USA v. $16,626.97 Held in Bank of the West Account #41502683 et al

Filing 155

ORDER DENYING 104 Claimant Myisha Evans' Motion to Set Aside Forfeiture. SO ORDERED, by Magistrate Judge S. Kato Crews on 1/23/2019.(skclc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00751-RM-SKC
UNITED STATES OF AMERICA,
Plaintiff,
v.

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$16,626.97 HELD IN BANK OF THE WEST ACCOUNT #41502683;
$8,192.22 HELD IN FIRST BANK ACCOUNT #2026030437;
$50,744.84 HELD IN FIRST BANK ACCOUNT #2021245699;
$815.10 HELD IN FIRST BANK ACCOUNT #2021248833;
$31,861.72 HELD IN FIRST BANK ACCOUNT #2021250811;
$9,053.01 HELD IN WELLS FARGO BANK ACCOUNT #7269983420;
$29,985.14 HELD IN WELLS FARGO BANK ACCOUNT #5378536204;
$9,165.07 HELD IN WELLS FARGO BANK ACCOUNT #8112218105;
$3,329.26 HELD IN WELLS FARGO BANK ACCOUNT #3427918416;
$77,373.36 HELD IN KIRKPATRICK BANK ACCOUNT #2015009936;
CASH VALUE OF STATE FARM INSURANCE POLICY #LF-3406-7842;
$6,491.47 HELD IN WELLS FARGO BANK ACCOUNT #5562114016;
$2,329.90 HELD IN JP MORGAN CHASE ACCOUNT #209158661;
$2,825.48 HELD IN JP MORGAN CHASE ACCOUNT #556396807;
$3,975.19 HELD IN JP MORGAN CHASE ACCOUNT #806530163;
$40,427.69 HELD IN JP MORGAN CHASE ACCOUNT #630110356;
$114,029.82 HELD IN JP MORGAN CHASE ACCOUNT #630090699;
$5,500.00 HELD IN CHARLES SCHWAB ACCOUNT #72221164;
$15,882.25 HELD IN CHARLES SCHWAB ACCOUNT #39014713;
27115 COUNTY ROAD 13, ELIZABETH, COLORADO;
4567 MIRA DEL SOL COURT, CASTLE ROCK, COLORADO;
25892 EAST 5TH PLACE, AURORA, COLORADO;
1152 SOUTH ZENO WAY, UNIT E, AURORA, COLORADO;
2675 SOUTH DANUBE WAY, UNIT 205, AURORA, COLORADO;
21962 EAST CRESTLINE PLACE, AURORA, COLORADO;
2013 PORSCHE CAYENNE, VIN WP1AF2A22DLA22972;
2009 ACURA MDX, VIN 2HNYD28239H515635;
80 ASSORTED GOLD AND SILVER COINS;
2014 FORD F-150 CREW CAB, VIN 1FTFW1EF8EKF55558;
2012 DODGE CHALLENGER, VIN 2C3CDYBT4CH101201;
$15,680.00 IN UNITED STATES CURRENCY; AND
2013 DODGE CHARGER, VIN 2C3CDXGJ9DH514346,
Defendants.

ORDER DENYING CLAIMANT MYISHA EVANS’ MOTION TO SET ASIDE
FORFEITURE [ECF. #104]
Magistrate Judge S. Kato Crews
This order addresses Claimant Myisha Evans’ (“Evans”) Motion for Order to Set
Aside Administrative Forfeiture (the “Motion”) [ECF. #104]. The Court has reviewed the
Motion, Plaintiff United States of America’s (“United States”) response [ECF. #115],
Evans’ reply [ECF. #123] and the entire case file and applicable law, and has
determined that oral argument would not materially assist to resolve the Motion. For the
following reasons, the Motion is DENIED.
PROCEDURAL HISTORY AND BACKGROUND
The United States filed its Amended Complaint for Forfeiture In Rem against
thirty-two properties (“Defendant Properties”) under 21 U.S.C. § 881. [ECF. #41
(Amended Complaint); ECF. #46 (Order for Warrant for Arrest of Property In Rem).]
Evans is a Claimant in this matter asserting a claim over eight of the Defendant
Properties. [ECF. #30 p.2; ECF. #41 p.8; ECF. #112 ¶¶ 65.]
In an administrative forfeiture proceeding, separate from the matter currently
before the Court, $81,150.00 was forfeited by the Drug Enforcement Agency (“DEA”)
(the “DEA Forfeiture”). [ECF. #104 ¶¶2, 5.] The $81,150.00 was seized during the
execution of a state search warrant by the DEA. [ECF. #115 ¶¶1-2.] Evans claims to
have an interest in the $81,150.00, and now asks this Court to set aside the DEA
Forfeiture pursuant to § 983(e)(1) of the Civil Asset Forfeiture Reform Act (the “Act”).
[ECF. #104.]; See 18 U.S.C. §983(e) et. seq. The $81,150.00 is not one of the
Defendant Properties before the Court in this action.
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DISCUSSION
The Court’s in rem jurisdiction does not extend beyond the Defendant Properties.
“A civil forfeiture proceeding under § 881 is an action in rem.” Republic Nat. Bank of
Miami v. United States, 506 U.S. 80, 84 (1992) (citations omitted). In an in rem
proceeding, “the court’s jurisdiction does not extend beyond [the seized property].” See
United States v. Sum of $70,990,605, 991 F. Supp. 2d 144, 149 (D.D.C. 2013); 4A
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1070 (4th ed.
2018) (“[W]hen jurisdiction is based on property the resulting judgment can affect only
the property that has been brought before the court.”). Therefore, the Court’s authority
in this matter is limited to the Defendant Properties. [See ECF. #14; ECF. #47.]
Evans’ requests an order form this Court setting aside the DEA Forfeiture for
failure to provide proper notice in that administrative action. [See ECF. #104.] Section
983(e)(1) of the Act provides a remedy to “[a]ny person entitled to written notice in any
nonjudicial civil forfeiture . . . who does not receive such notice” by allowing them to “file
a motion to set aside a declaration of forfeiture with respect to that person’s interest in
the property.” 18 U.S.C. § 983(e)(1) (emphasis added). Evans suggests that this
language allows her to file a motion to set aside forfeiture in any civil forfeiture action.
[ECF. #123 pp. 3-4.] However, the Court finds that the only reasonable interpretation of
§ 983 limits Evans’ ability to file a motion to set aside forfeiture of any one or more of
$81,150.00 from the Defendant Properties. Here, Evans seeks a determination of her
interest in the DEA Forfeiture. [See generally ECF. #104.] That property is not before
the Court in this action, and the Court has not exercised in rem jurisdiction over those

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funds. [See ECF. #14; ECF. #47.] Accordingly, the Court lacks jurisdiction to adjudicate
the Motion. 1 The Motion is denied.
CONCLUSION
For the reasons stated above, IT IS ORDERED that Evans’ Motion for Order to
Set Aside Administrative Forfeiture [ECF. #104] is DENIED with prejudice. 2

DATE: January 23, 2019.

BY THE COURT:

_____________________________
S. Kato Crews
United States Magistrate Judge
District of Colorado

1

The Court further questions whether it has the requisite in personam jurisdiction over
the DEA to determine the merits of the Motion. See United States v. Sum of
$70,990,605, 991 F. Supp. 2d 144, 149 (D.D.C. 2013) (“[T]he court’s jurisdiction does
not extend beyond [the seized property].”) This statutory remedy requires that the Court
have authority to order the DEA to set aside the DEA Forfeiture. See, e.g., Cf. Miller v.
Drug Enforcement Administration, No. 10-1314, 2012 WL 4605225 (W.D. Tenn. 2012)
(concerning a §983(e) action where the Court exercised in personam jurisdiction over
the plaintiff and the DEA).
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It would appear, at least in this instance, that the more appropriate procedure to set
aside the DEA Forfeiture is for Evans to file her motion as a separate action. Cf. United
States v. Barnhardt, 555 F. Supp. 2d 184 (D.D.C. 2008) (transferring §983(e) motion
challenging a DEA forfeiture that was filed in a criminal matter to a new and separate
civil action by claimant against the United States).
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