth Amendment            rights during their Logan Airport encounter with him.  Mele's            money was lawfully seized, and thus the forfeiture proceeding            that followed  was not tainted  by unconstitutional  conduct.            The  dispositive  issue  with  respect  to  the  government's                                            ____________________            5.  The  voluntariness  of  Mele's  verbal consent  might  be            called into question if  the agents had seized his  money, or            told him they intended to seize  it, prior to his agreeing to            accompany them to the DEA field office.  Cf. United States v.                                                     ___ _____________            $83,900, 774 F. Supp. 1305, 1317 (D. Kan. 1991) ("The seizure            _______            of  the  currency  by   [the  officer]  and  [the  officer's]            expressed intention  to keep the currency  until its legality            could  be  determined were  objective  reasons  rendering the            encounter nonconsensual  from that  point on.   No reasonable            person would voluntarily leave such a large sum of money with            a law enforcement officer  with the promise that it  would be            returned later if it  all checked out.").  This  issue is not            presented here.                                         -12-                                          12            forfeiture case,  then, is  whether there was  probable cause            for forfeiture.            B.  Probable Cause for Forfeiture                      The district court  correctly found that  there was            probable cause to believe that Mele was involved in some kind            of illegal activity, but erred in finding that the government            had  failed  to  establish  a sufficient  nexus  between  his            suspicious  activity and  the illegal  drug trade,  which the            forfeiture statute, 21 U.S.C.   881, requires.                      In civil forfeiture cases brought by the government            under    881, U.S. Customs procedures  control the allocation            of  the  parties'  burdens  of  proof.  21  U.S.C.     881(d)            (incorporating by reference U.S.  Customs procedures).  Those            procedures employ a burden shifting mechanism.  See 19 U.S.C.                                                            ___              1615; United States v. $5,644,540, 799 F.2d 1357, 1362 (9th                    _____________    __________            Cir. 1986).  Under this mechanism, the government must at the            outset demonstrate  that it  has probable cause  to institute            the forfeiture  proceeding.  United States v. 255 Broadway, 9                                         _____________    ____________            F.3d 1000, 1003-04 (1st  Cir. 1993).  More  specifically, the            government  must show that  it has probable  cause to believe            "that the  property had  the requisite  nexus to  a specified            illegal purpose."  United States v. $68,000, 927  F.2d 30, 32                               _____________    _______            (1st  Cir. 1991).6    When the  government  seeks to  forfeit                                            ____________________            6.  This circuit has most recently described the government's            burden as being one  of showing a "nexus."   See $68,000, 927                                                         ___ _______            F.2d  at  32.   Earlier  cases  used  the  term  "substantial                                         -13-                                          13            money, the nexus can be shown by demonstrating probable cause            to  believe either that the money represented the proceeds of            a drug sale, see 255 Broadway, 9 F.3d at 1004, or that it was                         ___ ____________            intended  to be used in  the purchase of  drugs, see $68,000,                                                             ___ _______            927 F.2d at 32.   The government need not trace the  money to            any particular  drug transaction.   255 Broadway,  9 F.3d  at                                                ____________            1004; United States v. Parcels of Land, 903 F.2d 36, 38  (1st                  _____________    _______________            Cir. 1990); United States v. $250,000, 808  F.2d 895, 899-900                        _____________    ________            (1st  Cir. 1987).   Once  the government  has made  the nexus            showing,  the burden then shifts to the claimant to show by a            preponderance  of  the  evidence  that the  property  is  not            subject  to  forfeiture.    255 Broadway,  9  F.3d  at  1004;                                        ____________            $68,000, 927 F.2d at 32; $250,000, 808 F.2d at 897; cf. Degen            _______                  ________                   ___ _____            v.  United  States,  116  S.  Ct.  1777,  1781  (1996)  ("The                ______________            Government has shown probable  cause to forfeit the property,            and [claimant] must refute the showing or suffer its loss.").                      Burden   shifting   aside,   probable   cause   for            forfeiture may be measured by what the government knew at the            time of  the institution  of the forfeiture  proceedings, not                                            ____________________            connection."  United States v. 28 Emery  St., 914 F.2d 1, 3-4                          _____________    _____________            (1st Cir. 1990) (citing cases).  We need not resolve whether,            as  some cases  suggest,  "nexus" means  something less  than            "substantial  connection."   Cf. United  States v.  West Side                                         ___ ______________     _________            Building  Corp., 58  F.3d  1181, 1188  n.13  (7th Cir.  1995)            _______________            (comparing the two standards and endorsing "nexus" standard);            United States v. Daccarett,  6 F.3d 37, 55-56 (2d  Cir. 1993)            _____________    _________            (same), cert. denied, 510 U.S. 1191 and 510 U.S. 1192 (1994).                    ____________                ___            The  facts adduced here are more than adequate to establish a            "substantial connection."                                          -14-                                          14            just what it knew at the time of the seizure.   255 Broadway,                                                            ____________            9 F.3d at 1004; United States v. $191,910, 16 F.3d 1051, 1066                            _____________    ________            (9th  Cir. 1994); United States v. $12,390, 956 F.2d 801, 806                              _____________    _______            n.5 (8th Cir. 1992).                      Probable cause for the  purpose of   881 forfeiture            means  a "reasonable ground" for believing  that the money is            connected with  illegal drug  transactions.  255  Broadway, 9                                                         _____________            F.3d at 1004; 28 Emery St., 914 F.3d at 3; $250,000, 808 F.2d                          ____________                 ________            at 897.  This  standard requires more than "mere  suspicion,"            but less than "prima  facie proof."  255 Broadway,  9 F.3d at                                                 ____________            1004; 28 Emery St., 914 F.3d at 3; $250,000, 808 F.2d at 897.                  ____________                 ________            And "'[b]ecause there  are so many variables  in the probable            cause equation,  probable cause  findings are  not invariably            bound  by precedent.'"  255 Broadway, 9 F.3d at 1004 (quoting                                    ____________            United  States v. Maguire, 918 F.2d 254, 258 (1st Cir. 1990),            ______________    _______            cert. denied, 499 U.S. 950 and 501 U.S. 1234 (1991)).            ____________               ___                      The evidence  shows the government  met its  burden            for establishing a nexus to drug activity:                      (1) Mele  is associated  with two persons  known to            the  agents  as  accused   drug  traffickers,  Bucci  (Mele's            business  partner)  and  Penta  (Mele's  employee).    Mele's            nonsensically roundabout route to Logan Airport the night his            money  was seized -- from Saugus, via Medford, to East Boston            -- indicated  that he probably  stopped at  Bucci's house  en                                         -15-                                          15            route.7   Further,  Bucci accompanied  Mele and  his attorney            when  they returned to the DEA field office the morning after            the seizure.   And Mele  had bailed out  Penta after  Penta's            earlier arrest for drug trafficking;                      (2) Mele was carrying $36,634 in cash;                      (3)  He  purchased a  cash  ticket  on a  "red-eye"            flight to a  "source city"  and traveled with  only a  nearly            empty carry-on bag;                      (4) He appeared to be very nervous as he bought his            ticket, and became even  more nervous when questioned  by the            agents,  to  whom he  gave  evasive,  implausible, and  false            answers as to what he planned to do on his trip;                      (5)   Mele's  associate  Penta  had  recently  been            apprehended at  Logan Airport after arriving  with drugs from            the same city  on the same  flight on which Mele  intended to            return; and                      (6) A trained narcotics-detection dog  "alerted" to            Mele's money the day  after the money was seized,  indicating            that the money had come into contact with illegal drugs.                      The  government aptly  likens probable  cause to  a            wall,  each of whose bricks represents a piece of evidence in            the overall  probable cause  equation.  Courts  "'review each            piece of evidence only to  determine whether it is probative,                                            ____________________            7.  A  traveler taking  a  normal route  from  Saugus to  the            airport, which is southeast of Saugus, would not pass through                                   ____            Medford, which is southwest of Saugus.                                   ____                                         -16-                                          16            not whether it  establishes probable cause standing  alone.'"            255  Broadway,  9 F.3d  at  1004  (quoting  United States  v.            _____________                               _____________            $67,220, 957 F.2d 280, 285 (6th  Cir. 1992)).  Even where "no            _______            particular   circumstance  is   conclusive,"   it   is   "the            'aggregate' of  the facts" that  is examined.   $250,000, 808                                                            ________            F.2d at  899 (quoting United  States v. $93,685.61,  730 F.2d                                  ______________    __________            571,  572 (9th Cir.), cert.  denied, Willis v. United States,                                  _____________  ______    _____________            469 U.S. 831  (1984)).   Mele attacks each  brick alone,  but            fails  effectively  to attack  the  wall  of probable  cause.            Taken as a whole, the facts here are more than adequate.                      We  start  with Mele's  ties  to  Bucci and  Penta.            Association  with  known  criminals,  without  more,  is,  of            course, not  enough to establish probable cause.   See United                                                               ___ ______            States  v. Coggins, 986 F.2d  651, 655 (3d  Cir. 1993) ("Mere            ______     _______            association  with a  known criminal  cannot on  its own  be a            basis  for  a  'reasonable  suspicion.'"  (citing  Ybarra  v.                                                               ______            Illinois, 444  U.S.  85, 91  (1979))); 2  LaFave, Search  and            ________                                          ___________            Seizure,    3.6(c), at 308  n. 100 (3d  ed. 1996).   But here            _______            there are additional facts that deepen the probative value of            Mele's association  with the  accused drug  traffickers Bucci            and Penta:  Mele's  strange route to the airport;  Mele's and            Penta's nearly identical itineraries; Bucci's appearance with            Mele at the DEA office; and Mele's bailing out  of Penta with            a large  sum of cash  when banks were  closed.  This  is more            than  "an incidental or fortuitous connection," United States                                                            _____________                                         -17-                                          17            v. 1933 Commonwealth Avenue,  913 F.2d 1, 3 (1st  Cir. 1990),               ________________________            to known drug trafficking activity.                      Mele was  also carrying  an extremely large  sum of            cash.8   See United States v. $37,780,  920 F.2d 159, 163 (2d                     ___ _____________    _______            Cir. 1990) ("Hernandez was carrying an extremely large sum of            cash [$37,780] in small  denominations, demonstrating that he            was  either  inordinately  carefree  with his  money  or  was            involved in illegal  activity."); United States v.  $175,260,                                              _____________     ________            741 F.  Supp 45,  47 (E.D.N.Y.  1990)  (carrying $175,000  in            airport contributes to probable cause for forfeiture  because            that is far more than the average person carries).  Given the            other  facts here, it is  not fatal to  the government's case            that Mele was not carrying drugs or drug paraphernalia at the            time the  money was seized  from him.   See United  States v.                                                    ___ ______________            $215,300,  882 F.2d  417,  419 (9th  Cir. 1989)  ("Carrying a            ________            large  sum of cash is  'strong evidence' of  [a connection to            illegal drug activity] even without the presence  of drugs or            drug  paraphernalia." (quoting  United States  v. $83,310.78,                                            _____________     __________            851 F.2d 1231, 1236 (9th Cir. 1988))), cert. denied, 497 U.S.                                                   ____________            1005 (1990).                      Indeed, Mele's behavior at the airport only deepens            the  probable cause.     See  generally  2 LaFave,  supra,                                        ___  _________             _____                                            ____________________            8.  Contrary to  the government's argument, however, there is            little  significance  in  the   fact  that  Mele's  cash  was            "concealed," i.e., that  it he  carried it in  a fanny  pack.            Few people  carry money,  especially large sums,  in any  way            other than "concealed."                                         -18-                                          18            3.6(e), at 327-33 (false, evasive, or misleading responses to            officers' questions  can contribute  to probable cause).   In            particular,  his claims  that he  intended to  gamble in  Las            Vegas and look for a pizza shop to buy there made no sense in            light  of the  fact that  his ticket  provided only  a brief,            middle-of-the-night  layover in  that  Nevada city.   As  the            Second Circuit  has rightly  observed, an  "evasive, confused            explanation  for carrying such  a large  sum" serves  only to            "further arouse[] . . . suspicion[]."   $37,780, 920  F.2d at                                                    _______            163.9                      Mele's obvious nervousness, evident both before the            agents approached him and  during the interview, although not                                            ____________________            9.  We  do  not, however,  agree  with  the Second  Circuit's            suggestion that  "[i]t may well be that through the byzantine            world  of  forfeiture law,  [C]ongress  and  the courts  have            implicitly   created  a   rebuttable  presumption   that  the            possession of large  amounts of  cash is per  se evidence  of            illegal activity."  $37,780, 920 F.2d at 162.                                _______                As  for  Mele's cash  purchase  of the  ticket,  this has            limited probative value.   But see United  States v. Sokolow,                                       ___ ___ ______________    _______            490  U.S. 1, 8-9  (1989) ("Most  business travelers,  we feel            confident, purchase  airline tickets by credit  card or check            so as to have a record  for tax or business purposes, and few            vacationers  carry  with them  thousands  of  dollars in  $20            bills.").  The designation  by the government of  Los Angeles            as  a "known  source city"  for narcotics  is also  of little            importance.  See United States v. Glover, 957 F.2d 1004, 1017                         ___ _____________    ______            (2d  Cir.  1992) (Oakes,  C.J.,  dissenting)  ("As cases  too            numerous  to  cite  have  pointed out,  'source  cities,'  as            testified to  by law enforcement officers,  include virtually            every city in the  United States of any size. . . .   'Source            city' is essentially a meaningless term.").                Like the factors discounted by  the Supreme Court in Reid                                                                     ____            v. Georgia, 448  U.S. 438  (1980), these two  factors do  not               _______            meaningfully "relate[]  to [Mele's] particular  conduct," and            they are also evident in "a very large category of presumably            innocent travelers."  Id at 441.                                  __                                         -19-                                          19            alone of much probative value, see Jones v. DEA, 819 F. Supp.                                           ___ _____    ___            698, 702  (M.D. Tenn.  1993) (noting that  air travelers  are            "often  nervous about  their trip  and the  dangers, real  or            imagined, which air  travel poses to  them"), does have  some            probative value when seen in combination with the rest of the            story.  See 2 LaFave, supra,   3.6(f), at 327-33 & n.160.                    ___           _____                      Finally, the dog's reaction, indicating that Mele's            money  had at some  point come  into contact  with narcotics,            weighs some, but not a great  deal, on the scale.  See United                                                               ___ ______            States  v.  $30,060,  39  F.3d  1039, 1042  (9th  Cir.  1994)            ______      _______            (declining   to   find   probable   cause   where  government            essentially based entire case on dog reaction).  "Even though            widespread  contamination of  currency  plainly  lessens  the            impact of  dog sniff  evidence, a  trained dog's  alert still            retains some probative  value.  Ordinary experience  suggests            that currency used  to purchase narcotics is more likely than            other currency to have come into contact with drugs."  United                                                                   ______            States  v. Saccoccia, 58 F.3d 754, 777 (1st Cir. 1995), cert.            ______     _________                                    _____            denied, 116 S. Ct. 1322 (1996).            ______                      Thus,  both Mele's  conduct  and  the money  itself            provide  probable   cause  for   the  government   to  obtain            forfeiture of the money.                      The judgment  of the district court  is vacated and                                                              _______            the case is remanded with instructions to enter  judgment for                        ________            the United States.                                         -20-                                          20
