United States of America v. $10,100.00 in United States Currency
Default Judgment of Forfeiture. Granting 8 Motion for Default Judgment; granting 8 Motion for Entry of Judgment; granting 8 Motion for Forfeiture of Property. Signed by District Judge Martin Reidinger on 08/02/12. (emw)
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:12cv69
UNITED STATES OF AMERICA,
$10,100.00 in UNITED STATES
THIS MATTER is before the Court on the Plaintiff’s Motion for Default
Judgment, Entry of Judgment, and Final Order of Forfeiture [Doc. 8].
PROCEDURAL AND FACTUAL HISTORY
The Plaintiff initiated this action for civil in rem forfeiture on April 10,
2012. [Doc. 1]. In the Verified Complaint for Forfeiture In Rem, it is alleged
that on October 26, 2011, a package with tracking number 875661216919
was located at the FedEx office on Patton Avenue, Asheville, North Carolina.
[Id. at 2]. The package was addressed to Rob Marcial (Marcial), 303 South
Oceanside Hwy, Oceanside, California 92054. [Id.]. Although no reason is
cited in the complaint, Officer Scott Muse (Muse) of the Asheville Police
Department and his canine Boris were called to the scene. [Id.]. Officer Muse
and Boris are a trained and certified drug detection team. [Id.]. Boris alerted
to this package despite its location next to three other packages of similar size
and shape. [Id.].
Muse then applied for and received a search warrant for the package
which, when opened, contained $10,100.00 in United States currency. [Id. at
The individual who had sent the package was Brian Lee Williams
(Williams) although the package was actually delivered to the FedEx office by
Cody Lee Landis McCurry (Cody McCurry) at Williams’ direction. [Id.]. Agent
Tracy Crowe of the Drug Enforcement Administration telephoned Williams
who voluntarily stated that he had sent the package at issue to Marcial in
order to pay for repairs to a vehicle. [Id.].
On November 17, 2011, North Carolina State Trooper Aaron Ammons
(Ammons) executed a traffic stop in Swain County, North Carolina on a black
BMW traveling thirty miles per hour over the posted speed limit of sixty miles
per hour. [Id.]. Williams was the driver and sole occupant of the BMW. [Id.].
The license plate on the black BMW had been issued to a different vehicle.
Ammons arrested Williams who, upon receiving Miranda 1 rights,
consented to a search of the vehicle. [Id.]. When Ammons found a duffle bag
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
in the trunk of the car, Williams voluntarily stated that the bag did not belong
to him and consented to a search of the inside of the bag. [Id. at 4]. Inside
the bag were found four sealed bags containing a total of 1,950 grams of
On April 16, 2012, the Government sent personal notice by certified
mail, return receipt requested pursuant to Rule G(4)(b)(i) of the Supplemental
Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions to
Williams that the package had been seized, notifying him of this forfeiture
action and of his right to submit a verified claim. [Doc. 6-2]. The notice was
returned with a forwarding address. [Id.].
On April 16, 2012, the Government sent the notice by certified mail,
return receipt requested a second time to Williams at the forwarding address.
[Doc. 6-3]. That notice was returned as unclaimed. [Id.]. On the same date,
the notice was sent by certified mail, return receipt requested to Williams in
the care of his attorney, Kris Williams. [Doc. 6-4]. This time the notice was
received and signed for by an individual in the attorney’s office. [Id.].
On April 16, 2012, the Government sent personal notice by certified
mail, return receipt requested to Marcial at the California address to which the
package had been addressed. [Doc. 6-5].
That mail was returned as
undeliverable because there was “no such number.” [Id.]. On April 30, 2012,
the Government sent notice to Marcial at a slightly different address found
within the investigative file and that notice, sent certified mail, return receipt
requested, was received. [Doc. 6-6; Doc. 6-7].
On April 30, 2012, the Government sent personal notice by certified
mail, return receipt requested to Cody McCurry at his last know address. [Doc.
6-8]. The return receipt was signed by Travis McCurry and returned to the
In addition to the mailings of notice, the Government also provided
notice by publication on the official internet government forfeiture site,
www.forfeiture.gov, for at least thirty consecutive days pursuant to Rule
G(4)(a)(iv)(C) of the Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions. [Doc. 5; Doc. 6].
No person or entity has filed a claim or answer in this action. On June
22, 2012, the Government moved for entry of the default. [Doc. 6]. On June
28, 2012, the Clerk of Court entered default. [Doc. 7]. On July 3, 2012, the
Government for a default judgment of forfeiture. [Doc. 8].
The Government seeks forfeiture of the currency contained in the
package Williams attempted to mail to Marcial based on the alert by the drug
detection canine and the subsequent discovery of marijuana in the vehicle
being driven by Williams. The Government has shown that the currency is the
proceeds of and/or intended to be furnished in exchange for controlled
substances and/or used or intended to be used to facilitate controlled
substances violations. 21 U.S.C. §881(a).
In addition to the personal notices, the Government provided publication
of notice on the official internet government forfeiture site, www.forfeiture.gov,
for at least thirty consecutive days pursuant to Rule G(4)(a)(iv)(C) of the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions. Whiting v. United States, 231 F.3d 70, 76 (1 st Cir. 2000) (“Due
process requires the government to afford an owner ‘notice and an
opportunity to be heard’ before civilly forfeiting his property, but actual receipt
of notice by the defendant is not automatically required. Rather, ... due
process requires the provision of ‘notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.’”) (internal quotation
and citations omitted).
The Court finds that the allegations of the complaint and the
supplemental filings establish that the currency at issue was the proceeds of
and/or intended to be furnished in exchange for controlled substances and/or
used or intended to be used to facilitate controlled substances violations. 21
U.S.C. §881(a). The Court also finds that the Government has established
that no potential claimant has timely filed a claim or otherwise answered and
default judgment is therefore appropriate.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the
Plaintiff’s Motion for Default Judgment, Entry of Judgment, and Final Order of
Forfeiture [Doc. 8] is hereby GRANTED and Default Judgment against the
Defendant $10,100.00 in United States Currency is hereby ENTERED in favor
of the United States of America.
Signed: August 2, 2012