United States of America v. One 2012 Honda Accord, VIN 1HGCS1B82CA009993
Filing
9
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 11/12/2014. (dass, Deputy Clerk)
,
FrL'ED
.
U.S. DISTRICTCOURT
IN THE UNITED STATES DISTRICT COURqJSTRICT OF MARYLAND
FOR THE DISTRICT OF MARYLAND
101~ 12 PH 3: 57
NOV
CLERK'SOFFICE
AT BALTIMORE
UNITED STATES OF AMERICA,
Plaintiff,
By
v.
----.OEPUTV.
Civil Action No. ELH-14-01294
ONE 2012 HONDA ACCORD,
VIN IHGCSIB82CA009993
Defendant.
MEMORANDUM OPINION
This
is a civil
IHGCSIB82CA009993.
in rem proceeding
to forfeit
one 2012
Honda
Accord,
VIN
The defendant vehicle was seized from Janice Livingston during a
traffic stop conducted by the Maryland Transportation Authority Police ("MT AP") on February
21,2014.
In a Verified Complaint For Forfeiture, filed by the government on April 16,2014
(ECF I), the government alleges that the vehicle is subject to forfeiture because it was used to
facilitate the transportation, concealment, receipt, possession, and exchange of contraband, i. e.,
counterfeit United States currency. See 49 U.S.C. ~ 80302(a)(3) and (b); 49 U.S.C. ~ 80303.
Ms. Livingston, to whom the vehicle is registered, has not filed a claim.
However,
Andrew Taurosa filed a claim to the defendant vehicle on August 7, 2014, ECF 5, and he filed an
Answer on August 25, 2014. ECF 7. Neither submission was made under oath, Thereafter, the
government moved to strike the claim and the Answer as untimely and for lack of standing (the
"Motion," ECF 8). In addition, the government seeks an order of forfeiture.
The Motion is filed pursuant to Rule G(8)(c)(i)(A)
of the Supplemental
Rules for
Admiralty and Maritime Claims and Asset Forfeiture Actions (the "Supplemental Rules"), based
on Taurosa's failure to comply with Supplemental Rule G(5).
In addition, pursuant to Rule
G(8)(c)(i)(B), the government challenges Taurosa's standing. Taurosa has not responded to the
Motion.
No hearing is necessary to resolve it. See Local Rule 105.6.
For the reasons that
follow, I will GRANT the Motion.
Factual Background
The government
filed a Verified Complaint
supported by the Declaration
Hardie, a Special Agent with the United' States Secret Service.
of Brent
See ECF I at 4-7.
Hardie
averred, under oath, that on February 21, 2014, MTAP observed the defendant vehicle, a 2012
black Honda Accord, two-door sedan, with New York license plate FYR 7715, swerve across
multiple lanes of 1-95 in Maryland.
A stop was effectuated,
Corporal Coby of the MTAP
approached the vehicle's passenger side and observed a woman, later identified by a New York
driver's license as Janice Livingston, holding a plastic bag that appeared to contain marijuana.
He also smelled marijuana emanating from the vehicle.
Livingston admitted, in response to a
question from Coby, that there was marijuana in the vehicle. The driver of the vehicle was asked
to produce identification.
She did not have a driver's license. Instead, she produced a New York
Benefits Identification Card, identifying her as Crystal Harris. Id. at 4 ~ f. During "a probable
cause search of the vehicle," $10,000 in U.S. currency was recovered from the glove box of the
vehicle.
Id. at 5 ~ g. Inspection of the currency suggested that it was counterfeit.
Id. Other
suspected counterfeit currency was recovered from the purse of Ms. Livingston. Id. at ~ h.
Upon request by MT AP for a Special Agent, Agent Hardie responded to the scene.
Hardie inspected
the suspected
counterfeit
currency and, based on Hardie's
training
and
experience, he determined that the currency was not genuine. Id. at 5 ~~ i, j.
During an interview, Harris waived her Miranda rights. Id. at 5 ~ k. Harris indicated that
she had asked Livingston
about the money, and "Livingston
2
informed
her that it was
I --
counterfeit." Id. at 6
'\I o.
Livingston also agreed to an interview and waived her Miranda rights.
However, she "denied knowing the money was counterfeit." Id at 6 '\I p.
A New York Department of Motor Vehicle registration check revealed that the tag on the
vehicle belonged to the Honda, and that the vehicle was registered to Janice Livingston.
at 4
'\I b.
See also id at 6
'\I q.
ECF 1
The Honda was taken into custody by MTAP on February 21,
2014. Id. at 6 '\I r.
A search of the U.S. Secret Service counterfeit-tracking
at
7'\1 s.
database was conducted.
ECF I
It indicated that almost $30,000 of the subject counterfeit $100 federal reserve notes had
been passed in the United States since April 2012. !d.
On April 18, 2014, the government sent notice.Qf the Verified Complaint (ECF 1) to
Livingston,
the registered
owner of the subject vehicle, pursuant
G(4)(b)(i).
See ECF 4 (Affidavit of Counsel) at 3
'\I
to Supplemental
Rule
5; ECF 4-1 (Exhibit A to Government's
Request For Entry Of Default) .. Then, on June 2, 2014, the government wrote a letter to Ms.
Livingston, in New York, advising that the government had sent her a notice of a civil complaint
for forfeiture of the vehicle and that a claim was due by May 23, 2014. ECF 4 at 3
at 7. The gove~ent
an additional
'\15;
stated, in bold, as follows: "As a courtesy, the government
21 days, i.e., until June 23, 2014, for you to file a claim and answer.
not file a claim and answer by this deadline, the government
grant a default judgment
of forfeiture
against the defendant
ECF 4-1
will grant
Uyou do
will seek and the court may
property."
ECF 4-1 at 7. The
deadline was extended again, until July 11,2014, after email exchanges between counsel for Ms.
Livingston and counsel for the government. ECF 4 at 4 '\15; ECF 4-1 at 20-22.
In addition, beginning on April 19,2014, notice of the pendency of this case was posted
on an official government internet site for 30 consecutive days. ECF 4 at 4 '\16; see also ECF 4-2
3
(Government Exhibit B, "Declaration of Publication").
An arrest warrant in rem was served on
the defendant and filed with the court on June 3, 2014. See ECF 3.
No claim was filed by July II, 2014. On July 14, 2014, the government requested the
entry of default, pursuant to Rule 55 of the Federal Rules of Civil Procedure and Local
Admiralty Rule (c)(4), against the defendant and all persons claiming an interest in the property,
for failure to file a timely claim, answer, or to otherwise defend.
ECF 4. The request was
supported by an Affidavit of counsel for the government as well as numerous documents.
Government Exhibit A consists of 22 pages.
As noted, Government Exhibit B contains a
"Declaration of Publication" and the Notice, indicating that notice of civil forfeiture was posted
on an official government internet site for at least 30 consecutive days, beginning on April 19,
2014, as required by Supplemental Rule G(4)(a)(iv)(c).
On August 7, 2014, Taurosa filed a "Verified Claim Of Interest" as to the defendant
vehicle.
ECF 5. And, he filed a "Verified Answer" on August 25, 2014.
ECF 7. Despite
Taurosa's use of the word "verified," neither submission was made under oath.
In the Claim, Taurosa alleged that he is a "bonafide purchaser for value," ECF 5 at "j[3(a),
and that he "co-signed
defendant."
for the defendant and "is still paying the monthly payments for the
ECF 5 at "j[3(b). He also denied participation in transportation of the contraband.
ld. "j[4. The Answer (ECF 7) does not contain any affirmative defenses.
A report obtained by Agent Hardie (ECF 8-1) is appended to the Motion. It indicates that
Ms. Livingston is the sole registered owner of the vehicle.
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Discussion
A civil forfeiture action is governed by the Civil Asset Forfeiture Reform Act of 2000
("CAFRA"),
Pub. L. No. 106-185, 114 Stat. 202 (codified in part at 18 U.S.C.
S 983).1
In a
forfeiture action, the government must "state[] the circumstances giving rise to the forfeiture
claim with sufficient particularity" to allow a claimant to conduct a "meaningful investigation of
the facts and draft[] a responsive pleading."
Cir. 2002).
Where the government's
United States v. Mondragon, 313 F.3d 862, 866 (4th
theory holds that "the 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 must "establish that there was a substantial connection between the
property and the offense."
18 U.S.C.
S 983(c)(3);
see United States v. Borromeo, 995 F.2d 23,
25 (4th Cir. 1993); United States v, $95,945.18 in Us. Currency, 913 F.2d 1106, 1110 (4th Cir.
1990); United States v. Santoro,
866 F.2d 1538, 1542 (4th Cir. 1989); United States v.
$40,041.20 In Us. Currency Seized From State Dept. Federal Credit Union Account No.
XXX786, 2012 WL 5409753, at *5 (D. Md. Nov. 5,2012) (Chasanow, J.).
Under CAFRA, the government ultimately must prove, "by a preponderance
evidence, that the property is subject to forfeiture[.]"
18 U.S.c.
may rely on circumstantial evidence to establish forfeitability."
S 983(c)(1).
of the
"The government
United States v. Herder, 594
F.3d 352, 364 (4th Cir. 2010). A determination as to whether the government has met its burden
United States v. $864,400.00 in Us. Currency,
is based on "the totality of the circumstances."
2009 WL 2171249, at *2 (M.D.N.C. July 20, 2009), aff'd, 405 F. App'x 717 (4th Cir. 2010).
The Federal Rules of Civil Procedure and the Supplemental
forfeiture action.
Rules apply to a civil
United States v. $ 74,500 in Us. Currency, 2011 WL 2712604, at *2 (D. Md.
1 A separate provision, 21 U.S.C. S 853, governs criminal forfeitures.
Kaley v. United States, __
U.S. __ ,134 S. Ct. 1090, 1094-95 (2014).
5
See generally
July II, 2011); accord Us. v, $15,860 in Us. Currency, --- F. Supp. 2d ----, 2013 WL 4516138,
at *1 (D. Md. Aug. 26, 2013); United States v, $85,000 in Us. Currency, 2011 WL 1063295, at
*I (D. Md. Mar. 21, 20 II). In the event of an inconsistency, the Supplemental Rules apply. See
Supplemental Rule A(2); see also $85,000 in US. Currency, 2011 WL 1063295, at *1.
Supplemental Rule G(4)(b )(i) requires the government to send notice of the action "to
any person who reasonably appears to be a potential claimant.. .." In the ,notice, the government
must set the deadline for filing a verified claim, at least 35 days from the date it sends notice of
the proceeding to a potential claimant.
Supplemental Rule G(4)(b)(ii).
Under Supplemental
Rule G(5)(a)(i), "[a] person who asserts an interest in the defendant property may contest the
forfeiture by filing a claim in the court where the action is pending."
See also 18 U .S.c.
S
983(a)(4)(A) (stating a person may claim an interest in seized property in a "manner set forth in
the [Supplemental Rules] ... "), An answer or motion must be filed no later than 20 days after
the filing of the verified claim. Supplemental Rule G(5)(b); 18 U.S.C.
S 983(a)(4)(B).
Pursuant to Supplemental Rule G(5)(a)(i), a judgment offorfeiture may be entered only if
the government has published notice of the action, as provided in the rule. See Supplemental
Rule G(4)(a)(ii), (iii), (iv). A claimant is required to file a claim no later than 60 days after the
first publication
of notice on the official
government
website.
Supplemental
Rule G
(5)(a)(ii)(B).
In this case, the relevant time periods initially expired on May 23, 2014 and June 18,
2014, respectively.
The government ultimately extended the claim deadline, however, until July
11,2014. See ECF 4-1 at 20-22. Nevertheless, Ms. Livingston failed to file any claim to the
defendant vehicle before the expiration of the claim deadline set forth in the direct notice and
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subsequently extended by the government.
And, Taurosa's claim was filed after the extended
deadline.
To be sure, the government never sent direct notice to Taurosa; he was not listed as a
registered owner of the vehicle.
Nevertheless, it published notice of forfeiture on an official
government internet site for 30 consecutive days, as required by Supplemental Rule 0(4)(a).
The deadline to file a claim in response to the published notice expired on June 18, 2014. Yet,
Taurosa did not file his claim until August 7, 2014 -- almost two months beyond the expiration
of the deadline. And, the claim was not verified.
Supplemental Rule 0(8)( c)(i)(A) is relevant.
It provides:
"At any time before trial, the
government may move to strike a claim or answer for failing to comply with Rule 0(5)."
See
United States v. $25,790.00 in Us. Currency, 2010 WL 2671754 (D. Md. July 2, 2010) (striking
a claimant's answer that was untimely filed).
A verified claim is an important protection against the filing of false or frivolous claims.
See United States v. $]00,340,
354 F.3d 1110, 1118-19 (9th Cir. 2004).
With respect to
timeliness, the government acknowledges that the court has discretion to accept late claims. See
United States v, One 2007 Mercedes Benz CLS 550, 2012 WL 1072252*2 (D. Md. March 28,
2012). See also United States v. Munson, 477 Fed. Appx. 57, 64 (4th Cir. 2012). In my view,
however, Taurosa has not provided any basis that would warrant the exercise of discretion to
accept his untimely, unverified claim.
In his claim, Taurosa asserted that he had no knowledge that the vehicle was used to
transport contraband.
However, he offered no explanation for his failure to timely file his claim,
or to file a claim that was not, in fact, verified, i. e., under oath. A self-represented claimant must
strictly comply with the supplemental rules. See, e.g., United States v. $22,226.25 in Interbank
7
FX Account, 763 F. Supp. 2d 944, 948-49 (E.D. Tenn. 2011); United States v. $11,210.00 in Us.
Currency, 2010 WL 2817246, *2 (E.D. Va. July 15,2010).
As noted, the government also challenges Taurosa's standing.
A claimant's standing to
contest forfeiture is a threshold matter that must be resolved before addressing an asset forfeiture
claim. Supp. R. G(8)(c)(ii)(A) & advisory committee's note ("A claimant who lacks standing is
not entitled to challenge the forfeiture on the merits."); United States v. Munson, Nos. 08-2065,
08-2159, 08-4326, 2012 WL 1302601, at *4 (4th Cir. Apr. 17, 2012) ("In order to contest a
government forfeiture action, a claimant must have the Article III standing required for any
action brought in federal court.").
The Advisory Committee Notes to Supplemental Rule G
provide that claim standing may be addressed in three ways. First, "[i]f a claim fails on its face
to show facts that support claim standing, the claim can be dismissed by judgment
pleadings."
on the
Supp. R. G(6)(c)(ii) advisory committee's note. Second, "[i]fthe claim shows facts
that would support claim standing, those facts can be tested by a motion for summary judgment"
filed by the government.
Id. And third, "[i]f material facts are disputed, precluding a grant of
summary judgment, the court may hold an evidentiary hearing," at which a "claimant has the
burden to establish claim standing."
1d. A claimant generally bears the burden of establishing
standing by a preponderance of the evidence.
Supp. R. G(8)( c)(ii)(B); see United States v. Real
Property Located at 5208 Los Franciscos Way, 385 F.3d 1187, 1191 (9th Cir. 2004).
When the government seeks judgment on the pleadings, the Court must assume the facts
alleged in the claim are true. See United States v. $133,420.00 in Us. Currency, 672 F.3d 629,
638-40 (9th Cir. 2012).
When the facts alleged in the claim are insufficient, even if true, to
establish Article III standing, then the government would be entitled to a judgment
8
on the
pleadings. See United States v, All Assets Held At Bank Julius Baer & Co., 772 F. Supp. 2d 205,
217-18 (D. DC 2011).
The nature of a claimant's interest is governed by the laws of the jurisdiction where the
property interest is asserted. See United States v. Real Property Located at 5208 Los Franc/seas
Way, 385 FJd
1187, 1191 nJ
(9th Cir. 2004).
Under Maryland Code (2012 Rep!. Vol.),
Transportation Article 911-143, an owner ofa vehicle "(1) Means a person who has the property
in or title to the vehicle; (2) Includes a person who, subject to a security interest in another
person, is entitled to the use and possession of the vehicle; (3) Does not include a lessee under a
lease not intended as security; and (4) Includes a lessee under a lease intended as security."
Registered title raises a rebuttable presumption of ownership.
1FACP41A8FZ17570
See One Ford Motor Vehicle VIN
v. State, 104 Md. App. 744, 750, 657 A.2d 825, 828 (1995).
As previously established, only Livingston appears as the owner on the registration for
the vehicle. Thus, she is presumed to be its sole owner. Taurosa has failed to allege any facts
that would be sufficient to establish his interest under Maryland law. Therefore, even assuming
the truth of the allegations in his claim, these allegations do not establish Article III standing.
See United States v. Morgan, 2002 WL 922107 (ED. Pa. May 6, 2002) (concluding that an
individual who co-signed a loan was not a bona fide purchaser for value and had no right, title or
interest in the subject property).
For these reasons, I conclude that, pursuant to Supplemental
Rule G(8)( c)(i)(A), the
Motion to Strike the Claim and Answer of Taurosa for failure to comply with Supplemental Rule
G(5) shall be GRANTED
and, further, that pursuant to Supplemental
Taurosa lacks standing to pursue his claims.
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Rule G(8)(c)(i)(B),
.
.
There are no other claimants. Accordingly, I may enter a judgment of forfeiture in favor
of the government.
See United States v. Assorted Jewelry Valued at $13,430.00, 2013 WL
775542, *2 (D.N.J. Feb. 28, 2013) (granting motion to strike and immediately entering default
judgment in the absence of any other claims); United States v $1,000.00 Refunded to Mango
Creek Properties, lnc., 2012 WL 254044, *2 (D. Neb. Jan. 27, 2012) (granting motion to strike
for lack of statutory standing and entering default judgment).
A separate Order follows.
Date:
lsi
Ellen Lipton Hollander
United States District Judge
November 12,2014
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