United States Of America v. $80,891.25 in U.S. Currency

Filing 22

ORDER granting 11 Motion to Dismiss; granting 11 Motion for Return of Property; granting 18 Motion. Davila-Tosado is ordered to submit a brief on the issue of the damages within seven days of this Order. The government is ordered to submit its response within seven days of Davila-Tosado's filing. The Court will not accept any replies. Signed by Judge B. Avant Edenfield on 12/19/2011. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v. 4:11-cv-183
$80,891.25 in U.S. CURRENCY,
Defendant.
ORDER
Before this Court are Claimant Daniel
Davila-Tosado’ s (“Davila-Tosado”)
“Motion to Dismiss; or, in the alternative,
Motion for Return of Property Pursuant to
18 U.S.C. §983(a)(3)(A),” see Doc. 11, and
“Motion for Relief,” see Doc. 18.
Davila-Tosado asserts that the
Government’s complaint for forfeiture was
untimely. See Doc. 18 at 1. “Not later than
90 days after a claim [by a person claiming
seized property] has been filed, the
Government shall file a complaint for
forfeiture in the manner set forth in the
Supplemental Rules for Certain Admiralty
and Maritime Claims or return the property
pending the filing of a complaint . . . .” 18
U.S.C. § 983(a)(3)(A). “If the Government
does not . . . file a complaint for forfeiture or
return the property . . . the Government shall
promptly release the property pursuant to
regulations promulgated by the Attorney
General, and may not take any further action
to effect the civil forfeiture of such property
in connection with the underlying offense.”
Id. § 983(a)(3)(B).

The Government filed its complaint on
July 14, 2011. See Doc. 1. In its response
to Davila-Tosado’s motion, the Government
claims that the DEA Asset Forfeiture
Section did not receive Davila-Tosado’s
claim until April 15, 2011. See Doc. 19 at 2.
Thus, according to the Government, its
complaint was timely filed ninety days after
the Asset Forfeiture Section received the
claim. See id.
According to the Government’s
complaint, however, Davila-Tosado filed a
claim on April 13, 2011. See Doc. 1 at 5.
“The general rule is that a party is bound by
the admissions in his pleadings.” Cooper v.
Meridian Yachts, Ltd., 575 F.3d 1151, 1177
(11th Cir. 2009) (quoting Best Canvas
Prods. & Supplies, Inc. v. Ploof Truck Lines,
Inc., 713 F.2d 618, 621 (11th Cir. 1983));
see also Shuler v. Ingram & Assocs., 2011
WL 4495624, at *3 (11th Cir. Sept. 29,
2011) (“Judicial admissions are proof
possessing the highest possible probative
value . . . and are facts established not only
beyond the need of evidence to prove them,
but beyond the power of evidence to
controvert them.” (quoting Hill v. FTC, 124
F.2d 104, 106 (5th Cir. 1941))); Hunt v.
Liberty Lobby, 720 F.2d 631, 649 & n. 29
(11th Cir. 1983) (noting court’s willingness
to apply rule to amended complaint). Thus,
the Government is bound by its statement
that Davila-Tosado filed his claim on April
13, 2011.
The Government had to file its
complaint on or before July 12, 2011, ninety
days after Davila-Tosado filed his claim.
See 18 U.S.C. § 983(a)(3)(A). Instead, the
Government filed its complaint on July 14,
2011. See Doc. 1.
Accordingly, the

Government’s complaint was untimely, and
the Government “shall promptly release the
property pursuant to regulations
promulgated by the Attorney General, and
may not take any further action to effect the
civil forfeiture of such property in
connection with the underlying offense.” 18
U.S.C. § 983(a)(3)(B).

F.3d 1318, 1322 n.4 (11th Cir. 2002); see
also United States v. $59,000, 2010 WL
3212002, at *2 (S.D. Fla. Aug. 12, 2010).
“A ‘prevailing party’ is one ‘who has been
awarded some relief by the court.’”
$59,000, 2010 WL 3212002, at *2 (quoting
Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dept. of Health, 532 U.S. 598, 603
(2001)). The award must be the result of a
“judicially sanctioned change in the legal
relationship of the parties.” Buckhannon,
532 U.S. at 605.

This outcome comports with our law’s
presumption against forfeiture. See United
States v. $38,000.00, 816 F.2d 1538, 1547
(11th Cir. 1987) (“If anything, the burden on
the government to adhere to the procedural
rules should be heavier than on claimants.
Forfeitures are not favored in the law; strict
compliance with the letter of the law by
those seeking forfeiture must be required.”).

As a result of the Government’s failure
to file a timely complaint, the Court is
ordering the return of the entire amount
seized to Davila-Tosado. The Court is
judicially sanctioning a change in the legal
relationship between the Government,
Davila-Tosado, and the money at issue.
Thus, Davila-Tosado has substantially
prevailed, and the Government shall be
liable for the items delineated in 28 U.S.C. §
2465(b)(1 )(A)-(C).

Davila-Tosado also moves for attorney’s
fees and other costs in accordance with 28
U.S.C. § 2465. See Doc. 18 at 2. 28 U.S.C.
§ 2465(b)(1) provides that “in any civil
proceeding to forfeit property under any
provision of Federal law in which the
claimant substantially prevails, the United
States shall be liable” for certain expenses.
These expenses are reasonable attorneys
fees and other litigation costs incurred by
the claimant, post-judgment interest, and
interest actually paid or that should have
been paid resulting from the investment of
the seized currency. See id. § 2465(b)(1)(A)(C).

After reviewing the record, the Court
also certifies that there was reasonable cause
for the seizure. See 28 U.S.C. § 2465(a)(2).
Because of its other determinations in
the case, the Court does not reach DavilaTosado’s remaining arguments. See Docs.
11 at 1 (alleging failure of Government to
take steps necessary to preserve right of
custody); 18 at 1 (averring Government’s
neglect in responding to his first motion to
dismiss).

Davila-Tosado is a “substantially
prevail[ing]” party. Albeit in dicta, the
Eleventh Circuit has determined that any
differences between a “prevailing party” and
a “substantially prevailing party” “are
generally deemed inconsequential.” See
Loggerhead Turtle v. Cnty. Council, 307

Davila-Tosado’ s “Motion to Dismiss;
or, in the alternative, Motion for Return of
Property Pursuant to 18 U.S.C.
§983(a)(3)(A),” see Doc. 11, and “Motion
for Relief,” see Doc. 18, are GRANTED.
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DA VILA-TOSADO IS ORDERED TO
SUBMIT A BRIEF ON THE ISSUE OF
DAMAGES WITHIN SEVEN (7) DAYS
OF THIS ORDER. THE GOVERNMENT
IS ORDERED TO SUBMIT ITS
RESPONSE WITHIN SEVEN (7) DAYS
OF DA VILA-TOSADO ’S FILING. The
Court will not accept any replies.
This 19th day of December 2011.

B- AVANT EDENFIELØ, JUDGE
AVANT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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