United States of America v. $40,041.20 in U.S. Currency seized from State Department Federal Credit Union Account number XXX786
MEMORANDUM OPINION (c/m to Claimant Thomas-Davis 11/5/12 sat). Signed by Chief Judge Deborah K. Chasanow on 11/5/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
Civil Action No. DKC 12-1771
$40,041.20 IN U.S. CURRENCY
SEIZED FROM STATE DEPARTMENT
FEDERAL CREDIT UNION ACCOUNT
Lucille F. Thomas-Davis (“Thomas-Davis” or “Claimant”) (ECF No.
The issues have been briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
following reasons, the motion to dismiss will be denied.
This civil forfeiture action filed by the United States of
On September 13, 2011, officers with
Federal Express parcel addressed to Mel Angeles.
(ECF No. 1,
The following facts are based on the allegations in the
Government’s verified complaint and the attached declaration of
Maria E. Pena, a task force officer with the Drug Enforcement
Administration. (ECF No. 1).
Pena Decl. ¶ a).
After a positive K-9 sniff test, the officers
obtained a search and seizure warrant for the package and found
controlled delivery of the package, leading to the arrest of a
woman who signed for the package as “Mel Angeles.”
point, Jimmy Thomas, Jr. (“Thomas”) arrived on the scene in a
black Cadillac Escalade truck.
Although Thomas claimed to be a
cable repairman who was there for a job, he could not verify his
employment, and further investigation revealed numerous phone
calls between Thomas and Angeles indicating that the two knew
each other personally.
The officers then observed a parcel in
Thomas’s truck that was similar in appearance to the one sent to
package, the officers arrested Thomas on charges of conspiracy
to possess with intent to distribute marijuana.
carrying $1,340.00 in U.S. currency at the time of his arrest.
A subsequent search of Thomas’s truck produced 12.7 pounds of
banking documents, and “owe sheets.”
(Id. ¶ g).2
The next day, September 14, Prince George’s County Police
officers searched Thomas’s home and found drug paraphernalia,
Owe sheets are “sometimes used by drug distributers to
keep track of the amount of drugs that have been provided to
customers on consignment.”
United States v. Wilson, 484 F.3d
267, 270 (4 Cir. 2007).
officers also seized $40,042.20 in U.S. currency (“the Defendant
Currency”) from a State Department Federal Credit Union account
under the names of Thomas and Claimant, Thomas’s mother.
The officers separately seized $55,967.05 in U.S. currency
from a Bank of America account held in the name of Thomas alone.3
A week later, on September 20, 2011, officers with the
Thomas on felony drug charges following a traffic stop.
currency, a hand-rolled marijuana cigarette, and over 483 grams
In a follow-up interview with Prince George’s County Police
officers on September 22, Thomas “gave contradictory statements
pertaining to his accumulation” of the Defendant Currency, as
(Id. ¶ o).
Thomas contended that he
(2) various rental properties he owned; and (3) a hair salon
Yet “[a] query of reported wages for Thomas”
apparently showed that he had an income of less than $10,000 for
The property seized from Thomas’s Bank of America account
is not at issue in this forfeiture action.
Specifically with respect to the Defendant Currency, Thomas told
police that his mother, Thomas-Davis, opened State Department
access the account.
Thomas further explained, however, that
although his mother withdraws money from the account, she “does
not deposit any funds.”
(Id. ¶ r).
During their investigation,
police also learned that Thomas has been arrested on several
(Id. ¶ s).
The Government initiated this forfeiture action in rem on
June 14, 2012, alleging that the Defendant Currency is “subject
to forfeiture pursuant to 21 U.S.C. § 881(a)(6)” because it
“contains proceeds obtained from the distribution of Controlled
and Dangerous substances in violation of 21 U.S.C. § 841.”
On June 15, the clerk issued an arrest warrant in rem
for the Defendant Currency (ECF No. 2), which was returned as
executed on July 2 (ECF No. 3).
On the same day, the Government
sent a copy of the verified complaint and a “Notice of Complaint
for Forfeiture” to Thomas-Davis at her home address.
On July 23, 2012, Thomas-Davis filed a
claim to the Defendant Currency, which she contends represents
the “repayment of loans [she] made” to her son.
(ECF No. 4, at
On August 17, 2012, Thomas-Davis filed a motion to dismiss
the Government’s verified complaint pursuant to Fed.R.Civ.P. 12,
failure to state a claim upon which relief can be granted.
The Government filed an opposition on September 4, 2012
(ECF No. 7), and Thomas-Davis did not reply.
Timeliness of Thomas-Davis’s Motion
As an initial matter, the Government appears to contend
that Thomas-Davis’s motion must be denied as untimely.
No. 7 ¶¶ 4-5).
This argument will be rejected.
The Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions, in conjunction with the Federal Rules
of Civil Procedure, apply to in rem forfeiture actions.
States v. $85,000 in U.S. Currency, No. WDQ–10–0371, 2011 WL
1063295, at *1 (D.Md. Mar.21, 2011) (citation omitted).
answer to the complaint or a motion under Rule 12 within 21 days
after filing the claim.”
The procedural requirements embodied
in the Supplemental Rules “ensur[e] that putative claimants come
forfeiture proceedings so that the court may hear all interested
parties and resolve the dispute without delay.”
Generally, claimants are expected “to adhere strictly
to [the] requirements” of the Supplemental Rules.
Id. at 101.
“In some circumstances, however, especially where claimants are
failings so long as the underlying goals of the Supplemental
omitted); see also United States v. One 2007 Mercedes Benz CLS
550, No. WDQ-11-3390, 2012 WL 1072252, at *1 (D.Md. Mar. 28,
Relevant factors to consider in deciding whether to
requirements” and “whether prejudice to the United States will
result from excusing the claimant’s procedural errors.”
Assets Held, 664 F.Supp.2d at 102.
Here, Thomas-Davis filed her motion to dismiss on August
17, 2012, 23 days after she filed her verified claim.
deadline by only two days clearly constitutes a “minimal delay.”
See One 2007 Mercedes Benz, 2012 WL 1072252, at *1 (construing a
August 15, 2012, evidencing a good faith effort by Thomas-Davis
to comply with Supplemental Rule G’s procedural requirements,
particularly given her pro se status.
In light of these factors
– and because the Government ultimately will not be prejudiced
compliance with Supplemental Rule G(5)(b).
III. Motion to Dismiss for Insufficiency of Process & Service
Claimant Thomas-Davis initially seeks dismissal by arguing
that both process and service of process were insufficient.
Standard of Review
“The process that begins an in rem forfeiture action is
defendant property is not real property and is already “in the
government’s possession, custody, or control,” the clerk of the
The warrant is required to be delivered to a
person or organization “authorized to execute it,” including a
Significantly, however, “[n]otice of the action does not require
(1) publish notice of a forfeiture action (subject to certain
limited exceptions not relevant here); and (2) send “notice of
reasonably appears to be a potential claimant on the facts known
to the government.”
Such notice must be
sent via “means reasonably calculated to reach the potential
(1) the date of the notice; (2) the deadline for filing a claim;
(3) the deadline for filing an answer or Rule 12 motion; and
claimant who had actual notice of a forfeiture action may not
Government’s complaint is subject to dismissal for insufficient
process and service of process, she does not offer any specific
arguments or evidence to show that the Government failed to meet
the process or notice requirements of Supplemental Rule G.
With respect to process, the clerk of the court issued an
for the Defendant Currency, which was
already in the Government’s custody.
(ECF No. 2).
States Marshals Service executed the warrant on June 21, 2012.
subdivision 3 appear to have been met here.
indicating that it sent a “Notice of Complaint for Forfeiture”
to Thomas-Davis on June 15, 2012, along with a copy of the
(ECF No. 7-1, at 1).
The Notice contains
each of the required elements set forth in Supplemental Rule G
(2) explaining that Thomas-Davis had 35 days to file a verified
claim for the Defendant Currency; (3) advising that Thomas-Davis
had 21 days after filing a verified claim to file either an
answer or a Rule 12 motion; and (4) stating that any claim,
answer, or motion must be sent to Richard C. Kay, an Assistant
United States Attorney based in Baltimore.
(Id. at 3-4).
Government sent the notice via certified mail to Thomas-Davis’s
home address, and she signed for delivery on June 18, 2012.
(Id. at 2 & 4).
Based on this evidence, and because Thomas-
Davis does not offer any specific argument to the contrary, it
Supplemental Rule G’s notice requirements.
Accordingly, Thomas-Davis’s motion will be denied to the
insufficient service of process.
Motion to Dismiss - Failure to State a Claim
Government’s complaint fails to state a claim upon which relief
can be granted.
Standard of Review
A motion to dismiss a forfeiture action for failure to
requires a verified complaint to “state sufficiently detailed
facts to support a reasonable belief that the Government will be
able to meet its burden of proof at trial.”
complaint than is demanded in civil actions generally,” 12 C.
Alan Wright, A. Miller, & R. Marcus, Fed. Prac. & Proc. Civ. §
3242 (2d ed.), the Government need not produce all evidence that
Government can “gather [additional] evidence after the filing of
a [verified complaint] for forfeiture” to meet its burden at
18 U.S.C. § 983(c)(2); see also United States v. Real
Prop. Located at 5208 Los Franciscos Way, 385 F.3d 1187, 1193
(9th Cir. 2004) (the Government “is not required to prove its
case simply to get in the courthouse door”).
complaint may be dismissed on the ground that the Government did
not have adequate evidence at the time the complaint was filed
“meaningful investigation of the facts and draft a responsive
United States v. Mondragon, 313 F.3d 862, 867 (4th
Here, the Government seeks relief pursuant to 21 U.S.C.
forfeiture if it is “furnished by any person in exchange for a
controlled substance,” “traceable to such an exchange,” or “used
Under the Civil Action Forfeiture Act of 2000
(“CAFRA”), the Government will ultimately have to show, by a
connection” between the Defendant Currency and Thomas’s alleged
Although Mondragon pre-dated the enactment of Supplemental
Rule G(2), the advisory committee’s notes expressly incorporated
the Fourth Circuit’s holding in promulgating the new pleading
standard for in rem forfeiture actions.
See United States v.
$74,500 in U.S. Currency, No. RDB–10–3380, 2011 WL 2712605, at
*2 (D.Md. July 11, 2011) (citing All Assets Held at Bank Julius
Baer & Co., 571 F.Supp.2d at 16).
drug trafficking activities.
See United States v. Parcel of
dismiss, however, the standard is whether, based on the totality
of the circumstances, the Government “has provided sufficient
offense and the Defendant Currency.”
74,500 in U.S. Currency,
2011 WL 2712604, at *3 (citing Mondragon, 313 F.3d at 866).
Specifically, the Government alleges that:
(1) on September 13,
2011, Thomas was arrested on charges of conspiracy to possess
with intent to distribute marijuana; (2) the police found over
12 pounds of marijuana, as well as certain banking documents and
seized from a bank account held in the names of Thomas and his
account and continues to have access to it, she only uses the
account to make withdrawals and does not deposit any money into
acquired the Defendant Currency;
(6) Thomas’s reported wages
were less than $10,000 for the past several years and were $0
for 2011; and (7) Thomas has been arrested on numerous occasions
for possessing large quantities of marijuana.
Viewed in the
Thus, the complaint permits a reasonable
belief that the Government will be able to establish at trial
complaint’s factual allegations provide Thomas-Davis with enough
Although the Government may need to adduce additional
evidence to prevail on the merits, the verified complaint meets
the pleading requirements of Supplemental Rule G, and ThomasDavis’s motion must be denied.5
For the foregoing reasons, the motion to dismiss filed by
Claimant Lucille F. Thomas-Davis will be denied.
order will follow.
DEBORAH K. CHASANOW
United States District Judge
The Government’s argument that Thomas-Davis cannot
establish a viable “innocent owner” defense within the meaning
of 18 U.S.C. § 983(d) will not be addressed as it has no bearing
on whether the Government has met its initial pleading burden
under Supplemental Rule G(2).
Cf. United States v. Assets
Described in Attachment A to the Verified Complaint Forfeiture
In Rem, 799 F.Supp.2d 1319, 1324 (M.D.Fla. 2011) (“[T]he burden
of establishing an innocent owner defense does not arise until
after the Government meets its burden of establishing the
forfeitability of the subject property in the first instance.”).
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