United States of America v. $40,041.20 in U.S. Currency seized from State Department Federal Credit Union Account number XXX786

Filing 8

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
:
v.

:

Civil Action No. DKC 12-1771

:
$40,041.20 IN U.S. CURRENCY
SEIZED FROM STATE DEPARTMENT
FEDERAL CREDIT UNION ACCOUNT
NUMBER XXX786

:
:

MEMORANDUM OPINION
Presently
forfeiture

case

pending
is

the

and

ready

motion

for

to

review

dismiss

in

filed

this
by

civil

Claimant

Lucille F. Thomas-Davis (“Thomas-Davis” or “Claimant”) (ECF No.
6).

The issues have been briefed, and the court now rules, no

hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, the motion to dismiss will be denied.
I.

Background
This civil forfeiture action filed by the United States of

America

(“the

Government”)

narcotics investigation.1
the

Prince

George’s

arises

from

a

Maryland

On September 13, 2011, officers with

County

Police

Department

Federal Express parcel addressed to Mel Angeles.

1

state

intercepted

a

(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
12

pounds

of

marijuana

inside.

The

police

then

executed

a

controlled delivery of the package, leading to the arrest of a
woman who signed for the package as “Mel Angeles.”

At that

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
Angeles.

After

a

positive

K-9

sniff

test

of

this

second

package, the officers arrested Thomas on charges of conspiracy
to possess with intent to distribute marijuana.

Thomas was

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
marijuana,

along

with

$19,640.00

banking documents, and “owe sheets.”

in

U.S.

currency,

certain

(Id. ¶ g).2

The next day, September 14, Prince George’s County Police
officers searched Thomas’s home and found drug paraphernalia,

2

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
th
267, 270 (4 Cir. 2007).
2

$3,600.00

in

U.S.

currency,

and

additional

documents.

The

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.
i).

(Id. ¶

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
District

of

Columbia

Metropolitan

Police

Department

arrested

Thomas on felony drug charges following a traffic stop.
time

of

his

arrest,

Thomas

was

carrying

$3,530.00

At the
in

U.S.

currency, a hand-rolled marijuana cigarette, and over 483 grams
of marijuana.
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
well

as

the

other

funds

enforcement officials.
received

income

from

seized

by

(Id. ¶ o).
(1) his

work

D.C.

and

Maryland

law

Thomas contended that he
as

a

cable

contractor;

(2) various rental properties he owned; and (3) a hair salon
business venture.

Yet “[a] query of reported wages for Thomas”

apparently showed that he had an income of less than $10,000 for
prior

years

and

no

reported

wages

3

for

2011.

(Id.

¶ t).

The property seized from Thomas’s Bank of America account
is not at issue in this forfeiture action.
3

Specifically with respect to the Defendant Currency, Thomas told
police that his mother, Thomas-Davis, opened State Department
Federal

Credit

Union

access the account.

account

#XXX786

and

continues

to

have

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
prior

occasions

“for

having

large

quantities

of

marijuana.”

(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.”
at 4).

(Id.

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.

(ECF No.

7-1).
On July 23, 2012, Thomas-Davis filed a

pro se

verified

claim to the Defendant Currency, which she contends represents
the “repayment of loans [she] made” to her son.
1).

(ECF No. 4, at

On August 17, 2012, Thomas-Davis filed a motion to dismiss
4

the Government’s verified complaint pursuant to Fed.R.Civ.P. 12,
asserting
process;

three
(2)

grounds

of

insufficiency

relief:
of

(1)

service

insufficiency

of

process;

and

failure to state a claim upon which relief can be granted.
No. 6).

of
(3)
(ECF

The Government filed an opposition on September 4, 2012

(ECF No. 7), and Thomas-Davis did not reply.
II.

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).

(See ECF

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.

United

States v. $85,000 in U.S. Currency, No. WDQ–10–0371, 2011 WL
1063295, at *1 (D.Md. Mar.21, 2011) (citation omitted).
Supplemental

Rule

interest

the

in

G(5)(b),
defendant

a

claimant

property

who

“must

has

serve

Under

asserted

an

and

an

file

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
forward

as

quickly

as

possible

after

the

initiation

of

forfeiture proceedings so that the court may hear all interested
parties and resolve the dispute without delay.”
v.

All

Assets

Held

at

Bank

Julius
5

Baer

&

United States
Co.,

Ltd.,

664

F.Supp.2d

97,

101

(D.D.C.

2009)

(internal

quotation

omitted).

Generally, claimants are expected “to adhere strictly

to [the] requirements” of the Supplemental Rules.

marks

Id. at 101.

“In some circumstances, however, especially where claimants are
proceeding

pro

se,

courts

may

excuse

some

minor

procedural

failings so long as the underlying goals of the Supplemental
Rules

are

not

frustrated.”

Id.

(internal

quotation

marks

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,
2012).

Relevant factors to consider in deciding whether to

overlook
claimant’s

a

claimant’s
good

faith

procedural
attempts

to

missteps
comply

include
with

“the

procedural

requirements” and “whether prejudice to the United States will
result from excusing the claimant’s procedural errors.”

All

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.

Missing a

deadline by only two days clearly constitutes a “minimal delay.”
See One 2007 Mercedes Benz, 2012 WL 1072252, at *1 (construing a
26-day

delay

as

“minimal”).

Moreover,

the

motion

is

dated

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
6

by

doing

so

–

considered,

the

merits

notwithstanding

of

Claimant’s

motion

Thomas-Davis’s

will

technical

be
non-

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.
A.

Standard of Review

“The process that begins an in rem forfeiture action is
addressed
Supp.R.G

by

subdivision

advisory

3”

of

committee’s

Supplemental

note.

Rule

See

as

Where,

G.
here,

the

defendant property is not real property and is already “in the
government’s possession, custody, or control,” the clerk of the
court

“must

issue

Supp.R.G(3)(b)(i).

a

warrant

to

arrest

the

property.”

The warrant is required to be delivered to a

person or organization “authorized to execute it,” including a
United

States

person

or

marshal.

Supp.R.G(3)(c)(i).

organization

must

then

The

execute

the

authorized
warrant.

Supp.R.G(3)(c)(ii).
The

Government

requirements

when

also

has

to

comply

initiating

a

with

certain

forfeiture

notice
action.

Significantly, however, “[n]otice of the action does not require
formal

service

[Fed.R.Civ.P.
advisory

4]

of

summons

to

initiate

committee’s

in
a

note.

the

personal
Instead,

7

manner

required

action.”
the

by

Supp.R.G.

Government

must

(1) publish notice of a forfeiture action (subject to certain
limited exceptions not relevant here); and (2) send “notice of
the

action

and

a

copy

of

the

complaint

to

any

person

who

reasonably appears to be a potential claimant on the facts known
to the government.”

Supp.R.G(4)(a)-(b).

Such notice must be

sent via “means reasonably calculated to reach the potential
claimant”

and

must

include

certain

information,

including

(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
(4) the

name

of

the

Government

Supp.R.G(4)(b)(ii)-(iii).
Supplemental

Rule

G

attorney

Notwithstanding

also

establishes

to

these

that

be

served.

requirements,

“[a]

potential

claimant who had actual notice of a forfeiture action may not
oppose

or

seek

government’s

relief

failure

from
to

forfeiture

send

the

because
required

of

the

notice.”

Supp.R.G(4)(b)(v).
B.

Analysis

Although

Thomas-Davis

generally

asserts

that

the

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
arrest warrant

in rem

for the Defendant Currency, which was
8

already in the Government’s custody.

(ECF No. 2).

The United

States Marshals Service executed the warrant on June 21, 2012.
(ECF

No.

3).

Thus,

the

process

requirements

set

forth

in

subdivision 3 appear to have been met here.
With

respect

to

notice,

the

Government

submits

evidence

indicating that it sent a “Notice of Complaint for Forfeiture”
to Thomas-Davis on June 15, 2012, along with a copy of the
verified complaint.

(ECF No. 7-1, at 1).

The Notice contains

each of the required elements set forth in Supplemental Rule G
by

(1) stating

the

date

of

notice

(i.e.,

June

14,

2012);

(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).

The

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
cannot

be

said

that

the

Government

failed

Supplemental Rule G’s notice requirements.

9

to

comply

with

Accordingly, Thomas-Davis’s motion will be denied to the
extent

it

seeks

dismissal

based

on

insufficient

process

or

that

the

insufficient service of process.
IV.

Motion to Dismiss - Failure to State a Claim
Thomas-Davis

also

seeks

dismissal

by

arguing

Government’s complaint fails to state a claim upon which relief
can be granted.
A.

Standard of Review

A motion to dismiss a forfeiture action for failure to
state

a

claim

is

governed

by

Supplemental

Rule

G(2),

which

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.”
Although

Supplemental

Rule

G

“requires

a

more

Supp.R.G(2)(f).
particularized

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
will

be

introduced

at

trial

in

its

complaint.

Rather,

the

Government can “gather [additional] evidence after the filing of
a [verified complaint] for forfeiture” to meet its burden at
trial.

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”).
10

Indeed, “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

§ 983(a)(3)(D).
circumstances
sufficient

The
giving

of

Government
rise

particularity”

to

to

the
need

the

allow

property.”
only

U.S.C.

“state[]

the

claim

with

forfeiture
a

18

claimant

to

conduct

a

“meaningful investigation of the facts and draft[] a responsive
United States v. Mondragon, 313 F.3d 862, 867 (4th

pleading.”
Cir. 2002).4
B.

Analysis

Here, the Government seeks relief pursuant to 21 U.S.C.
§ 881(a)(6),

which

establishes

that

money

is

subject

to

forfeiture if it is “furnished by any person in exchange for a
controlled substance,” “traceable to such an exchange,” or “used
or

intended

subchapter.”

to

be

used

to

facilitate

a

violation

of

this

Under the Civil Action Forfeiture Act of 2000

(“CAFRA”), the Government will ultimately have to show, by a
preponderance

of

the

evidence,

that

there

is

a

“substantial

connection” between the Defendant Currency and Thomas’s alleged

4

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).
11

drug trafficking activities.
Property,

337

§ 983(c)(1),

F.3d

(3).

225,
For

See United States v. Parcel of
(2d

233

purposes

of

Cir.
the

2003);

18

U.S.C.

instant

motion

to

dismiss, however, the standard is whether, based on the totality
of the circumstances, the Government “has provided sufficient
allegations

to

support

a

nexus

between

offense and the Defendant Currency.”

the

alleged

criminal

74,500 in U.S. Currency,

2011 WL 2712604, at *3 (citing Mondragon, 313 F.3d at 866).
The

complaint’s

factual

allegations

Specifically, the Government alleges that:

meet

this

standard.

(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
“owe

sheets,”

Defendant

in

Currency

Thomas’s
(i.e.,

truck;

(3)

$40,041.20

the

in

U.S.

next

day,

the

currency)

was

seized from a bank account held in the names of Thomas and his
mother,

Thomas-Davis;

(4)

although

Thomas-Davis

opened

the

account and continues to have access to it, she only uses the
account to make withdrawals and does not deposit any money into
the

account;

(5)

Thomas

gave

conflicting

acquired the Defendant Currency;

reports

of

how

he

(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.
12

Viewed in the

totality,

these

allegations

Defendant

Currency

support

represents

trafficking offenses.

an

proceeds

inference
from

that

Thomas’s

the
drug

Thus, the complaint permits a reasonable

belief that the Government will be able to establish at trial
that

the

funds

are

subject

to

forfeiture.

Moreover,

the

complaint’s factual allegations provide Thomas-Davis with enough
detail

to

pleading.

investigate

further

and

to

draft

a

responsive

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
V.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Claimant Lucille F. Thomas-Davis will be denied.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

5

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.”).
13