United States of America v. $20,000.00 In U.S. Currency
Filing
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OPINION AND ORDER: Court DENIES 7 Motion to Dismiss Verified Complaint in Rem. Signed by Magistrate Judge Paul R Cherry on 11/24/2014. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
$20,000.00 in U.S. CURRENCY,
Defendant,
MANUEL DE JESUS VELASQUEZ,
Claimant.
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CAUSE NO.: 2:14-CV-357-PRC
OPINION AND ORDER
This matter is before the Court on a Motion to Dismiss Verified Complaint in Rem [DE 7],
filed by Claimant Manuel De Jesus Velasquez on October 27, 2014. Plaintiff the United States of
America filed an opposition brief on November 10, 2014. Velasquez has not filed a reply, and the
time to do so has passed.
The Government filed a Verified Complaint in Rem for forfeiture of $20,000.00 pursuant
to 21 U.S.C. § 881, making the following factual allegations:
1. On May 29, 2014, a police officer was stationed in the median on I-65 observing
north bound traffic, when the officer observed a red vehicle in the left lane about to
pass a semi-tractor in the right lane. Approximately ½ mile away from the officer,
the red vehicle quickly slowed and pulled behind the semi-tractor trailer. As the red
vehicle passed the officer, he observed it traveling at a speed of 65 mph
approximately one car length behind the semi-tractor trailer. The officer pulled out
and behind the red vehicle and observed it cross the fog lane. As a result of the two
infractions, the officer pulled over the vehicle.
2. The red vehicle was occupied by two individuals, the driver, Velasquez, and a
passenger. The vehicle was registered to a third-person. Velasquez appeared
extremely nervous and his hands were shaking. The officer had Velasquez sit in the
police vehicle while he conducted a license check.
3. While in the police vehicle, the officer asked Velasquez where he was coming
from and Velasquez stated he was looking for a house and then stuttered and
changed it to looking for a car. The officer asked Velasquez where he looked at cars
and for what type of cars. Velasquez was vague indicating only that they had come
from Cicero, Illinois, and driven to Indianapolis, Indiana, where they drove around
the streets looking for cars.
4. The officer then went back to the red vehicle to identify the passenger. The
passenger stated that he and Velasquez went to Indianapolis to look for a location for
a new restaurant, but that they did not stop anywhere, but just drove around. The
officer then went back to his vehicle and asked Velasquez if they were looking for
a restaurant location and Velasquez said no.
5. The officer asked Velasquez for consent to search the vehicle which was given.
The passenger was then seated in the police car with Velasquez while the officer
searched. The police vehicle’s audio-video recorder was on and Velasquez is heard
telling the passenger what he should say regarding the purpose of the trip. The
passenger told Velasquez that he told the officer the wrong story.
6. During the search of the vehicle, the officer found a laptop bag containing the
defendant property ($20,000.00 in U.S. Currency). The currency was folded into
$1,000.00 stacks and each stack was combined with four other stacks. A drug
detecting canine was summoned and the dog reacted positively to the presence of
controlled substances in the vehicle and to the laptop bag containing the currency.
(Compl.).
Under 21 U.S.C. § 881(a)(6), currencies or negotiable instruments are subject to forfeiture
if they are furnished or intended to be furnished in exchange for a controlled substance, used or
intended to be used to facilitate a prohibited narcotics transaction, or are proceeds traceable to an
exchange of controlled substances. The Government must prove, by a preponderance of the
evidence, that the property is subject to forfeiture. See 18 U.S.C. § 983(c)(1). If the Government’s
theory is that the seized property was used to commit or facilitate the commission of a crime, it must
establish that there was a substantial connection between the property and the offense. See 18 U.S.C.
§ 983(c)(3).
In the instant motion, Claimant Velasquez seeks dismissal of the Verified Complaint in Rem
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for failure of the Government to allege a nexus between the $20,000.00 and alleged violations of 21
U.S.C. § 841. Although Velasquez does not cite any rule in support of his Motion to Dismiss and
although Velasquez has not filed a separate brief as required by Northern District of Indiana Local
Rule 7-1(b), the motion is governed by Rule G(8)(b) of the Supplemental Rules for Certain
Admiralty and Maritime Claims and Federal Rule of Civil Procedure 12(b)(6):
(b) Motion To Dismiss the Action.
(i) A claimant who establishes standing to contest forfeiture may move to
dismiss the action under Rule 12(b).
(ii) In an action governed by 18 U.S.C. § 983(a)(3)(D) the complaint may not
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. The sufficiency of the complaint is governed by Rule G(2).
Supplemental Rule G(8)(b).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint and not the merits of the suit. See Gibson v. City of Chi., 910 F.2d 1510,
1520 (7th Cir. 1990). In ruling on such a motion, the Court accepts as true all of the well-pleaded
facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d
1074, 1082 (7th Cir. 2008).
Rule G(2) of the Supplemental Rules for Certain Admiralty and Maritime Claims, which
governs pleadings in a civil forfeiture action, requires that the complaint: (a) be verified; (b) state
the grounds for subject matter jurisdiction, in rem jurisdiction over the property, and venue; (c)
describe the property with reasonable particularity; (d) if the property is tangible, state its location
when any seizure occurred and–if different–its location when the action was filed; (e) identify the
statute under which the forfeiture action is brought; and (f) state sufficiently detailed facts to support
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a reasonable belief that the government will be able to meet its burden of proof at trial.
Supplemental Rule G(2)(a-f); see 18 U.S.C. § 983(a)(3)(A).
In the instant motion, Velasquez challenges only the last requirement. To survive the Motion
to Dismiss, the Complaint must provide sufficient facts to support a “reasonable belief” that the
Government will be able to prove by a preponderance of the evidence at trial that the seized
$20,000.00 was derived from or was intended to be used to commit a drug offense.
In his motion, Velasquez states that he is gainfully employed as a proprietor of a Mexican
restaurant known as Los Pinoleros, located in Stickney, Illinois, and he argues that no controlled
substance was found in the vehicle, implying that the drug detecting canine’s positive reaction to
the presence of a controlled substance is insufficient as a matter of law to believe the money is
linked to a narcotics transaction.
A positive dog sniff, however, is entitled to probative weight in this Circuit. See United
States v. Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars, 403 F.3d 448, 460
(7th Cir. 2005). In addition to the canine alert, the allegations of the quantity of the seized currency
($20,000.00), the manner in which the currency was bundled, Velasquez’s nervous appearance when
confronted by law enforcement, and the inconsistent statements given by Velasquez and by the
passenger as to the purpose of their trip are sufficient to support a reasonable belief that the
Government will be able to prove by a preponderance of the evidence at trial that the seized
$20,000.00 is subject to forfeiture under § 881(a)(6). See United States v. Funds in the Amount of
Three Hundred, Nine Thousand & Seven Hundred Fifty Dollars ($309,750.00), No. CIV.A. 08 C
5586, 2009 WL 1974425, at *3 (N.D. Ill. July 8, 2009).
Finding that the Government has met its pleading burden, the Court hereby DENIES the
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Motion to Dismiss Verified Complaint in Rem [DE 7].
SO ORDERED this 24th day of November, 2014.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
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