United States of America, Ruby Hysell, Claimant-Appellant v. Currency, U.S. $42,500.00

(Concurring):

The Preamble to the American Bar Association’s Model Rules of Professional Conduct states:

Model Rules of Prof 1 Conduct, pmbl. ¶¶ 3-4.

It is a mistake to regard the adversary system as an opportunity to see what you can get away with or if you can pull the wool over a court’s eyes. This case, as *985 filed and pursued, gives every appearance that counsel is representing not Ms. Hy-sell, but protecting someone behind the scenes who prefers not to be identified. If Ms. Hysell is too indigent to afford to travel to San Diego for a deposition, and if she does not own this money, one can only wonder what arrangement counsel and “Lankford” have with respect to its disposition should they be successful in its recovery. Counsel’s current argument regarding his performance during the deposition and afterwards that he “did not ever agree to produce[Lankford’s’] telephone number and/or address outside of formal discovery” is the kind of assertion that draws the legal profession into ill repute.

Although private attorneys are held to different standards than government prosecutors, see Berger v. United States, 295 U.S. 78, 88-89 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935), such…

Opinion by Judge TROTT; Concurrence by Judge TROTT.

Ruby Diane Hysell (“Hysell”) appeals the district court’s grant of forfeiture in favor of the United States on summary judgment. Hysell contends the government lacked probable cause to seek the forfeiture of $42,500 and thus, that she is entitled to go to trial in order to prove that the currency was not entangled with illegal drug transactions. We disagree. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm the district court’s grant of summary judgment.

I

BACKGROUND

If Sherlock Holmes were recounting the tale of this case, he would no doubt call it The Case of the Cellophane Claim.

On April 17, 1998, Hysell flew from New York to San Diego on a round-trip ticket scheduled to return in one week. Based on a referral from task force officer Kevin O’Malley of the San Francisco DEA/Airport Interdiction Unit, task force officers Weil and Hansen greeted Hysell at the San Diego airport. Weil and Hansen identified themselves and asked if they could *979 search Hysell’s luggage. Hysell consented to the search.

While waiting for the luggage to arrive at baggage claim, Hysell told the officers that she did not pack all…

283 F.3d 977 UNITED STATES of America, Plaintiff-Appellee, Ruby Hysell, Claimant-Appellant, v. CURRENCY, U.S. $42,500.00, Defendant. No. 00-55875. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 9, 2001. Filed March 13, 2002. As Amended March 26, 2002. Richard M. Barnett, San Diego, CA, for the claimant-appellant. Patrick K. O'Toole, United States Attorney, Rupert A. Linley, Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California, Thomas J. Whelan, District Judge, Presiding. D.C. No. CV-99-00770-TJW. Before: SCHROEDER, Chief Judge, TROTT, and RAWLINSON, Circuit Judges. Opinion by Judge TROTT; Concurrence by Judge TROTT. TROTT, Circuit Judge. 1 Ruby Diane Hysell ("Hysell") appeals the district court's grant of forfeiture in favor of the United States on summary judgment. Hysell contends the government lacked probable cause to seek the forfeiture of $42,500 and thus, that she is entitled to go to trial in order to prove that the currency was not entangled with illegal drug transactions. We disagree. We have jurisdiction…