United States of America v. Currency $82,300

Filing 18

ORDER DENYING 6 Government's Motion to Dismiss Claim for Lack of Standing, and DENYING 14 Claimant's Motion to Dismiss Complaint. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF
AMERICA,

2:18-cv-11848
HON. TERRENCE G. BERG

Plaintiff,
v.
EIGHTY-TWO THOUSAND
THREE HUNDRED
DOLLARS ($82,300) IN U.S.
CURRENCY,

ORDER DENYING
GOVERNMENT’S MOTION
TO DISMISS CLAIM FOR
LACK OF STANDING, AND
DENYING CLAIMANT’S
MOTION TO DISMISS
COMPLAINT

Defendant In Rem.

This is an in rem civil forfeiture action brought by the United
States of America against $82,300 in U.S. Currency. Drug
Enforcement Administration (“DEA”) agents seized this money
from Lamar Eddington at the Detroit Metropolitan Airport. Compl.,
ECF No. 1 PageID.1–2. Demond Gibson, Claimant in this case,
argues the money belongs to him. The government, however,
asserts that the money is connected to a suspected drug deal and

thus that it is entitled to civil forfeiture of the $82,300 under 21
U.S.C. § 881(a)(6). This case is presently before the Court on
Claimant’s motion to dismiss the government’s complaint for civil
forfeiture (ECF No. 6), and the government’s motion to strike
Gibson’s claim and dismiss his interest in the $82,300 for lack of
standing (ECF No. 14). For the reasons discussed below, the Court
will deny both motions.
BACKGROUND
On January 29, 2018, DEA agents seized $82,300 from Lamar
Dajuan Eddington at the Detroit Metropolitan Airport in Romulus,
Michigan. ECF No. 1 PageID.3. The government states that it
became interested in Eddington because DEA agents had “received
information” about him, that Eddington had multiple prior felony
drug convictions and he was traveling on a one-way ticket from
Detroit, Michigan to San Francisco, California. Id.
Plain-clothes DEA agents waited for Eddington at his gate,
showed him their credentials, and asked about his travel plans. Id.
at PageID.3–4. The government alleges Eddington could not
provide any detailed information about his travel plans and was
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unable to produce any information to corroborate basic facts he
disclosed to the agents. Id. at PageID.4. While this conversation
with Eddington was unfolding, other DEA agents located a checked
suitcase with a name-tag reading “Lamar Eddington.” Id. They
placed that suitcase in a lineup of three other similar suitcases and
a trained narcotics canine named Lightning carried out a K-9 sniff.
Id. at PageID.5. Lightning “gave a positive indication for narcotics
odor coming from the suitcase” with Eddington’s name-tag. Id. With
Eddington’s consent, agents searched the suitcase. Id. They
initially found a manila envelope, and asked Eddington what was
inside. Eddington responded: “paperwork.” Id. When the agents
opened the envelope, they found another white plastic envelope. Id.
Inside that envelope they found magazines taped along the edges.
Id. Upon un-taping the magazines, they found $82,300 in U.S.
currency, all in $100 bills, which is at issue in this suit. See id.
When the agents informed Eddington of their discovery, he
responded by stating “yeah.” Id. Eddington then agreed to
accompany the agents to an office and continue speaking with
them. Id. at PageID.6. He was not under arrest at this point and
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consented to a search of his bags and person. Id. Lightning
conducted another K-9 sniff on the cash found in Eddington’s
checked luggage and “positively alerted to the presence of a
controlled substance emitting from the currency.” Id. Eddington
admitted that he had attempted to hide the money inside the
magazines to evade law enforcement. Id. at PageID.7. But no drugs,
scales, or any other items indicative of drug manufacturing or sale
appear to have been recovered during the search. See generally id.
Eddington then told the agents the money he was transporting
belonged to a friend named Demond Gibson, Claimant in this suit,
and that Gibson gave it to him at the Motor City Casino in Detroit
on January 28, 2018. Id. According to Eddington, Claimant wanted
him “to possibly purchase an eighteen-wheeler truck [with the
money], but he did not have contact information for any truck
dealership or seller.” Id. The government alleges that agents then
seized the $82,300 from Eddington “[b]ased upon probable cause
that the Defendant Currency was either derived from the sale of
controlled substances and/or intended to be used to purchase
controlled substances.” Id. at PageID.8.
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The government began administrative forfeiture proceedings
for the $82,300 seized from Eddington. Id. Gibson filed a claim for
the entire amount and the matter was subsequently referred to the
United States Attorney’s Office for judicial proceedings. Id. The
parties’

briefs

contain

no

specific

information

about

the

administrative proceedings but Claimant does not dispute that the
government

complied

with

applicable

law

during

the

administrative forfeiture process. On June 11, 2018, the
government filed a complaint for civil forfeiture with this Court.
ECF No. 1. The government served Claimant with the complaint
and a notice of forfeiture proceedings on June 19, 2018. ECF No. 3.
Claimant answered the complaint on July 10, 2018 and filed a
motion to dismiss the complaint the following day, July 11, 2018.
ECF Nos. 5, 6. Claimant did not file a traditional verified claim to
the $82,300 until July 30, 2018, six days after his deadline to do so.
ECF No. 9. On that basis, the government moved to strike
Claimant’s verified claim and dismiss his interest in the money for
lack of standing. ECF No. 14.

5

DISCUSSION
The government claims it is entitled to civil forfeiture of the
$82,300 seized from Eddington because “[a]ll moneys . . . or other
things of value furnished or intended to be furnished by any person
in exchange for a controlled substance or listed chemical,” and all
proceeds “traceable to such an exchange” are subject to forfeiture to
the United States government. 21 U.S.C. § 881(a)(6). At the
pleading stage, civil forfeiture actions are “governed jointly by the
Federal Rules of Civil Procedure and the Supplemental Rules for
Admiralty or Maritime Claims and Asset Forfeiture Actions.”
United States v. Real Prop. Located at 6001 N. Ocean Drive, No. 1511574, 2015 WL 5209637, at *1 (E.D. Mich. Sep. 4, 2015) (Cleland,
J.) (citing 18 U.S.C. § 983(a)(3)(A)). “While the supplemental rules
govern, the normal set of rules may help to clarify any ambiguity.”
6001 N. Ocean Drive, 2015 WL 5209637, at *1 (quoting United
States v. One Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1, 13
(S.D.N.Y. 2013) (internal quotation marks omitted)).

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A. Government’s Motion to Strike Claim and Dismiss
Interest.
The government urges that Claimant lacks statutory
standing to challenge civil forfeiture because he failed to file a
verified claim of interest within the timeframe specified by Rule
G(5)(a)(ii). On that basis, it seeks to strike Claimant’s claim and
dismiss his interest in the $82,300 at issue. But an affidavit
attached to Claimant’s motion to dismiss, which was filed within
the time permitted by Rule G(5)(a)(ii), meets the criteria for a
verified claim. ECF No. 6-1 PageID.65. Based on the affidavit, this
Court finds Claimant indeed has statutory standing to challenge
civil forfeiture and accordingly will deny the government’s motion
to strike his claim and dismiss his interest in the $82,300. ECF No.
14.
A claimant “must have both Article III and statutory standing
to contest a civil forfeiture.” U.S. v. $5,730.00 in U.S. Currency, 109
F. App’x 712, 713 (6th Cir. 2004) (citing United States v. Currency
$267,961.07, 916 F. 2d 1104, 1107 (6th Cir. 1990)). Article III
standing is satisfied if the claimant demonstrates a “mere colorable
interest in the seized property.” $5,730.00, 109 F. App’x at 713. The
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government does not specifically dispute that Claimant can
demonstrate Article III standing. Rather, it seeks dismissal of his
interest solely on the basis that Claimant filed his verified claim
after the deadline expired under Rule G(5)(a)(ii) and therefore lacks
statutory standing. See generally ECF No. 14.
Statutory standing in a civil forfeiture action, as the Sixth
Circuit has repeatedly held, requires a claimant to “strictly comply”
with Rule G of the Supplemental Rules. U.S. v. One 2011 Porsche
Panamera, 684 F. App’x 501, 506 (6th Cir. 2017) (citing United
States v. One Men’s Rolex Pearl Master Watch, 357 F. App’x 624,
627 (6th Cir. 2009) (requiring “strict compliance” with the
requirements of Rule G) (additional citations omitted)). Under 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.” A claimant “must file a verified claim
within thirty-five days after the government sends a forfeiture
notice, and file an answer within twenty-one days after filing a
verified claim.” U.S. v. Real Prop. and Premises, 521 F. App’x 379,
384 (6th Cir. 2013) (citing Fed. R. Civ. P. Supp. R. G(5)(a)(ii) and
8

G(4)(b)(ii)(B)–(C)). The verified claim must: (A) “identify the specific
property claimed”; (B) “identify the claimant and state the
claimant’s interest in the property”; (C) “be signed by the claimant
under penalty of perjury”; and (D) “be served on the government
attorney designated [to receive notices].” Fed. R. Civ. P. Supp. R.
G(5)(a)(i).
The government sent its complaint and forfeiture notice to
Claimant on June 19, 2018. ECF No. 3. Accordingly, under Rule G
and the timeline set forth in the forfeiture notice, Claimant’s
verified claim had to be submitted no later than by July 24, 2018.
See Fed. R. Civ. P. Supp. R. G 5(a)(ii); Fed. R. Civ. P. Supp. R.
G(4)(b)(ii)(B); ECF No. 14 (stating that the government gave
Claimant 35 days to file his claim). Claimant did not file his verified
claim until July 30, 2018, six days after that deadline. ECF No. 9.
But he did file an answer and then a motion to dismiss the
government’s complaint within 35 days of the date the government
sent its forfeiture notice.1

Claimant does not specify the statutory basis for his motion to dismiss. If the
motion to dismiss is one for failure to state a claim upon which relief can be
granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the motion
is technically untimely because a motion asserting any defense under Rule

1

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Attached to Claimant’s motion to dismiss is his sworn
affidavit. ECF No. 6-1 PageID.65. While the affidavit was filed as
an exhibit to Claimant’s motion to dismiss, and not identified as a
verified claim as such, it meets Supplemental Rule G’s
requirements for verified claims. See id. It identifies the $82,300
Claimant contends belongs to him, and explains Claimant’s
ownership interest in the property. Id. Specifically, Claimant
explains that the $82,300 is part of $158,500 he won at the Motor
City Casino on January 28, 2018, the day before Eddington was
stopped at the Detroit airport. Id. Critically, the affidavit was also
signed and sworn by Claimant and served on the government along
with the motion to dismiss. Accordingly, the affidavit meets the
parameters of Rule G(5)(a)(i). This Court will thus construe it a
timely verified claim and on that basis deny the government’s
motion to dismiss Claimant’s interest in the $82,300.

12(b) “must be made before pleading.” Fed. R. Civ. P. 12(b). The Court,
however, will construe Claimant’s motion as one for judgment on the pleadings
under Rule 12(c), which may be filed after the answer. See Shoucair v.
Williams, No. 07-12964, 2010 WL 5015348, at *2 (E.D. Mich. Oct. 27, 2010)
(report and recommendation) (Hluchaniuk, M.J.).

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B. Claimant’s
Complaint.

Motion

to

Dismiss

Civil

Forfeiture

Claimant moved to dismiss the government’s complaint on the
basis that the government has not sufficiently pled a justification
for civil forfeiture. ECF No. 6. Specifically, Claimant avers the
government has not satisfied the pleading requirements for civil
forfeiture actions established by the Supplemental Rules for
Admiralty or Maritime Claims and Asset Forfeiture Actions.2
Because Claimant’s motion to dismiss was filed after his answer,
the Court considers it a motion for judgment on the pleadings under
Rule 12(c) of the Federal Rules of Civil Procedure. See infra at 9–10
n.1. Claimant is unable to meet the standard required for judgment
on the pleadings, however, so Plaintiff’s motion will be denied.
Motions under Rule 12(c) are “functionally equivalent to a
motion to dismiss” and “are analyzed using the same standard

Claimant contends pleading requirements in civil forfeiture actions are
governed by Supplemental Rule E(2). See generally ECF No. 6. But since the
enaction of Supplemental Rule G in 2006, civil forfeiture complaints are
properly assessed under Rule G. United States v. $1,111,120.00 in U.S.
Currency, No. 3:10-cv-317, 2014 WL 12788164, at *2 n.1 (S.D. Oh. Feb. 18,
2014) (citing Fed. R. Civ. P. Supp. R. G Advisory Committee Notes). The actual
pleading standard has not changed; the standard under Rule E(2) simply
“evolved to the standard stated in subdivision [G](2)(f).” Fed. R. Civ. P. Supp.
R. G Advisory Committee Notes.
2

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employed for a motion to dismiss under Rule 12(b)(6)).” United
States

v.

One

Million

Seven

Hundred

Thousand

Dollars

($1,700,000.00) in U.S. Currency, 545 F. Supp. 2d 645, 651 (E.D.
Mich. Feb. 28, 2008) (Cleland, J.) (citations omitted); United States
v. Vehicle 2007 Mack 600 Dump Truck, VIN 1M2K189C77M036428,
680 F. Supp. 2d 816, 826 (E.D. Mich. Jan. 20, 2010) (Rosen, J.)
(citing Tucker v. Middleburg—Legacy Place, 539 F. 3d 545, 549 (6th
Cir. 2008)). Despite the heightened pleading burden borne by the
plaintiff in a civil forfeiture action, “[f]or purposes of a motion for
judgment on the pleadings, all well-pleaded material allegations of
the pleadings of the opposing party [the government] must be taken
as true, and the motion may be granted only if the moving party is
clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v.
Winget, 510 F. 3d 577, 582 (6th Cir. 2007) (internal quotations and
citation omitted). In making this determination, the Court “need
not accept as true legal conclusions or unwarranted factual
inferences.” Winget, 510 F. 3d at 581–82 (quoting Mixon v. Ohio,
193 F. 3d 389, 400 (6th Cir. 1999)).

12

Rule G(2) outlines the heightened pleading standard
applicable in civil forfeiture actions. That rule provides that
complaints in civil forfeiture actions 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). Since the Civil Asset Forfeiture Reform Act’s (“CAFRA”)
enactment in 2000,3 the government’s burden of proof has been to
establish, by a preponderance of the evidence, that the property at
issue is subject to forfeiture. 18 U.S.C. § 983(c)(1). Additionally, the
Sixth Circuit held in United States v. Real Prop. 10338 Marcy Road
Northwest, Canal Winchester, Ohio, 659 F. App’x 212, 216 (6th Cir.
2016) that where, as here, the government seeks forfeiture of illegal
drug activity under 21 U.S.C. § 881(a)(6), it must show a
“‘substantial connection’ between the property to be forfeited and
illegal drug-trafficking activity.” But see United States v. $21,000.00
in United States Postal Money Orders and $785.00 in U.S.
Currency, 298 F. Supp. 2d 597, 601 (E.D. Mich. 2003) (explaining

Congress enacted CAFRA” to “make federal civil forfeiture procedures fair to
property owners and to give owners innocent of any wrongdoing the means to
recover their property and make themselves whole after wrongful government
seizure.” H.R. Rep. No. 106–192, at 8 (1999).

3

13

that the burden of demonstrating a substantial connection “does
not require the government to prove a direct connection between
the illegal activity and the seized assets”) (emphasis added).
At the same time, Rule G(8) provides that a civil forfeiture
complaint “cannot 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.” Fed. R. Civ. P. Supp.
R. G(8)(b)(ii). Rather, Rule G(8) provides, “The sufficiency of the
complaint is governed by Rule G(2).” That Rule sets out certain
basic requirements, including the standard set out above, that the
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).
Other courts have interpreted Rule G(8)’s provision to mean
that the government’s forfeiture claim may advance in the face of a
motion to dismiss (or motion for judgment on the pleadings) “even
if the Government’s complaint does not provide all the facts that
would allow the Government to ultimately succeed in the forfeiture
proceeding.” United States v. $225,300.00 in U.S. Funds from
14

FirstBank (Jackson, TN) Account No. 86476002 in Name of Norene
Pumphrey, No. 1:12-cv-01075, 2012 WL 4486105, at *3 (W.D. Tenn.
Sep. 27, 2012) (quoting United States v. 630 Ardmore Drive, City of
Durham, Parkwood Tp., Durham County, N.C., 178 F. Supp. 2d
572, 581 (M.D.N.C. 2001)).
Under Rule 12(c), Rule G, and CAFRA’s burden of proof
provision, 18 U.S.C. § 983(c)(1), the government here must plead
facts sufficient to establish by preponderance of the evidence that
the $82,300 DEA agents seized from Eddington at the Detroit
airport was properly subject to forfeiture and had a “substantial
connection” to unauthorized drug sale or purchase. See 10338
Marcy Road Northwest, Canal Winchester, Ohio, 659 F. App’x at
216. Here, the allegations do not include any statements that
Eddington or Gibson were engaged in selling or purchasing illegal
drugs at or around the time its agents seized the $82,300 from
Eddington at Metro airport. It is alleged that Eddington had
multiple prior felony drug convictions, but such history is not in and
of itself proof that the money he was carrying in this instance was
used in illegal drug sales or purchases. ECF No. 1 PageID.3; see
15

$21,000 in U.S. Postal Money Orders and $785.00 in U.S. Currency,
298 F. Supp. 2d at 603 (finding that a claimant’s prior drug
convictions were probative but “insufficient to show a connection
[between the defendant property and illegal drug transaction] by a
preponderance of the evidence”). It is also alleged that a trained
narcotics canine “gave a positive indication for narcotics odor”
emanating from the suitcase belonging to Eddington and from the
$82,300 in cash. This proof does suggest that the money was
connected to the purchase or sale of illegal narcotics. But to
conclude that the facts pled by the government are sufficient to
establish a “substantial connection” between the $82,300 and illegal
drug trafficking is a closer call. Putting aside that question for the
moment, Rule G(8)(b)(ii)’s provision that a “complaint cannot 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” (emphasis added) certainly
counsels in favor of denying Claimant’s motion here. To dismiss at
this stage solely because of a somewhat slack connection in the
complaint between the seized money and drug trafficking would
16

seem to violate this Rule. It may be that further investigation has
discovered additional evidence in support of showing a substantial
connection between the money and drug trafficking. And keeping
in mind the Court’s obligation to evaluate the sufficiency of the
complaint under Rule G(2), the Court finds, though perhaps just
barely, that the complaint may be said to “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).
The Court will thus deny Claimant’s motion to dismiss.
CONCLUSION
For these reasons, the government’s motion to strike claim
and dismiss interest (ECF No. 14) is DENIED. Claimant Demond
Gibson’s motion to dismiss the complaint for civil forfeiture (ECF
No. 6) is also DENIED.
SO ORDERED.
Dated: March 11, 2019
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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