UNITED STATES OF AMERICA v. CURRENCY et al

Filing 37

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Ordered by U.S. District Judge CLAY D LAND on 10/15/2014. (vac)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
United States of America,
Plaintiff,

*
*

vs.
*
54,440.00 in United States Funds,
First-Named Defendant
Property,

CASE NO. 4:11-CV-143 (CDL)
*
*

Derone Jackson,
Claimant.

*
ORDER

Based on four controlled purchases of cocaine by a confidential
informant, deputy sheriffs obtained search warrants for the homes of two
brothers and their mother. At the mother’s home, the deputies located a safe
that contained three twenty-dollar bills and a one-hundred-dollar bill that had
been used in the controlled purchases.

In addition to the traced $160 in

currency, the deputies found an additional $57,440.00 in cash in the safe.
Although no one has been indicted for the underlying criminal activity that
gave rise to the search of the safe, the United States wants the money, and it
has filed this civil forfeiture action to get it. One of the brothers, who was not
implicated in the alleged criminal activity, now claims the cash is his. After a

bench trial, the Court finds in favor of the United States based upon the
following findings of fact and conclusions of law.
FINDINGS OF FACT
1.
Former M u s c o g e e C o u n t y S h e r i f f ’ s O f f i c e ( “ Sheriff’s Office”)
Investigator Findley received numerous tips from various sources, including
confidential informants, that Terrence J a c k s on a / k / a “ B e a r ” and his
brother, Deryk Jackson a/k/a “Shorty,” were selling powder and crack
cocaine from their residences on Rice Street and Cornell Avenue. Investigator
Findley was also told that Deryk was frequently seen going back and forth
between his home (2550 Cornell Avenue) and his mother’s home next door
(2556 Cornell Avenue) during drug transactions.
2.
Based on this information, Investigator Findley arranged a series of
controlled purchases of narcotics from Terrence and Deryk using informants
over a period of two months.
3.
In the first transaction, Investigator Findley and his colleague,
Investigator

Batastini,

observed

the

informants exchange

$100.00

of

photocopied Sheriff’s Office funds for 1.1 grams of crack cocaine from Deryk

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at 2550 Cornell Avenue and 2556 Cornell Avenue.

The informants also

exchanged $50.00 of photocopied Sheriff’s Office funds for 0.6 grams of
powder cocaine from Terrence at 2517 Rice Street.
4.
In

the

second

transaction,

Investigator

Findley

observed

the

informants exchange $120.00 of photocopied Sheriff’s Office funds for 0.6
grams of crack cocaine and 0.6 grams of powder cocaine from Deryk and
Terrence at 2550 Cornell Avenue and 2556 Cornell Avenue.
5.
In the third transaction, Investigator Findley observed the informants
enter Terrence’s residence at 2517 Rice Street and return with 0.6 grams of
crack cocaine and 0.6 grams of powder cocaine. The informants exchanged
$100.00 of photocopied Sheriff’s Office funds for the narcotics.
6.
The final controlled purchase occurred on April 14, 2011 around 3:30
p.m. Investigators Findley and Batastini observed the informants exchange
$100.00 of photocopied Sheriff’s Office funds for 1.1 grams of crack cocaine
from Deryk at 2550 Cornell Avenue.

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7.
A criminal history record check revealed that both Terrence and Deryk
have prior arrests and are convicted felons.
8.
Based on the information gathered during the drug investigation and
surveillance, Investigator Findley obtained search warrants for 2517 Rice
Street, 2550 Cornell Avenue, and 2556 Cornell Avenue.

All residences are

located in Columbus, Muscogee County, Georgia.
9.
On April 15, 2011, at approximately 3:00 p.m., members of the Metro
Narcotics Task Force executed a search warrant at 2517 Rice Street, the
home of Terrence Jackson.

During the search, Investigator Batastini and

other agents found approximately 32.2 grams of cocaine, approximately 66.8
grams of marijuana, a scale, several guns, and ammunition.

Investigator

Batastini, who has experience quantifying the street value of narcotics in the
Columbus market, t e s t i f i e d that the narcotics seized at 2517 Rice Street
and on Terrence’s person had a value of approximately $4,100.00.
10.
Concurrent with the Rice Street search, Sheriff’s Office deputies and
investigators executed a search warrant at 2550 Cornell Avenue, the home of

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Deryk Jackson. Investigator Findley and others searched the residence and
Sheriff’s officers recovered approximately 12.3 grams of crack cocaine,
razor blades, 25.5 Xanax pills, a video surveillance system to monitor the
exterior of the residence, and a Beretta Blackhawk holster.
11.
Shortly thereafter, law enforcement officers executed a third search
warrant at 2556 Cornell Avenue, the home of Barbara L. Johnson. Ms. Johnson
is the mother of Terrence, Deryk, and Claimant Derone Jackson. Technician
Stinson conducted an open air search of the residence using a dog (“K-9”)
trained to detect the odor of certain narcotics including cocaine, crack cocaine,
methamphetamine, marijuana, and heroin. The only place in the residence
that the K-9 gave a positive alert for the presence of narcotics was on two safes
in the right rear bedroom closet.
12.
Investigator Findley arrived at Ms. Johnson’s residence as Technician
Stinson conducted the open air search. After t he K-9 alerted on the safes,
Investigator Findley asked Ms. Johnson for the combination to the safes to
avoid unnecessarily destroying the safes. Ms. Johnson was unable to provide
the combination and stated that the safes belonged to her son Deryk.
Investigator Findley asked Deryk

for the combination, which he did not

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provide. Agents then used a crow bar to open the safes, and discovered a
large amount of U.S. currency, assorted jewelry, and bags of wheat pennies
and buffalo nickels. Agents found ten guns and several boxes of ammunition
in the same residence with the large amount of U.S. currency.
13.
Terrence was arrested and charged with trafficking in cocaine,
possession of marijuana with intent to distribute, and four counts of possession
of a firearm by a convicted felon. Deryk was arrested and charged with two
counts of sale of cocaine and possession of cocaine with intent to distribute.
14.
The arrest warrants remain pending against Terrence and Deryk with
the Muscogee County Superior Court, and neither Terrence nor Deryk have
been indicted.
15.
The U.S. currency found in the safes was seized and counted. It totaled
$57,600.00.
16.
On April 19, 2011, Lt. Sikes and Investigator Findley of the Sheriff’s
Office sorted through the $57,600.00 seized from 2556 Cornell Avenue to
search for funds that had previously been photocopied by the Sheriff’s Office

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for use in the controlled transactions.

Investigator Findley found four

photocopied bills in the $57,600.00: a $100.00 bill that was used by informants
to purchase crack cocaine from Deryk on April 14, 2011 and three $20.00
bills that were used in a controlled purchase of crack cocaine from Deryk at
2550 Cornell Avenue and 2556 Cornell Avenue on March 2, 2011. The four
previously photocopied bills, totaling $160.00, were marked, bagged, sealed,
and placed in evidence. The Sheriff’s Office turned the remaining $57,440.00
over to the United States Marshals Service.
17.
On September 29, 2011, the United States filed a Verified Complaint for
Forfeiture

against

the

First-Named

Defendant

Property,

$57,440.00,

contending that it is subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6). (ECF
No. 1). The First-Named Defendant Property was seized pursuant to a Warrant
of Arrest In Rem by the United States Marshals Service. (ECF No. 2). The
Government published notice of this forfeiture, as required by Rule G(4) of the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions.
18.
On October 19, 2011, Derone Jackson (“Claimant”), through his counsel
of record, filed a timely Claim (ECF No. 6) asserting his interest in the

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First-Named Defendant Property, as well as an Answer (ECF No. 7) to the
Verified Complaint on October 28, 2011.
19.
A Declaration of Publication was filed on November 18, 2011, and no
other claim has been filed on the First-Named Defendant Property. (ECF No. 9).
20.
On December 6, 2011, the Government filed a Motion to Stay the
forfeiture proceedings based on Arrest Warrants issued by the Superior Court
of Muscogee County against Claimant’s brothers, Terrence and Deryk,
charging them with possession of cocaine with intent to distribute and the
sale of cocaine. (ECF No. 10). The Court granted the United States’ Motion to
Stay on December 15, 2011. (ECF No. 13). After some time, even though the
charges against Terrence and Deryk Jackson remained pending, the United
States filed a motion requesting that the Court lift the stay. (ECF No. 21). On
May 1, 2013, the Court lifted the stay. (ECF No. 22). A bench trial was held
on September 29, 2014.
21.
Claimant Derone Jackson, a painter and drywall installer, testified that
he accumulated the $54,440.00 over a period of ten years, from approximately
2002 through April 15, 2011, the date the U.S. currency was seized by law
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enforcement. He introduced evidence of his income over various years,
including numerous check stubs and 1099 tax returns from 2002 through 2007.
He testified that he saved the majority of the First-Named Defendant Property
from 2004 through 2007, when he worked as a subcontractor.

By 2006,

Claimant estimated that he had accumulated $20,000.00 of the First-Named
Defendant Property.
22.
Claimant explained that this money was his savings for retirement, and
that he did not deposit it with a bank because he did not trust banks or Wall
Street following the terrorist attacks of September 11, 2001. But he apparently
had no qualms about storing his life savings at his mother’s house in a safe
bought at Walmart that was small enough to be carried away by a single person.
23.
Claimant also testified that he was the only individual who had access
to the safe. But he had no believable explanation as to how the safe
contained the $100.00 bill used in a controlled purchase of narcotics from
Deryk on April 14, 2011, only 24 hours before the seizure on April 15, 2011.
He maintained that he occasionally loaned money to his brothers, and that the
traced money must have been currency they used to pay back their loans. But
this testimony cannot be reconciled with Claimant’s other testimony

9

that he last accessed the safe three to four days prior to the seizure. Claimant
also denied any knowledge of his brothers’ drug activity or the cache of
weapons stored at his mother’s home, despite allegedly having visited his
mother once per week, and purporting to be close with his brothers.
24.
The evidence introduced at trial showed that from 2002 through 2011,
Claimant was paid the gross sum of over $580,000.00, most of which was paid
to him as a subcontractor, and thus he netted much less after paying for his
products, supplies, and other expenses. The bulk of this income was from the
years preceding 2008 before the housing market crashed and Claimant’s
business dried up.

Of this $580,000.00, $408,000.00 was received prior to

December 31, 2005.
25.
Although Claimant testified that the First-Named Defendant Property
was accumulated from 2002 to 2011, and that he did not have difficulty
paying his bills during this time, he acknowledged on cross-examination that
he had filed for bankruptcy protection in the Middle District of Georgia
Bankruptcy Court in 2001, 2003, and 2005. On October 13, 2005, Claimant
verified i n h i s b a n k r u p t c y f i l i n g s that he had no cash on hand.

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26.
No witnesses were called to corroborate C laiman t’s

claim to

ownership of the currency.
CONCLUSIONS OF
LAW
The Government bears the initial burden of demonstrating by a
preponderance of the evidence that the First-Named Defendant Property is
subject to forfeiture.

18 U.S.C. § 983(c)(1).

Generally, when the

Government seeks forfeiture of property used to commit a criminal offense,
property used to facilitate the commission of a criminal offense, or property
involved in the commission of a criminal offense, the Government must
establish a substantial connection between the property and the offense. Id.
§983(c)(3).

For forfeitures arising from violations of the Controlled

Substances Act, the Government may demonstrate that cash is subject to
forfeiture by proving by a preponderance of the evidence that the cash was
furnished or intended to be furnished in exchange for a controlled
substance in violation of the Controlled Substances Act, that the cash is
traceable to such an exchange, or that the cash was used or intended to be
used to facilitate any violation of the Controlled Substances Act. 21 U.S.C.
§ 881(a)(6).

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The Court concludes that the Government proved by a preponderance
of the evidence that the First-Named Defendant Property was subject to
forfeiture because it was exchanged for controlled substances as prohibited by
the Controlled Substances Act. Id. Although the Government must prove that
there is a substantial connection between the defendant property and the
criminal activity, see 18 U.S.C. § 983(c)(3), the Government is not required to
show that the property was connected to a specific drug transaction.
United States v. $242,484, 389 F.3d 1149, 1160 (11th Cir. 2004) (en banc). In this
case, the Court finds this substantial connection based upon both direct and
circumstantial evidence evaluated in light of the totality of the circumstances
with “a common sense view to the realities of normal life.”

Id. (internal

quotation marks omitted). Based on the evidence presented at trial, the Court finds
that the cash found in the safe is subject to forfeiture. But this does not end the
inquiry.
If the Government meets its burden of proving that the property is subject to
forfeiture, an innocent owner’s interest in that property may not be forfeited if the
innocent owner establishes by a preponderance of the evidence that he is in fact an
“innocent owner” as defined by the forfeiture statute. 18 U.S.C. § 983(d)(1). To be an
“innocent owner,” the claimant must obviously have an “ownership interest in
the specific property sought to be forfeited.” Id. § 983(d)(6)(A)(emphasis

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added). If the claimant establishes an ownership interest in the property, then
he must prove that his ownership was innocent. See id. §983(d)(2) and (3).
In this case, Derone, as the claimant innocent owner, was unable to prove
ownership of the cash found in the safe. The facts that lead the Court to this
conclusion include the following: (i) investigation, surveillance, and the
execution of search warrants at 2517 Rice Street, 2550 Cornell Avenue, and
2556 Cornell Avenue, which led, collectively, to the discovery and seizure of
approximately 47 grams of powder and crack cocaine (with an approximate
street value of $4,700.00), 67 grams of marijuana (with an approximate street
value of $670.00), 25.5 Xanax pills, digital scales, a cache of firearms, 14 boxes
of ammunition, razor blades, cut, and a video surveillance system; (ii) the
large quantity of U.S. currency ($57,600.00) found inside the locked safe
located at 2556 Cornell Avenue; (iii) the location of the large amount of U.S.
currency in a separate but nearby residence from the residences being used for
drug trafficking; (iv) a positive alert by a narcotics K-9 on the safes located at
2556 Cornell Avenue containing the First-Na med Defendant Property; (v)
the evidence of multiple bankruptcy filings by Claimant, which is
inconsistent with the evidence of income Claimant tendered at trial; (vi) the
discovery of “buy money” comingled with currency located in the safe; (vii)
the absence of any other claimant to the currency, despite notice being

13

provided when the Complaint was filed nearly three years ago; and (viii) the
lack

of

corroborating

testimony

from

Claimant’s

family

members

concerning the purported financial calamity caused by the seizure of his life
savings. Unable to carry his burden of establishing himself as an “innocent
owner,” Derone’s claim to the property that is subject to forfeiture fails.

And

this ends the inquiry. The cash shall be forfeited to the United States.
OBITER DICTUM
While the absence of any underlying criminal indictment of Terrence
or Deryk does not prevent the civil forfeiture here, it does create some pause.
Even the most ardent law and order advocate would likely recognize the
legitimate civil liberty concerns that arise from the federal government’s taking
of personal property as the fruit of a crime when neither the federal
government nor any state has chosen to indict the alleged perpetrators for the
underlying criminal activity. But even the most passionate civil libertarian
must concede that the forfeiture statutes enacted by Congress permit such
aggressive pursuit of the fruit of theoretically indictable, yet not actually
indicted, crimes.

Perhaps more importantly, any judge should know that the

same Constitution that protects those civil liberties also constrains the Court
from rewriting those forfeiture laws or purposely misconstruing the evidence
to reach a particular result. Regardless of one’s personal view of the civil

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forfeiture laws and the breadth of their reach, the evidence in this case under
the current law requires today’s outcome.
CONCLUSION
The United States proved by a preponderance of the evidence that
the First-Named Defendant Property constitutes proceeds traceable to an
exchange for a controlled substance
Substances

Act.

forfeiture.

Thus,

the

in

violation

property

of
is

the

Controlled

subject

to

M o r e o v e r , t h e sole Claimant in this case has failed to

establish innocent ownership of the First-Named Defendant Property.
Accordingly, the First-Named Defendant Property shall be forfeited to the
United States.
IT IS SO ORDERED, this 15th day of October, 2014.

s/ Clay D. Land
CLAY D. LAND, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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