United States of America v. Nineteen Thousand Eight Hundred Fifty Five ($19,855.00) Dollars in United States Currency

Filing 43

MEMORANDUM OPINION AND ORDER directing that claimant's : 9 , 13 , and 19 MOTIONS to Dismiss are DENIED; plaintiff's 40 MOTION to Strike is DENIED as moot. Signed by Chief Judge William Keith Watkins on 11/19/12. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
NINETEEN THOUSAND EIGHT
)
HUNDRED FIFTY FIVE ($19,855.00) )
DOLLARS IN UNITED STATES
)
CURRENCY,
)
)
Defendant.
)

CASE NO. 2:12-CV-146-WKW
[WO]

MEMORANDUM OPINION AND ORDER
This is a civil forfeiture action brought in rem against a sum of money seized
from Claimant, Michael Dale Bennett. Plaintiff, the United States of America, seeks
forfeiture of the defendant res pursuant to 21 U.S.C. § 881(a)(6). Claimant has filed
three motions to dismiss: two based on Federal Rule of Civil Procedure 12(b)(6)
arguing that the Government has failed to state a claim upon which relief can be
granted (Doc. # 9), and a third based on Rule 12(b)(1) asserting that the court lacks
jurisdiction over the res (Doc. # 13). Claimant’s motions are due to be denied.
I. JURISDICTION AND VENUE
The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1345, 1355,
and 21 U.S.C. § 881. Claimant argues that this court lacks in rem jurisdiction, but for

the reasons set forth in Part IV.A., the court finds that it does have in rem jurisdiction.
Venue is proper pursuant to 28 U.S.C. §§ 1355 and 1395.
II. STANDARDS OF REVIEW
A.

Motion to Dismiss for Lack of Jurisdiction
Claimant facially attacks the complaint, arguing that the Circuit Court of

Lowndes County, Alabama, had prior, exclusive in rem jurisdiction, which attached
automatically when Lowndes County authorities seized the res.
In a facial attack, the question is whether the complaint sufficiently alleges a
basis for jurisdiction. McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501
F.3d 1244, 1251 (11th Cir. 2007). As when considering a motion to dismiss for
failure to state a claim, on a Rule 12(b)(1) facial attack, the court construes the
complaint in the light most favorable to the plaintiff and accepts all well-pleaded facts
as true. Id.
B.

Motion to Dismiss for Failure to State a Claim
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the legal

standard articulated by Rule 8: “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6)
motion, a complaint must contain sufficient factual allegations, “accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Notwithstanding the Rule 12(b)(6) standard, Supplemental Rule G(2) also
governs the sufficiency of the complaint in civil forfeiture cases.1 Fed. Supp. R.
G(8)(b)(ii). Supplemental Rule G(2) requires a verified complaint stating the grounds
for subject matter jurisdiction, in rem jurisdiction, and venue. Fed. Supp. R. G(2)(a)
& (b). The complaint must also describe the property with reasonable particularity;
if the property is tangible, allege its current location and its location when seizure
occurred; and identify the statute enabling forfeiture. Fed. Supp. R. G(2)(c)–(e).
Finally, the complaint must “state sufficiently detailed facts to support a reasonable
belief that the government will be able to meet its burden of proof at trial.” Fed. Supp.
R. G(2)(f). “No complaint may be dismissed on the ground that the Government did
not have adequate evidence at the time the complaint was filed to establish the
forfeitability of the property.” 18 U.S.C. § 983(a)(3)(D); Fed. Supp. R. G(8)(b)(ii).

1

The Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions apply, among others, to all in rem forfeiture actions brought pursuant to a federal statute.
Fed. Supp. R. A(1)(b). Where the Supplemental Rules apply, the Federal Rules of Civil
Procedure also apply, “except to the extent that they are inconsistent with” the Supplemental
Rules. Fed. Supp. R. A(2).
3

III. FACTUAL AND PROCEDURAL BACKGROUND
On September 2, 2011, Deputy H. A. Cox of the Lowndes County, Alabama
Sheriff’s Department stopped a car on Interstate 65 in Lowndes County for following
too closely. Adrian Dion Pettaway was driving, and Claimant was riding in the
passenger seat. When Mr. Pettaway handed his driver’s license and proof of insurance
to Deputy Cox, Mr. Pettaway’s hand shook tremendously, and the smell of marijuana
emanated from the vehicle. (Doc. # 1.)
Upon questioning, Mr. Pettaway told Deputy Cox that he had smoked
marijuana within ninety minutes of the stop. Deputy Cox asked the men several more
questions. Although the men denied having any more marijuana, Claimant admitted
to carrying $8,000 to $10,000 in his bag. (Doc. # 1.) Regarding prior arrests, Mr.
Pettaway told Deputy Cox that he was previously arrested on drug charges,2 while
Claimant replied that he had never been arrested. In fact, Claimant Michael Dale
Bennett, also known as Roderick Neal Bennett, was arrested in 1999 in Escambia
County, Florida, for marijuana distribution.3

2

Mr. Pettaway had a 2004 conviction for possession of cocaine and drug trafficking in
Meriwether County, Georgia. (Doc. # 1.)
3

He entered a guilty plea in July that year to a first degree misdemeanor, adjudication
withheld. (Doc. # 1.)
4

After dispatch ran criminal background inquiries on the men, Deputy Cox
learned that there was an outstanding warrant for Mr. Pettaway’s arrest in Escambia,
Florida, for aggravated assault with a deadly weapon and that both men had positive
criminal histories for illegal drugs as well as aliases. (Doc. # 1.) Dispatch also
informed Deputy Cox – based on a search of the vehicle’s license plate number – that
Mr. Pettaway had rented the car from Enterprise Car Rentals, though Mr. Pettaway did
not have a rental agreement with him. (Doc. # 1.)
At some point, Deputy Cox searched the vehicle.4 He found a black backpack
behind the passenger’s seat and, inside the bag, a microwave popcorn box. The box
contained cash – the defendant res – in four stacks secured with rubber bands. (Doc.
# 1.) Rather than the $8,000 or $10,000 Claimant indicated he carried, there was
almost $20,000. The search yielded no drugs or drug paraphernalia, but when a
trained dog arrived on the scene, the dog alerted to the presence of drugs in the vehicle
and on the currency. (Doc. # 1.)
The state law enforcement officers seized the cash pursuant to their authority
under Alabama law. After the September 2011 traffic stop but before February 2012
– when the Government filed its forfeiture complaint – the state authorities turned the

4

While the forfeiture complaint does not state that Deputy Cox conducted the search
upon consent, as a search incident to a lawful arrest, or under some other exception to the
warrant requirement, Claimant has not challenged the constitutionality of the search.
5

res over to the United States Marshals Service, which now has custody of the res.
(Doc. # 1.) The United States seeks forfeiture pursuant to 21 U.S.C. § 881(a)(6). At
the time the United States brought its forfeiture complaint, no state authorities had
filed any action in state court to effectuate forfeiture of the res, nor had Claimant filed
any action in state court to recover the res.
After the Government filed its verified complaint, Claimant timely filed a
verified claim contesting the forfeiture action in accordance with Supplemental Rule
G(5)(a). (Doc. # 6.) Claimant next filed two motions to dismiss for failure to state a
claim.5 (Docs. # 9 & 13.) The Government responded to Claimant’s motions (Doc.
# 17), and then Claimant filed a third motion to dismiss alleging that the court lacked
in rem jurisdiction (Doc. # 19).
Claimant filed two of his three motions to dismiss after the deadline imposed
by Supplemental Rule G(5)(b), which states that “[a] claimant must serve and file an
answer to the complaint or a motion under Rule 12 within 21 days after filing the
claim.” Under the terms of the same rule, a claimant waives any objection to in rem
jurisdiction if he does not object by motion or in an answer. Fed. Supp. R. G(5)(b).
Claimant filed his claim on March 15, 2012, making the deadline for filing a Rule 12
5

The motions were filed twenty-two days apart and were virtually identical, except that
the second included exhibits. Pursuant to Rule 12(d), the court will exclude the exhibits from its
consideration and treat the motion as a Rule 12(b)(6) motion, rather than converting it to a Rule
56 motion for summary judgment.
6

motion April 5, 2012. Though Claimant’s first Rule 12 motion, filed on March 28,
2012 (Doc. # 9), came within the deadline, it did not raise any arguments regarding
in rem jurisdiction.

The next two came fourteen and thirty-four days late,

respectively. (Docs. # 13 & 19.) Only the third raised a jurisdictional argument.6
On June 5, 2012, Claimant filed a complaint in the Circuit Court of Lowndes
County for the return of his seized property. (Doc. # 38, Ex. 1.)
IV. DISCUSSION
A.

In rem Jurisdiction
Alabama law “neither expressly nor impliedly prohibits a state or local

law-enforcement agency from transferring seized property to federal authorities.”
Green v. City of Montgomery, 55 So. 3d 256, 261 (Ala. Civ. App. 2009) (citing Ala.
Code § 20-2-93). The state’s general forfeiture provision allows state and local
officials to “transfer seized property to another governmental entity,” including a
federal entity, “so long as the disposition of the property is ‘in accordance with law.’”
Id. (quoting Ala. Code § 20-2-93(d)). The disposition need not be in accordance with
Alabama law. Id. Federal adoption of a state forfeiture, implicitly authorized by 21

6

It appears Claimant waived his objection to in rem jurisdiction by not timely raising it.
See Fed. Supp. R. G(5)(b). Because the Government has not argued waiver, the jurisdictional
question is taken up on its merits below.
7

U.S.C. § 881(e)(1)(A), has the same effect as if the seizure had originally been made
by the United States.
Despite this adoptive forfeiture system, only one court may have in rem
jurisdiction over a res, and the first court to acquire jurisdiction maintains it to the
exclusion of other courts. Penn Gen. Cas. Co. v. Penn., 294 U.S. 189, 195 (1935); see
also Madewell v. Downs, 68 F.3d 1030, 1041 n.13 (8th Cir. 1995) (collecting cases).
Claimant asserts that seizure of the res by Lowndes County authorities immediately
vested jurisdiction over the res in the state court of Lowndes County, thus depriving
this court of jurisdiction. But the Alabama Court of Civil Appeals already has
established that, contrary to Claimant’s argument, jurisdiction does not vest in the
state court immediately upon seizure by state authorities. See Green, 55 So. 3d at 259
(remarking that “Alabama law requires a two-step process of possession and then
filing of an in rem action” to vest jurisdiction in an Alabama court).
In Green, City of Montgomery police officers seized $30,000 during a traffic
stop and then transferred the seized currency to federal authorities to effect adoptive
forfeiture. Id. Adoptive forfeiture failed, however, because before federal in rem
jurisdiction could attach, Green and the other occupants of the vehicle filed an in rem
action in state court seeking return of the money. The court reasoned that federal in
rem jurisdiction requires only possession by federal authorities and attaches when the
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res “is ‘taken or detained’ during a time when no other court has jurisdiction over the
res.” Id. at 264 (quoting 21 U.S.C. § 881(c)). Because Green filed his state court
action before federal approval of the adoptive seizure request and before federal
authorities had actual possession of the res, the state court had jurisdiction over the
res earlier in time. Id.
Jurisdiction does not vest automatically in a state court under Alabama law. For
if it did, it would have been irrelevant that Green arrived at the state courthouse before
the United States took possession of the res. Further application of Green resolves
this case. Here, unlike Green, both federal approval of the adoptive seizure and
federal possession of the res preceded any action in state court. Thus, jurisdiction
over the res attached in this court when no other court had jurisdiction.
Claimant does not cite, and the court could not find, any ruling by the Alabama
Supreme Court or the Supreme Court of the United States that calls these principles
from Green into question.7 Moreover, the more recent precedent of the Alabama
7

Though Claimant cites numerous Alabama Supreme Court cases, none establishes that
Alabama law prohibits state authorities from cooperating with federal authorities to achieve
adoptive forfeiture, or that jurisdiction automatically vests in state court upon seizure by state
authorities. See, e.g., State v. 2018 Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999) (holding
that, under Alabama law, a city lacked standing to file a condemnation and forfeiture action);
Howell v. State ex. rel. Goodrich, 34 So. 2d 142, 144 (Ala. 1948) (noting that, under the
precursor to Ala. Code § 20-2-93, forfeiture actions had to be instituted “in the name of the State
on relation of the solicitors of the state”); In re One Ford Auto., 87 So. 842, 842 (Ala. 1921)
(reversing order of forfeiture because solicitor filed forfeiture petition on behalf of state without
a preliminary seizure by state authorities). Likewise, no court appears to have interpreted the
Supreme Court of the United States precedent Claimant cites to impose a turnover requirement.
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Court of Civil Appeals does not undermine the holding of Green as applied here.8
Accordingly, in rem jurisdiction vested in this court no later than February 2012.
B.

The Sufficiency of the Complaint
Having resolved the jurisdictional question, the court turns to whether the

forfeiture complaint states a claim in compliance with Rule G(2) of the Supplemental
Rules and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Claimant argues,
most basically, that the complaint fails because it does not sufficiently allege a nexus
between the res and a violation of 21 U.S.C. § 841(a). According to Claimant, the
Government contends only that the res “is tied to illegal drug sale(s).” (Doc. # 9.)
Claimant’s challenge fails, however, because the Government’s contentions satisfy
the standard established by Supplemental Rule G(2).
Supplemental Rule G(2)(f) demands that a forfeiture complaint “state
sufficiently detailed facts the support a reasonable belief that the government will be
able to meet its burden of proof at trial.” To succeed in a civil forfeiture case at trial,
the United States must prove by a preponderance of the evidence that the property is

8

Ex parte Bingham only confirms that adoptive forfeiture’s validity does not depend
“upon the participation of federal authorities in the seizure itself.” --- So. 3d ---- (Ala. Civ. App.
2012), 2012 WL 29172, at *2. And however much the distinction drawn in Alexander v. City of
Birmingham calls Green into question, it does so only for property seized after a search pursuant
to a warrant, not for property seized, as in this case, after a warrantless search. --- So. 3d ---(Ala. Civ. App. 2012), 2012 WL 2477914, at *6 (holding that jurisdiction over res vested in state
court immediately upon seizure based on language in the warrant that authorized the search and
led to the seizure).
10

subject to forfeiture. 18 U.S.C. § 983(c)(1). Because the Government seeks forfeiture
based on 21 U.S.C. § 881(a)(6), which calls for forfeiture of property used in or
traceable to the sale of illegal drugs, it must also demonstrate at trial that there was “a
substantial connection between the property and the offense.” 18 U.S.C. § 983(c)(3).
The Government may rely on circumstantial evidence, hearsay, and evidence gathered
after the filing of the complaint; the court evaluates the evidence “with a common
sense view to the realities of normal life.” United States v. $291,828, 536 F.3d 1234,
1237 (11th Cir. 2008) (internal quotation marks omitted).
The complaint alleges facts sufficient to support a reasonable belief that the res
was substantially connected to the sale of illegal drugs. Upon being stopped by law
enforcement, Mr. Pettaway admitted to smoking marijuana less than two hours earlier,
the smell of marijuana emanated from the vehicle, and the trained canine called to the
scene alerted to the presence of drugs on the cash. See United States v. $84,615, 379
F.3d 496, 501–02 (8th Cir. 2004) (affirming district court’s order of forfeiture based
on possession of a large amount of cash, a small “user amount” of marijuana, and a
trained dog’s alert to drugs on the cash). Additionally, both men had aliases, and the
vehicle was a rental car. See United States v. Jones, No. 2:10-cr-13-MEF, 2010 WL
3362075, at *4 (M.D. Ala. June 11, 2010) (considering use of rental car as one factor
supporting reasonable suspicion that motorists were transporting drugs).
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Though there is nothing criminal about carrying large sums of money, even in
unconventional ways, the characteristics of the res and its packaging offer the best
support for the reasonable belief that a substantial connection existed between the res
and illegal activity. First, Claimant carried approximately twice the amount of cash
he first told officers he was carrying; his bag contained almost $20,000 rather than the
$8,000 to $10,000 he first indicated. Second, the money was divided into stacks,
secured with rubber bands, and stashed inside a microwave popcorn box carried in his
backpack. “A common sense reality of everyday life is that legitimate businesses do
not transport large quantities of cash rubber-banded into bundles and stuffed into
packages in a backpack.” United States v. $242,484, 389 F.3d 1149, 1161 (11th Cir.
2004). The facts sufficiently and plausibly support a reasonable belief that the res was
furnished or intended to be furnished in exchange for illegal drugs, or that it was
otherwise traceable to the illegal drug trade.
V. CONCLUSION
Accordingly, it is ORDERED that Claimant’s motions to dismiss (Docs. # 9,
13, & 19) are DENIED. Plaintiff’s motion to strike (Doc. # 40) is DENIED as moot.
DONE this 19th day of November, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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