USA v. 5016 N 6th Street, Blytheville, Arkansas et al

Filing 32

OPINION AND ORDER granting 20 21 Motions to Dismiss. The government's 3 verified amended complaint in rem is dismissed without prejudice as to the real property and residence located at 5012 N. 6th Street, Blytheville, Arkansas; the real property and residence located at 1105 Golf Links, Blytheville, Arkansas; the real property and structures located at 925 E. Main, Blytheville, Arkansas; and the 2011 Nissan GT-R, VIN #JN1AR5EF8BM240254. Signed by Judge J. Leon Holmes on 11/3/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
UNITED STATES OF AMERICA
v.

PLAINTIFF
NO. 4:13CV00498 JLH

5012 NORTH 6TH STREET,
BLYTHEVILLE, ARKANSAS, real property
and residence; 1105 GOLF LINKS,
BLYTHEVILLE, ARKANSAS, real property
and residence; 925 E. MAIN, BLYTHEVILLE,
ARKANSAS, real property and structures;
2011 NISSAN GT-R VIN #JN1AR5EF8BM240254;
and 2004 FORD F-150 VIN #1FTRW12W34KA93555
ROBERT D. ALLEN; and DERRICK ALLEN

DEFENDANTS
CLAIMANTS

OPINION AND ORDER
This is a civil forfeiture action brought by the United States under 18 U.S.C. § 981(a)(1)(A)
and 21 U.S.C. § 881(a)(6) against three parcels of real estate in the city of Blytheville, Arkansas,
located at 5012 North 6th Street, 1105 Golf Links, and 925 East Main, and two vehicles, a 2011
Nissan GT-R and a 2004 Ford F-150. Robert Allen has filed affidavits of claims to the 2011 Nissan
GT-R and the three parcels of real property, and he has moved to dismiss the forfeiture complaint.
In response, the government argues that the motion to dismiss is premature because Allen has not
fully responded to its discovery requests seeking information to verify his standing to contest the
forfeiture and that, in any event, the complaint is sufficient. In the alternative, the government has
requested an opportunity to amend, should the Court determine that Allen has standing and that the
complaint is insufficient. For the reasons explained below, Allen’s motion to dismiss is granted.

I.
On August 26, 2013, the United States filed a civil forfeiture complaint against the three
parcels of real property. On August 28, 2013, the United States amended the complaint to add the
two vehicles. Document #3. The amended complaint contains the following allegations. Cedric
Jackson and Allen are involved in the distribution of controlled substances, and Jackson launders
drug proceeds through Allen and others.1 Jackson provides drug proceeds in cash to Allen, who uses
the cash to purchase vehicles and real estate, which are used by Jackson and Allen. Agents of
unidentified federal and state law enforcement agencies have interviewed persons who have
implicated Jackson and Allen as members of a drug-trafficking conspiracy. These persons have
purchased drugs from Jackson, witnessed Jackson and Allen selling drugs, and observed cash
transfers from Jackson to Allen. State officers have witnessed Jackson and Allen meeting with
persons whom the officers suspect to be involved in drug activity. State officers have made
controlled purchases of narcotics from persons who are suspected of being members of Jackson’s
drug-trafficking organization. State authorities who executed a search warrant against a residence
rented by Jackson located ammunition and five cellular telephones.

Officers located four

unidentified vehicles at Jackson’s residence, two of which were titled in Allen’s name. A person
or persons saw Jackson driving unidentified vehicles titled in Allen’s name, and a person or persons

1

Allen has not been indicted. The records in the present case do not state whether Jackson
has been indicted. A person named Cedric Jermaine Jackson was indicted in this district on
March 6, 2013, on a charge of felon in possession of a firearm. That Cedric Jackson pled guilty and
was sentenced to three years of probation. United States v. Cedric Jermaine Jackson, E.D. Ark. No.
4:13CR00073. Court records indicate that the Cedric Jackson who was the defendant in that case
resides in Blytheville.
2

told authorities that Jackson is the true owner of those vehicles.2 From 2008 to 2012, Allen spent
several hundreds of thousands of dollars more on the payments of various real estate and personal
loans and deposits into savings and checking accounts than he reported as gross income. Id. at 2-3
¶¶ 6-15.
Regarding the particular properties to be forfeited here, the complaint alleges, first, that Allen
purchased 5012 North 6th Street in June 2012, that “[a] substantial amount of the mortgage
payments have been made in the form of cash,” and that “[t]his cash represents proceeds of drug
trafficking.” Id. at 3 ¶¶ 16-18.
Second, the complaint alleges that Allen purchased 1105 Golf Links in April 2009, that “[a]ll
of the mortgage payments for this property were made in the form of cash,” that “[t]his cash
represents proceeds of drug trafficking, that “[a]lthough titled in Allen’s name, Jackson has held out
to various individuals that he is the owner of the residence,” that it “was the location of several large
cash payments from Jackson to Allen,” and that “on several occasions, witnesses saw at this location
large amounts of cash believed to be drug proceeds.” Id. at 4 ¶¶ 20-24.
Third, the complaint alleges that Allen purchased 925 East Main in March 2005, that “[a]
substantial amount of the payments of this property were made in the form of cash,” that “this cash
represents proceeds of drug trafficking,” that “[t]his property was used to prepare drugs for
distribution, [to] conceal at least one payment from Jackson to Allen, and [to] provide an air of
legitimacy to the drug related funds Allen spent on various real and personal property.” Id. at 4 ¶¶
26-29.

2

Other than Jackson and Allen, no one is named or otherwise identified in the amended
complaint.
3

Finally, the complaint alleges that Allen received a loan for the purchase of the 2011 Nissan
GT-R in August 2010, that “Allen paid off the loan in approximately one month, and the loan
payments were in the form of cash and transfers from other accounts,” that “[t]he account transfers
and cash represent proceeds of drug trafficking and money laundering.” Id. at 5 ¶¶ 31-33.
The complaint further alleges that each of these properties is subject to forfeiture as proceeds
of drug trafficking, as items used to facilitate drug trafficking, or as property that was involved in
money laundering. Id. at 3-5 ¶¶ 19, 25, 30, 34.
On September 27, 2013, Robert Allen filed affidavits of claims to the 2011 Nissan GT-R and
the three parcels of real property. See Documents #4, #5, #6, and #7.3 In each affidavit, Allen
asserted ownership of the asset and identified the date on which he purchased it.
On May 13, 2014, the government served Allen’s counsel with a set of 13 special
interrogatories. Allen’s original counsel withdrew in July 2014, and Allen obtained new counsel,
who submitted responses to the interrogatories on August 15, 2014. Allen declined to answer
portions of the interrogatories requesting tax information, asserting his rights under the Fifth
Amendment. On September 18, 2014, the United States sent a letter to Allen, objecting that his
answers to interrogatories 3, 5, 6, and 7 were deficient. The United States requested that Allen
supplement his responses to those interrogatories by October 10, 2014. On October 10, 2014, Allen
supplemented his responses to interrogatories 3 and 7, but objected to the United States’s request
that he supplement his responses to interrogatories 5 and 6, again asserting his rights under the Fifth
Amendment. Allen’s October 10 letter describes the responses he previously provided to the
United States. It states, in pertinent part:
3

Robert Allen has not filed a claim to the 2004 Ford F-150. A person named Derrick Allen
has filed a claim to that vehicle. Document #8.
4

To support standing for the limited scope of special interrogatories, Claimant
responded to Special Interrogatory Nos. 1 and 2 with the following:
a) Exhibit A, No. 1. 925 E. Main St: 1) warranty deed evidencing a legal
transfer of ownership from First National Bank of Blytheville to Claimant; 2) an
Entergy bill and Columbia Insurance Group Policy Declarations page evidencing
Claimant’s dominion and control over defendant property; and 3) Mississippi County
Real Property record evidencing Claimant’s ownership and a history of title transfers
dating back to 1996[.]

***
c) Exhibit A. No. 3. 1105 Golf Links: 1) warranty deed evidencing a legal
transfer of ownership from Carla J. Nelson to Claimant; 2) a SourceGas Arkansas
Inc, bill, an Entergy bill, and a Shelter Insurance Companies Evidence of Insurance
evidencing Claimant’s dominion and control over defendant property; and 3)
Mississippi County real Property records evidencing Claimant’s ownership and a
history [of] title transfers dating back to 1979.
d) Exhibit A. No. 4. 5012 N. 6th St: 1) warranty deed evidencing a legal
transfer of ownership from Matthew R. Mosley and Whitney R. Mosley to Claimant;
2) a Scrivenor’s [sic] Error Affidavit correcting part of the legal description; 3) an
Entergy bill evidencing utilities in Claimant’s name, American Modern Select
Insurance Company Dwelling Policy Declarations, a SourceGas Arkansas Inc., bill
evidencing Claimant’s dominion and control over defendant property; and 4)
Mississippi County Real Property records evidencing Claimant’s ownership and a
history [of] title transfers dating back to 1992.
e) Exhibit B. 2011 Nissan GTR: 1) Shelter Insurance Companies Declarations
page evidencing Claimant’s dominion and control over defendant property; and 2)
a Certificate of Title proving ownership under Arkansas law; and 3) a Purchase
Agreement evidencing Claimant’s legal purchase of Defendant Property.
Document #29-1 at 2.4 Allen’s letter then supplemented his responses by providing information
about sums of money that he received between 2005 and 2013 from the sale of both real and
personal property, insurance settlements, loans, and gifts from friends and family members. It
stated:

4

The parties have not supplied these documents to the Court. However, the United States
has neither disputed that Allen supplied these documents nor challenged their authenticity.
5

a)

On or about August 2008, Claimant received $101,555.00 which
represents proceeds from the sale of real property located at 908
Illinois St., Blytheville, Arkansas.

b)

On or about September 2009, Claimant received approximately
$94,516.50 which represents proceeds from an insurance settlement.

c)

From February 16, 2009 to May 3, 2010, Claimant received
$20,396.65 which represents proceeds from an insurance settlement.

d)

From 2005-2013, Claimant received loans and gifts from his father,
Robert A. Allen and Denise Allen. These loans and gifts likely
exceed $120,000 and include a $25,000 contribution for the down
payment on the East Main Property.

e)

On or about September 2010, Claimant received a loan from his
father, Robert A. Allen, in the amount of $161,522.21. The amount
represents a portion of proceeds from the sale of a house owned by
Robert A. Allen, Claimant’s father.

f)

On or about August 2011, Claimant received approximately $29,000
from the sale of a boat.

g)

Rosemary Allen, Claimant’s mother, provided periodic financial gifts
to Claimant.

h)

Athena Moore and Amber Copeland contributed to mortgage
payments.

Id. at 3.
II.
Before addressing Allen’s motion to dismiss, the Court must address the threshold issue of
Allen’s standing to challenge the amended complaint at this stage of the litigation.
A.

Allen’s Standing at the Pleading Stage
In its response brief to Allen’s motion to dismiss, the United States challenges Allen’s

standing to intervene in this action, arguing that Allen is a mere nominal owner of the assets, that
Allen has failed to fully respond to the United States’s special interrogatories, and that Allen has not
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adequately explained whether he used legitimate funds to pay for the assets. “A forfeiture claimant
must satisfy both constitutional and statutory standing requirements to file a verified claim
properly.” United States v. Eleven Million Seventy-One Thousand One Hundred & Eighty-Eight
Dollar & Sixty Four Cents ($11,071,188.64) in U.S. Currency, No. 4:12-CV-1559 CEJ, 2014 WL
301014, at *1 (E.D. Mo. Jan. 28, 2014) (quoting United States v. ADT Sec. Svcs, Inc., 522 F. App’x
480, 489 (11th Cir. 2013)).
In a forfeiture case, a claimant's Article III standing turns on whether the claimant
has a sufficient ownership interest in the property to create a case or controversy.
This threshold burden is not rigorous: “To have standing, a claimant need not prove
the underlying merits of the claim. The claimant need only show a colorable interest
in the property, redressable, at least in part, by a return of the property.” United
States v. 7725 Unity Ave. N., 294 F.3d 954, 957 (8th Cir. 2002) (citation omitted).
We have held in numerous cases that a colorable ownership interest “may be
evidenced in a number of ways including showings of actual possession, control, title
and financial stake.” United States v. One 1945 Douglas C-54 (DC-4) Aircraft, 647
F.2d 864, 866 (8th Cir. 1981); see 7725 Unity Ave., 294 F.3d at 956; 1998 BMW, 235
F.3d at 399; United States v. One 1990 Chevrolet Corvette, 37 F.3d 421, 422 (8th
Cir. 1994).
United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1013 (8th Cir. 2003). “To establish
statutory standing under Rule G(5) of the Supplemental Rules, a ‘person who asserts an interest in
the defendant property’ must ‘state the claimant’s interest in the property.’” Eleven Million SeventyOne Thousand One Hundred & Eighty-Eight Dollar & Sixty Four Cents ($11,071,188.64) in U.S.
Currency, No. 4:12-CV-1559 CEJ, 2014 WL 301014, at *1 (E.D. Mo. Jan. 28, 2014) (quoting Fed.
R. Civ. P. Supp. R. G(5)(a)(i)(B)). “At the pleading stage, a claimant satisfies this burden by
alleging a sufficient interest in the seized property.” Id. (quoting United States v. $148,840.00 in
U.S. Currency, 521 F.3d 1268, 1273 (10th Cir. 2008)) (alteration omitted). “‘Courts have held that
an allegation of ownership and some evidence of ownership are together sufficient to establish

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standing to contest a civil forfeiture.’” Id. (quoting United States v. United States Currency,
$81,000, 189 F.3d 28, 35 (1st Cir. 1999)) (alteration omitted).
At this early stage of the litigation, Allen’s affidavit of ownership in the assets, the
documents showing that he has title to them, and the financial information that he has provided to
the government are sufficient to establish both Article III and statutory standing to contest the civil
forfeiture action.
The United States’s argument that Allen has not established standing relies on 18 U.S.C.
§ 983(d)(6)(B)(iii), which provides in part that “a nominee who exercises no dominion or control
over the property” is not an “owner.” The government’s argument relies also on cases such as
United States v. One 1990 Chevrolet Corvette, VIN No. 1G1YY3384L5104361, with All
Appurtenances & Attachments thereon, 37 F.3d 421 (8th Cir. 1994), which states, in pertinent part,
that “bare legal title by one who does not exercise dominion and control over the property is
insufficient to establish ownership. A nominal owner who lacks possession of the defendant
property and did not exercise dominion and control over it does not have an interest sufficient to
have standing to challenge forfeiture.” Id. at 422 (quotations and citations omitted). But the Eighth
Circuit has explained:
As relevant here, the statute defines the term “owner” to include “a person with an
ownership interest in the specific property sought to be forfeited,” and to exclude “a
nominee who exercises no dominion or control over the property.” 18 U.S.C.
§ 983(d)(6). Although many cases refer to this issue as part of the “standing”
inquiry, it is in fact an element of the innocent owner's claim on the merits. When
claimants have Article III standing but fail to prove an ownership interest that meets
these statutory criteria, the “statement that Claimants lacked ‘standing’ is simply
another way of stating that Claimants had failed to establish on the merits a property
interest entitling them to relief.” United States v. Hooper, 229 F.3d 818, 820 n.4 (9th
Cir. 2000); see United States v. $9.041,598,68, 163 F.3d 238, 245 (5th Cir. 1998);
United States v. 2001 Honda Accord EX, 245 F. Supp. 2d 602, 607 n.4 (M.D. Pa.
2003).
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One Lincoln Navigator 1998, 328 F.3d at 1014. The Ninth Circuit has explained more fully how
the claimant’s burden differs at each stage of the proceeding:
At the motion to dismiss stage, a claimant’s unequivocal assertion of an ownership
interest in the property is sufficient by itself to establish standing. United States v.
475 Martin Lane, 545 F.3d 1134, 1140 (9th Cir. 2008); $191,910.00, 16 F.3d at
1058. If the claimant instead asserts a possessory interest at the motion to dismiss
stage, the claimant must offer some “factual allegations regarding how the claimant
came to possess the property, the nature of the claimant’s relationship to the
property, and/or the story behind the claimant’s control of the property.”
$515,060.42, 152 F.3d at 498. “Mere unexplained possession will not be sufficient.”
$191,910.00, 16 F.3d at 1058 (emphasis in original). At trial, “[t]he claimant has the
burden of establishing, by a preponderance of the evidence, that he has an interest
in the property.” United States v. Section 18, 976 F.2d 515, 520 (9th Cir. 1992).
United States v. $133,420.00 in U.S. Currency, 672 F. 3d 629, 638 (9th Cir. 2012) (emphasis
omitted). At this stage of the proceeding, Allen does not have to prove on the merits that he has a
property interest that entitles him to relief.
The United States’s argument further relies on cases such as United States v. $104,250.00
in U.S. Currency, 947 F. Supp. 2d 560, 565 (D. Md. 2013) (stating that under “Rules G(6)(c) and
G(8)(c)(ii)(A) . . . the claimant must respond to the special interrogatories, and [the] court must
determine whether the claimant has standing to contest the forfeiture, before [the] court addresses
any other issue that the claimant may raise.”), and United States v. Approximately $658,830.00 in
U.S. Currency, No. 2:11-CV-00967 MCE, 2011 WL 5241311, at *3 (E.D. Cal. Oct. 31, 2011)
(denying the claimant’s motion to dismiss as prematurely filed because the claimant had not
responded to the government’s special interrogatories).
Under Rule G(6)(a), “[t]he government may serve special interrogatories limited to the
claimant’s identity and relationship to the defendant property without the court's leave at any time
after the claim is filed and before discovery is closed.” “The purpose of th[is] rule is to permit the

9

government . . . to gather information that bears on the claimant's standing.” United States v.
$154,853.00 in U.S. Currency, 744 F.3d 559, 563 (8th Cir. 2014) (quotation and citation omitted).
There, $154,853.00 had been seized during a traffic stop. Id. at 561. After the district court struck
the claimant’s initial claim for failure to sufficiently state an interest in the currency under
Supplemental Rule G(5), the claimant filed an amended claim seeking return of the money. The
amended claim stated that the claimant had earned $4,500.00 of the seized currency through his
employment and that the remaining $150,353.00 had been given to him by another, unidentified
person with the claimant acting as a bailee. Id. at 562. The claimant objected under the Fourth and
Fifth Amendments to providing any further information. The government submitted special
interrogatories to the claimant under Supplemental Rule G(6) requesting information about the
claimant’s relation to the currency. Id. at 561-62. The claimant responded by claiming the Fourth
and Fifth Amendment exclusionary rules as a privilege against answering each interrogatory. The
district court struck the claimant’s amended claim, finding that it did not comply with Supplemental
Rules G(5)(a)(iii) and G(6), and the district court issued an order of forfeiture for the entire
$154,853.00. Id. at 562. On appeal, the claimant argued, among other things, that the court abused
its discretion in striking his amended claim. The Eighth Circuit affirmed the district court’s ruling
as to the $150,353.00 because the claimant had failed to identify the bailor, as required under
Supplemental Rule G(5)(a)(iii) and 18 U.S.C. § 983(d)(6)(B)(ii). Id. at 563. As to the $4,500.00
the claimant contended that he earned through his employment, however, the Eighth Circuit
reversed, stating:
Such a claim appears sufficient to state a colorable “ownership interest” as required
by 18 U.S.C. § 983(d)(6)(A), as [the claimant] would certainly have an ownership
interest in earned income. If [the claimant] had already established standing as to the

10

$4,500, as the government concedes, then special interrogatories were unnecessary
to determine his standing as to that currency.
Id. at 564.
Here, the government has not conceded that Allen has standing. As noted above, Allen has,
however, provided sufficient responses to the government’s special interrogatories to show that he
has standing to contest the forfeiture. Although Allen asserted his Fifth Amendment rights to some
of the interrogatories, he has nonetheless provided the United States with documents showing that
he has title to the assets, along with pertinent financial information. Allen has established standing
to contest the government’s forfeiture action. Cf. Torres v. $36,256.80 in U.S. Currency, 25 F.3d
1154, 1158 (2nd Cir. 1994) (“[A]llegation of ownership and some evidence of ownership are
together sufficient to establish standing to contest a civil forfeiture.”).
B.

Allen’s Motion to Dismiss
“A claimant who establishes standing to contest forfeiture may move to dismiss the action

under Rule 12(b).” Fed. R. Civ. P. Supp. R. G(8)(b)(i). Under the rules governing forfeiture actions
in rem, the pleading requirements for a complaint are tied to the government’s burden of proof at
trial. See Fed. R. Civ. P. Supp. R. G(2)(f),5 which provides that the complaint must “state
sufficiently detailed facts to support a reasonable belief that the government will be able to meet its

5

Allen also cites Supplemental Rule E(2)(a), which provides that the complaint must “state
the circumstances from which the claim arises with such particularity that the defendant or claimant
will be able, without moving for a more definite statement, to commence an investigation of the facts
and to frame a responsive pleading.” That rule no longer applies to civil forfeiture proceedings. See
United States v. $40,000 in U.S. Currency, No. 1:09CV383, 2010 WL 2330353, at *3-4 (W.D. N.C.
May 11, 2010) (explaining that on December 1, 2006, Rule G of the Supplemental Rules replaced
the in rem forfeiture provisions of Rule E(2)). Some cases apply Rule E(2) as well as Rule G(2).
See, e.g., United States v. One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1, 13-14 (D.D.C. 2013).
11

burden of proof at trial.”6 This rule thus imposes a heightened pleading for complaints in civil
forfeiture actions. “The additional burden of pleading requiring ‘added specifics is thought
appropriate because of the drastic nature of [civil forfeiture] remedies.’” United States v. All Assets
Held at Bank Julius Boer & Co., Ltd., 571 F. Supp. 2d 1, 16 (D.C. Cir. 2008) (quoting Charles Alan
Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 3242 (2d ed.
1997)). This heightened pleading requirement “is not merely a procedural technicality, but a way
of ensuring that the government does not seize and hold, for a substantial period of time, property
to which, in reality, it has no legitimate claim.”7 United States v. Pole No. 3172, Hopkinton, 852
F.2d 636, 639 (1st Cir. 1988).
The amended complaint sets forth two theories of forfeiture. It states that the parcels of real
estate and vehicles are forfeitable under 21 U.S.C. § 881(a)(6) as proceeds of drug trafficking and
that the parcels of real estate and the Nissan GT-R are forfeitable under 18 U.S.C. § 981(a)(1)(A)
as property involved in a money laundering transaction. Document #3 at 2 ¶5.
Allen argues that the amended complaint does not allege sufficiently detailed facts to support
a reasonable inference that the properties or vehicles were purchased with proceeds of a drug
transaction or conspiracy or that they were involved in a money laundering transaction. Allen is
correct. The amended complaint specifies no date or time of any purported or intended drug
exchange, no location, no dollar amount, no specific type or quantity of controlled substance, no

6

At trial the government must prove by a preponderance of evidence that the property is
subject to forfeiture, 18 U.S.C. § 1983(c)(1), and it may use evidence gathered after the filing of the
complaint to meet this burden. 18 U.S.C. § 1983(c)(2).
7

Real property ordinarily cannot be seized before an order of forfeiture is entered, but title
to it may be encumbered by a lis pendens. 18 U.S.C. § 981(b)(1) and § 985(b)(1)(A) and (2).
Nevertheless, the pleading standard in a civil forfeiture proceeding is the same for real property as
for other property.
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persons among whom such a transaction allegedly took place, no names of alleged witnesses, and
no identifying information of any kind for any monetary or financial transaction related to the
properties or vehicles. The amended complaint does not allege what type of drugs were distributed,
much less when and to whom. Nor does the amended complaint allege a time frame within which
illegal activity occurred. The only dates alleged are the years that Allen purchased the assets listed
in the complaint and the statement that Allen spent more than he reported as gross income from 2008
to 2012.
The amended complaint alleges, in conclusory terms, that Allen and Jackson were “involved
in the distribution of controlled substances,” that they engaged in “drug trafficking,” and that the
property involved represents “proceeds of drug trafficking,” but these conclusory allegations are
unsupported by any specific factual allegations. Likewise, the amended complaint’s alleges that
Jackson “launders” money, that there was an effort to “conceal” certain payments, and that
exchanges at one property were an effort to “provide an air of legitimacy” to certain payments, but
these allegations are conclusory and without factual substantiation. The amended complaint alleges
no facts demonstrating a nexus between the properties or vehicles and the vaguely-alleged drug
trafficking or money laundering. The amended complaint does not identify a particular underlying
drug trafficking or money laundering statute or provide even a blanket recitation of necessary
elements.
Apart from the conclusory allegations of drug trafficking, the amended complaint’s primary
factual basis for forfeiture is that Allen has made large cash payments for the assets during a time
when he did not report income commensurate with these large cash expenditures. The amended
complaint alleges that unnamed persons witnessed “large amounts of cash” at 1105 Golf Links and

13

that “several large cash payments” from Jackson to Allen took place there. It alleges that 925 East
Main was used by unnamed persons at some unspecified time to prepare drugs for distribution.
Otherwise, the amended complaint alleges that authorities found “ammunition” and five cell phones
at a residence that Jackson rented. An unnamed person or persons observed two unidentified
vehicles that were titled to Allen on Jackson’s property and witnessed Jackson driving unidentified
vehicles that were titled to Allen. The amended complaint does not allege, however, that Jackson
ever drove either of the vehicles that the government seeks to forfeit.
The amended complaint does not allege sufficiently detailed facts to support a reasonable
belief that the government could prove at trial that the properties and vehicles are forfeitable. Fed.
R. Civ. P. Supp. R. G(2)(f); see Mask of Ka-Nefer-Nefer, No. 4:11CV504 HEA, 2012 WL 1094658,
at *3 (E.D. Mo. Mar. 31, 2012) (“The Government has completely failed to identify, in its verified
complaint, the established law that was violated when the Mask was purportedly brought illegally
into the United States or purportedly stolen from Egypt or some other undisclosed party, and it has
failed to provide any facts relating to the time period surrounding these supposed events.”); United
States v. One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d at 16 (“Absent some specific indication
that the [asset] is derived from or traceable to illicit activity, the complaint must be dismissed.”).
C.

Government’s Request for Leave to Amend
The United States has requested leave to amend the complaint to address any deficiencies.

Eastern District of Arkansas Local Rule 5.5(e) provides, in pertinent part, “A party who moves to
amend a pleading shall attach a copy of the amendment to the motion.” The United States has
neither filed a motion to amend nor submitted a proposed second amended complaint. “In Wolgin
v. Simon, . . . where plaintiff requested leave to amend if the court granted defendants' motion to

14

dismiss, [the Eighth Circuit] held “that to preserve the right to amend a complaint a party must
submit a proposed amendment along with its motion.” United States v. Mask of Ka-Nefer-Nefer,
752 F.3d 737, 742 (8th Cir. 2014) (emphasis in Mask of Ka-Nefer-Nefer) (citing Wolgin v. Simon,
722 F.2d 389, 395 (8th Cir. 1983)). The government may, if it chooses, seek leave to amend
pursuant to Local Rule 5.5(e), but unless the government complies with the local rule the Court will
not grant leave to amend.
CONCLUSION
Robert Allen’s motion to dismiss is GRANTED.

Documents #20 and #21.

The

government’s verified amended complaint in rem is dismissed without prejudice as to the real
property and residence located at 5012 N. 6th Street, Blytheville, Arkansas; the real property and
residence located at 1105 Golf Links, Blytheville, Arkansas; the real property and structures located
at 925 E. Main, Blytheville, Arkansas; and the 2011 Nissan GT-R, VIN #JN1AR5EF8BM240254.
IT IS SO ORDERED this 3rd day of November, 2014.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

15