United States of America v. One 2003 Mercedes Benz CL500 VIN WDBPJ75J353A033241

Filing 9

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 7/15/2013. (c/m 7/15/2013 eb)(ebs2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.

Case No.: PWG-11-3571
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ONE 2003 MERCEDES BENZ CL500,
VIN WDBPJ75J353A033241,
Defendant.

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MEMORANDUM OPINION
Pending before the Court is the Motion for Default Judgment and Order of Forfeiture,
ECF No. 7, that Plaintiff, the United States of America (“the Government”), filed in this
forfeiture in rem action against Defendant, One 2003 Mercedes Benz CL500, VIN
WDBPJ75J353A033241 (“the Mercedes”). Ms. Gaunzie Cherri Hart, pro se, filed a letter with
the Court, requesting that the Mercedes be returned to her. ECF No. 8. For the reasons stated
below, Ms. Hart’s letter, which the Court construes as an Answer, is STRICKEN, and the
Government’s Motion is DENIED WITHOUT PREJUDICE to resubmission, after compliance
with the guidance provided below.
I.

BACKGROUND

During an investigation into a drug trafficking organization, the Drug Enforcement
Administration (“DEA”) investigated John Edward Butler, Jr. and learned that he participated in
“a violent cocaine trafficking organization” and “negotiated the purchase of 5 kilograms of

cocaine with the DEA CS [confidential source].” Aff. of Task Force Officer Mark D. Howard 1–
2.

Mr. Butler exchanged $74,780.00 in U.S. currency for half of the cocaine.

Id. at 3.

Surveillance during those negotiations revealed the Mercedes parked in front of Mr. Butler’s
garage. Id. at 2. DEA members executed a search and seizure warrant and at Butler’s home and
seized “indicia of [Butler’s] drug trafficking activities” and documents including the title to the
Mercedes. Id. at 4. Pursuant to another warrant on July 15, 2011, DEA members seized the
Mercedes from in front of Mr. Butler’s mother’s house, which Mr. Butler used “as a distribution
location . . . for cocaine and ‘crack’ cocaine.” Id. at 5. The Mercedes was seized as “proceeds
traceable to the sale or exchange of controlled substances in violation of 21 U.S.C. § 841” and as
a vehicle used in illegal drug activity. Compl. ¶¶ 3 & 5, ECF No. 1.
Task Force Officers interviewed Ms. Hart on July 18, 2011, and she said that she sold the
Mercedes to Mr. Butler for $13,500, of which Mr. Butler had paid $4,000 as a down payment.
Howard Aff. 5. In the interview, Ms. Hart said that Mr. Butler’s mother informed her of the
Mercedes’s seizure. Id. On September 16, 2011, Mr. Butler and Ms. Hart each filed a claim
letter in the administrative forfeiture proceeding. Aff. of Asst. U.S. Att’y James Crowell in
Support of Gov’t Mot. for Entry of Default ¶ 4, ECF No. 5-1.
Thereafter, on December 13, 2011, the Government initiated this action with a Verified
Complaint seeking forfeiture of the Mercedes pursuant to 21 U.S.C. § 881(a)(4) and (6). Compl.
¶ 5. The Government mailed copies of the Verified Complaint via certified mail, return receipt
requested, to Mr. Butler and Ms. Hart on January 4, 2012. Crowell Aff. ¶ 4, ECF No. 5-1;
Notices and Return Receipts, ECF No. 5-2. Ms. Hart signed the return receipt for the Complaint

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on January 12, 2012, and Mr. Butler’s return receipt was signed on January 9, 2012.1
Receipts.

Return

The Notices of Complaint for Forfeiture mailed with the Complaint included

instructions on how to file a verified claim for the property and the deadline for doing so. Notices
¶¶ 3-4. Specifically, they stated that a verified claim had to be filed within thirty-five days of
receipt of the notice and had to be signed under penalty of perjury. Id. They also stated that an
answer had to be filed within twenty days of filing a claim. Additionally, the Government
published notice of this case on www.forfeiture.gov, an official government website, beginning
on January 5, 2012. Publication 2–3, ECF No. 5-3. That notice stated that a verified claim had
to be filed within sixty days of the posting and an answer within twenty-one days of filing the
claim. Id.
The Government moved for an entry of default on May 15, 2013, and the Clerk entered a
default on May 16, 2013. The Government filed its Motion for Default Judgment on May 21,
2013. Ms. Hart wrote her letter requesting the return of the Mercedes on July 9, 2013, and the
Court received it July 10, 2013. Ltr. 1. In the letter, Ms. Hart said that she “was recently
notified by John and Juanita Butler that [her] car is available for pick up,” and that she did not
“personally receive[] any notification from the courts.” Id.
II.

CLAIMING PROPERTY SUBJECT TO FORFEITURE

The proper mechanism for contesting a forfeiture action is set forth in the Supplemental
Rules for Certain Admiral and Maritime Claims, and, as with the other Supplemental Rules,

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The signature on Ms. Hart’s return receipt appears to be the letter “G” followed by a drawing of
a heart, and the name of the signor is not printed on the return receipt. However, given that the
mail was addressed to “Gaunzie Cherri Hart,” and that “Hart” and “heart” are homophones, it is
evident from the first initial “G” and the drawing of a heart that Gaunzie Hart signed for the
Complaint. The signature on Mr. Butler’s return receipt is not legible.
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strict compliance is required. United States v. $14,250 U.S. Currency, No. CCB-12-1252, 2012
WL 6681920, at *1–2 (D. Md. Dec. 21, 2012).
Supplemental Rule G governs a forfeiture action in rem arising from a
federal statute. Supp. R. G(1). 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.
§ 983(a)(4) (A) (stating a person may claim an interest in seized property in a
“manner set forth in the [Supplemental Rules]”). The government may set the
deadline for filing a verified claim at 35 days from the date it sends notice of the
proceeding to a potential claimant. Supp. R. G(4)(b)(ii). A verified claim
contesting forfeiture must accomplish the following: 1) identify the specific
property claimed, 2) identify the claimant and state the claimant's interest in the
property, 3) be signed by the claimant under penalty of perjury, and 4) be served
on the government's attorney. Supp. R. G(5)(a). After filing a claim, a person
asserting an interest in seized property has 21 days to serve and file an answer to
the complaint for forfeiture. Supp. R. G(5)(b).
The Supplemental Rules “must be strictly enforced.” United States v.
$12,914.00 in U.S. Currency, 828 F. Supp. 2d 822, 824 (D. Md. 2011) (internal
citations omitted); United States v. Borromeo, 945 F.2d 750, 752 (4th Cir. 1991)
(noting that “[c]ourts consistently have required claimants to follow the language
of the Supplemental Rules to the letter”). Of the Rule G(5) requirements, the
verified claim is the “most significant.” United States v. $12,914.00, 828 F. Supp.
2d at 824; see also United States v. $487,825.00 in U.S. Currency, 484 F.3d 662,
664 (3rd Cir .2007). The requirement serves two purposes: it ensures that all
potential claimants come forward quickly and it minimizes the danger of false
claims. United States v. $487,825.00, 484 F.3d at 664–665.
A claimant who fails to file a verified claim has no standing to contest a
forfeiture. Id. at 665–66 (holding claimant lacked statutory standing for failure to
comply with the Supplemental Rules when claimant filed an answer but no
verified claim). Thus, if a claimant has failed to file a qualifying claim within the
time limits allowed by law, the district court should strike the answer on the
pleadings and enter a default judgment for the government. See United States v.
$23,000, 356 F.3d 157, 163–64 (1st Cir. 2004) (affirming a default judgment
against a claimant who filed an answer, but not a claim).
United States v. $14,250 U.S. Currency, 2012 WL 6681920, at *1-2.

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Ms. Hart has filed a letter with the Court. The Court construes this letter as an answer to
the Verified Complaint. See Fed. R. Civ. P. 1; Supp. R. G(5)(b) (requiring interested party to file
an answer). Of import, the letter cannot be construed as a verified claim; it certainly was not
signed under penalty of perjury. See Supp. R. G(5)(a). Thus, Ms. Hart has not filed a verified
claim. See id. For that reason alone, Ms. Hart lacks standing to contest the forfeiture of the
Mercedes.2 See United States v. $14,250, 2012 WL 6681920, at *2.
Moreover, Ms. Hart received notice of this action on January 12, 2012, as demonstrated
by the return receipt she signed and contrary to Ms. Hart’s statement in her letter that she never
received “notification from the courts” of this action. See Notice & Return Receipt; Ltr. 1.
Further, that notice informed her of the requirements and deadline for a verified claim. Notice
¶¶ 3–4. Additionally, the Government posted notice on its forfeiture website beginning in
January 2012. Publication 2–3. Also, according to her own statement on July 18, 2011, Ms.
Hart was aware of the seizure of the Mercedes at that time. Howard Aff. 5. Nonetheless, Ms.
Hart did not file her letter until July 10, 2013, almost eighteen months after receiving notice of
this action. Therefore, Ms. Hart’s letter, which the Court construes as an answer, is STRICKEN.
See United States v. $14,250, 2012 WL 6681920, at *2.
III.

DEFAULT JUDGMENT

Rule 55(b) of the Federal Rules of Civil Procedure and Supplemental Rule G4 govern
default judgments in forfeiture in rem actions. United States v. $85,000.00 in U.S. Currency, No.
WDQ-10-371, 2011 WL 1063295, at *1 (D. Md. Mar. 21, 2011). “Supplemental Rule G(4)(a)
provides that a judgment of forfeiture ‘may be entered only if the government has published

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Also, Ms. Hart’s ownership interest in the Mercedes is questionable, given that Mr. Butler
possessed the title, and Ms. Hart stated that she sold the Mercedes to Mr. Butler. See Howard
Aff. 5.
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notice of the action within a reasonable time after filing the complaint or at a time the court
orders.’” Id. (quoting Supp. R. G(4)(a)(i)). Publication may be by posting “on an official internet
government forfeiture site for at least 30 consecutive days.” Supp. R.G. (4)(a)(iii)(B). The
Government filed the Verified Complaint on December 13, 2011 and provided notice by
publication on www.forfeiture.gov on January 5, 2012, less than one month later. Publication 2–
3. The publication appeared on the website until February 3, 2012, a period of thirty consecutive
days. Id. Thus, the Government published notice within a reasonable time through acceptable
means.

See Supp. R. G(4)(a).

“The notice must describe the property with reasonable

particularity and state the time to file a claim and to answer.” United States v. $85,000.00, 2011
WL 1063295, at *1 (citing Supp. R. G(4)(a)(ii)). The notice provided the VIN number for the
Mercedes and stated that any interested party had sixty days to file a verified claim and twentyone days from filing the claim to file an answer. Publication 2. No one other than Ms. Hart has
asserted an interest in the Mercedes, Gov’t Mot. ¶ 6, and as discussed supra, Ms. Hart’s answer
has been stricken.
If the criteria for notice are met, as they are here, the entry of default judgment is a matter
within the Court’s discretion. SEC v. Lawbaugh, 359 F. Supp. 2d 418, 421 (D. Md. 2005) (citing
Dow v. Jones, 232 F. Supp. 2d 491, 494 (D. Md. 2002)). In determining whether to award a
default judgment, the Court takes as true the well-pleaded factual allegations in the complaint,
other than those pertaining to damages. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780
(4th Cir. 2001); see Fed. R. Civ. P. 8(b)(6) (“An allegation—other than one relating to the
amount of damages—is admitted if a responsive pleading is required and the allegation is not
denied.”). It remains, however, “for the court to determine whether these unchallenged factual
allegations constitute a legitimate cause of action.” Agora Fin., LLC v. Samler, 725 F. Supp. 2d

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491, 494 (D. Md. 2010); see United States v. $85,000.00, 2011 WL 1063295, at *2; 10A Charles
Alan Wright et al., Fed. Prac. and Proc. Civ. § 2688 (3d ed. 1998) (“[L]iability is not deemed
established simply because of the default and the court, in its discretion, may require some proof
of the facts that must be established in order to determine liability.”); id. (explaining that the
Court must “consider whether the unchallenged facts constitute a legitimate cause of action,
since a party in default does not admit mere conclusions of law”).
Civil forfeiture complaints 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). At trial, the government is required
to prove that the defendant property is subject to forfeiture by a preponderance of
the evidence. 18 U.S.C. § 983(c). When “the Government's theory of forfeiture is
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,” it must
establish “a substantial connection between the property and the offense.” 18
U.S.C. § 983(c)(3).
United States v. $85,000.00, 2011 WL 1063295, at *2.

Therefore, a default judgment is

appropriate if the Government has shown the grounds of forfeiture, i.e., a “substantial
connection” between the Mercedes and illicit drug activity, by a preponderance of the evidence.
See id.; United States v. $3,156.00 in U.S. Currency, No. L-10-1128, 2010 WL 4719393, at *1
(D. Md. Nov. 15, 2010).
“‘The hurdle imposed by the ‘substantial connection’ requirement is not . . . a particularly
high one.’” United States v. 998 Cotton Street, Forsyth County, N.C., No. 11-CV-356, 2013 WL
1192821, at *10 (M.D.N.C. Mar. 22, 2013) (quoting United States v. Borromeo, 995 F.2d 23, 26,
vacated in part on other grounds, 1 F.3d 219 (4th Cir. 1993)). Thus, “[r]easonable inferences
may be drawn from the evidence presented to establish a nexus between the Property and drug
activity.” Id. Notably, although the property “need not be integral, essential, or indispensable to

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[criminal] activity,” it still “must have more than an incidental or fortuitous connection to
criminal activity.” Id.
As noted, the Government attached the Affidavit of Task Force Office Howard to its
Verified Complaint. The Affidavit shows by a preponderance of the evidence that Mr. Butler,
who was engaged in illegal drug activity at the time, paid Ms. Hart $4,000 up front for the
Mercedes and agreed to pay her an additional $9,500 incrementally.

Howard Aff. 2–5.

Additionally, the vehicle was seized in front of a location that Mr. Butler used in drug
distribution. Id. at 5. Yet, $4,000 is a modest sum compared to the $74,780.00 that Mr. Butler
handed over to purchase 2.5 kilos of cocaine during the same time period. The Government has
not yet shown by a preponderance of the evidence that this small payment was proceeds from
drug transactions. Moreover, the Government has not shown that Mr. Butler drove the Mercedes
to and from the drug distribution location or that he drove it to distribute drugs, rather than to
visit his mother. Therefore, the Government has failed to establish by a preponderance of the
evidence that there was a substantial connection between the Mercedes and Mr. Butler’s illegal
drug activity.
Accordingly, the Government’s Motion for Default Judgment is DENIED without
prejudice to refiling it with further facts supporting the connection between the Mercedes and
Mr. Butler’s illegal drug activity.
IV.

CONCLUSION

In sum, Ms. Hart’s letter, which the Court construes as an answer, it is STRICKEN, and
the Government’s Motion for Default Judgment is DENIED, without prejudice.

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A separate order shall issue.
Dated: July 15, 2013

/S/
Paul W. Grimm
United States District Judge

lyb

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