United States of America v $59,980 in US Currency

Filing 9

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, Herbert Wong's Rule 12(b)(6) Motion to Dismiss and Motion for Summary Judgment 5 is DENIED. Signed by Judge Rudy Lozano on 5/2/2018. (Copy mailed to pro se party)(jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,

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) No. 2:17-cv-438
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Plaintiff,
v.
$59,980.00 in U.S. Currency
Defendant,
Herbert Wong,
Movant.

OPINION AND ORDER
This matter is before the Court on Defendant’s Rule 12(b)(6)
Motion to Dismiss and Motion for Summary Judgment, filed by Herbert
Wong on December 29, 2017.

(DE #5.)

For the reasons set forth

below, the motion is DENIED.
BACKGROUND
The United States of America filed a Verified Complaint in
Rem

(“Complaint”)

to

forfeit

and

condemn

$59,980.00

in

U.S.

currency (“Currency”) seized at a Federal Express location in South
Bend, Indiana, on or about May 1, 2017, pursuant to 21 U.S.C. §
881(a)(6).
instant

Herbert Wong (“Wong”), proceeding pro se, filed the

motion

to

dismiss

and

motion

for

summary

judgment,

asserting that the Complaint fails to state a viable claim as a
1

matter of law.1

The government filed a response to the motion on

January 9, 2018.

The motion is now ripe for review.

DISCUSSION
Factual Allegations
The

Verified

Complaint

in

Rem

(“Complaint”)

alleges

the

following facts:
On May 1, 2017, law enforcement officers received a call from
an employee at Federal Express in South Bend, Indiana, concerning
a suspicious package addressed to an individual in California.
(DE #1, ¶7.)

The employee stated that the man who delivered the

package seemed nervous, and she detected the odor of marijuana.
(Id.)

Law enforcement officers arrived at the FedEx facility and

observed the package was completely sealed with tape.

(Id.)

The

package was placed on the floor with three other similarly sized
packages.

(Id.)

suspicious package.

A drug detecting canine alerted only to the
(Id.)

A law enforcement officer then called

the sender of the package.· (Id. ¶8.)

The officer identified

himself and explained that the canine had alerted to the package.
(Id.)

The officer asked the sender what was in the package to

which he replied a board game called "Stow and Go" which he was
sending to a friend in California.

(Id.)

The officer believed

1 Wong makes the same arguments in support of dismissal under Rule 12(b)(6) and
summary judgment, and fails to comply with local rules regarding motions for
summary judgment.
See N.D. Ind. L.R. 7-1, 56-1.
As such, the Court will
consider his motion to be one for dismissal under Rule 12(b)(6).

2

this to be suspicious as the package weighed around 7 or 8 pounds.
(Id.)

The officer sought more information from the sender who

refused to provide any more.

(Id.)

obtained to search the package.

A state search warrant was

(Id. ¶9.)

Upon opening the

package, officers found another wrapped small box labeled "Stow
and Go" in which they found four vacuum-sealed packages containing
the Currency.

(Id.)

The sender of the Currency had been under

investigation for illegal drug activity prior to the date of the
seizure.

(Id. ¶10.)

While the Complaint does not identify the sender or intended
recipient of the package by name, the government mailed a copy of
the

Direct

Notice

of

Judicial

Forfeiture

Proceedings,

the

Complaint, and the Warrant of Arrest in Rem to the “Addressee’s”
of the package:

Leon Miller of South Bend, Indiana, and Herbert

Wong of San Gabriel, California.

(DE #4.)

Standard of Review
Civil asset forfeiture cases are governed by the Federal Rules
of Civil Procedure, Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions (“Supplemental Rules”).

18

U.S.C. § 983(a)(4)(A); see also Fed. R. Civ. P. Supp. R. A(1)(B)
(the “Supplemental Rules apply to . . . forfeiture actions in rem
arising from a federal statute”).

Supplemental Rule G(8)(b)(i)

states that “[a] claimant who establishes standing to contest

3

forfeiture may move to dismiss the action under Rule 12(b).”2
R. Civ. P. Supp. R. G(8)(b)(i).

Fed.

Federal Rule of Civil Procedure

12(b)(6) allows a complaint to be dismissed if it fails to state
a claim upon which relief can be granted.
12(b)(6).

In

order

to

survive

a

Rule

Fed. R. Civ. P.

12(b)(6)

motion,

the

complaint “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face’.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d
868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)).

All well-pleaded

facts must be accepted as true, and all reasonable inferences from
those facts must be resolved in the plaintiff's favor.
Tribune Co., 521 F.3d 686, 692 (7th Cir. 2008).

Pugh v.

The sufficiency

of the complaint is governed by Supplemental Rule G(2), which
provides that a complaint must “state sufficiently detailed facts
to support a reasonable belief that the government will be able to
meet its burden of proof at trial.”

Fed. R. Civ. P. Supp. R.

G(2)(f); see Fed. R. Civ. P. Supp. R. G(8)(b)(ii).

“[T]he burden

of proof is on the Government to establish, by a preponderance of
the evidence, that the property is subject to forfeiture.”

18

2 Wong maintains that he filed a Verified Claim Statement on August 23, 2017.
(DE #5 at 3.) While the record does not reflect the August 23, 2017 Verified
Claim Statement, Wong’s motion includes a signed Verified Claim Statement
asserting he is the rightful property owner of the Currency. (Id. at 3-4.)
The government does not object or otherwise argue that Wong lacks standing to
contest this forfeiture, and therefore, the Court will consider Wong to be a
claimant.

4

U.S.C. § 983(c)(1).
is

that

the

Where “the Government's theory of forfeiture

property

was

used

to

commit

or

facilitate

the

commission of a criminal offense, or was involved in the commission
of a criminal offense, the Government shall establish that there
was a substantial connection between the property and the offense.”
18 U.S.C. § 983(c)(3).
Analysis
Wong contends that the forfeiture action should be dismissed
because the Complaint fails to allege his knowledge and intent as
required under 21 U.S.C. § 881(a)(6).

Section 881(a)(6) provides

that “[a]ll moneys . . . furnished or intended to be furnished by
any person in exchange for a controlled substance . . . , all
proceeds traceable to such an exchange, and all moneys . . . used
or

intended

to

be

used
be

to

facilitate

subject

to

any

violation

forfeiture.

21

of

this

subchapter”

shall

U.S.C.

§

881(a)(6).

Considering the totality of the circumstances, and

presuming the Complaint allegations to be true, the Court finds
that the government’s allegations are sufficient to support a
reasonable belief that the Currency was proceeds traceable to the
knowing and intentional exchange for controlled substances.

The

Complaint alleges that the Currency “constitutes money furnished
or intended to be furnished in exchange for a controlled substance
in violation of the Controlled Substances Act.”
further

alleges

that

a

Federal
5

Express

(DE #1, ¶6.)

employee

alerted

It
law

enforcement officers to the suspicious package; a drug detecting
canine alerted only to that package; when an officer called the
sender of the package, he indicated that it contained a board game;
the officer found this answer to be suspicious because the package
weighed around 7 or 8 pounds; in response to the officer’s further
inquiries, the sender refused to provide more information; after
obtaining a search warrant, officers opened the package and found
another wrapped small box in which they found four sealed packages
containing the $59,980 in U.S. currency; and the sender of the
Currency had been under investigation for illegal drug activity
prior to the date of the seizure.

When viewed in the aggregate,

the Complaint states sufficiently detailed facts to support a
reasonable belief that the government will be able to meet its
burden proof at trial.

See United States v. $335,260.00 in U.S.

Currency, No. 1:09-CV-2929, 2010 WL 1416919, at *2 (N.D. Ohio Apr.
6, 2010) (finding that allegations of a large quantity of currency
packed in the claimant’s suitcase, his untruthful statement that
his luggage did not contain currency, and the dog's alert to the
presence of drugs satisfied Supplemental Rule G); United States v.
Funds in Amount of One Hundred Thirty-One Thousand Five Hundred
Dollars, ($131,500.00) in U.S. Currency, No. 08 C 1377, 2008 WL
3823698, at *3 (N.D. Ill. Aug. 12, 2008) (allegations regarding
the positive dog sniff, large amount of currency claimant was
carrying, his arguably questionable explanation for why he had the
6

currency, and other alleged facts, satisfied Supplemental Rule G).
Wong asserts that the drug detecting dog’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.”

U.S. v.$20,000.00 in U.S.

Currency, No. 2:14-CV-357-PRC, 2014 WL 6669676, at *3 (N.D. Ind.
Nov. 24, 2014) (citing United States v. Funds in the Amount of
Thirty Thousand Six Hundred Seventy Dollars, 403 F.3d 448, 460
(7th Cir. 2005)).

While it remains to be seen what the evidentiary

record ultimately will establish in this case, as the law stands
in this Circuit, “allegations regarding the results of a positive
dog sniff, at least in combination with other evidence, are not
deficient as a matter of law to establish the government's burden
in a forfeiture case.”

Funds in Amount of One Hundred Thirty-One

Thousand Five Hundred Dollars, 2008 WL 3823698, at *3.
Wong contends that no drugs or paraphernalia were found in
the seized package, and that the Currency was the proceeds from
his sale of certain jewelry to Leon Miller.

These challenges go

to whether the government will ultimately be able to establish the
requisite connection between the Currency and drug trafficking.
They do not address the sufficiency of the complaint.

Moreover,

“the Government may use evidence gathered after the filing of a
complaint for forfeiture to establish, by a preponderance of the
7

evidence, that property is subject to forfeiture.” 18 U.S.C. §
983(c)(2).

“No complaint may 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.”
U.S.C. § 983(a)(3)(D).

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Because the allegations pleaded in the

Complaint are sufficient, dismissal at this stage in the litigation
would be premature.
CONCLUSION
For the reasons set forth above, Herbert Wong’s Rule 12(b)(6)
Motion to Dismiss and Motion for Summary Judgment (DE #5) is
DENIED.

DATED: May 2, 2018

/s/ RUDY LOZANO, Judge
United States District Court

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