United States of America v. THIRTY FIVE THOUSAND SIX HUNDRED FIFTY ONE DOLLARS AND ELEVEN CENTS ($35,651.11) IN U.S. CURRENCY FROM PNC BANK ACCOUNT NUMBER XXXXXX6937

Filing 34

NOTICE that 19 Claimant's Motion for Prompt Hearing and Return of Property will be Construed as a Motion for Summary Judgment; ORDER REQUIRING Supplemental Briefing, DENYING 10 MOTION to Dismiss Claimant's Counterclaim, and SETTING Evidentiary Hearing. Evidentiary Hearing set for 12/4/2013 01:30 PM before District Judge Terrence G. Berg. HEARING WILL BE HELD IN FLINT. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 13-13118

$35,651.11,

HON. TERRENCE G. BERG
HON. LAURIE J. MICHELSON

Defendant.

/

NOTICE THAT CLAIMANT’S MOTION FOR PROMPT HEARING
AND RETURN OF PROPERTY (DKT. 19) WILL BE CONSTRUED AS
A MOTION FOR SUMMARY JUDGMENT;
ORDER REQUIRING SUPPLEMENTAL BRIEFING, DENYING THE
GOVERNMENT’S MOTION TO DISMISS COUNTERCLAIM (DKT. 10), AND
SETTING EVIDENTIARY HEARING
This is an in rem civil forfeiture action, concerning $35,651.11 in electronic
funds, seized by the Internal Revenue Service (“IRS”) from PNC Bank account
number XXXXXX6937. The IRS seized these funds for alleged violations of 31
U.S.C. § 5324, commonly referred to as “structuring.”1 This PNC Bank account is
the business account of Dehko Foods, Inc. d/b/a Schott’s Supermarket, which is a
grocery store located in Frasier, Michigan. Dehko Foods, Inc. (“Claimant”) filed an

The Bank Secrecy Act requires the filing of a currency transaction report (“CTR”) for transactions,
either in to or out of a bank account, of more than $10,000 in currency. See 31 U.S.C. § 5313(a). It
is illegal for any person “to structure ... any transaction with one or more domestic financial
institutions” for the purpose of evading the reporting requirements. 31 U.S.C. § 5324(a)(3). In other
words, it is illegal to make deposits of less than $10,000, if the intent in doing so is to avoid the filing
of CTRs. Any property involved in or traceable to illegal structuring is subject to criminal and civil
forfeiture. Id. § 5317(c).
1

Answer (Dkt. 7, amended by Dkt. 28) to the Complaint and a Claim (Dkt. 11) to the
funds.
Presently before the Court are the Government’s motion to dismiss
Claimant’s counterclaim (Dkt. 10) and Claimant’s motion for prompt post-seizure
hearing and return of property (Dkt. 19). Subsequent to the Government’s filing of
its motion to dismiss the counterclaim, Claimant filed an Amended Answer (Dkt.
28), which omitted any counterclaim. Furthermore, during oral argument on
October 23, 2013, Claimant’s counsel indicated that Claimant is not pursuing any
counterclaim in this action.2 Therefore, the Government’s motion to dismiss the
counterclaim is DENIED AS MOOT.
As to Claimant’s motion for prompt post-seizure hearing and return of
property, the Court hereby notifies the parties that it intends to treat this motion as
a motion for summary judgment as a matter of law on the issue of the timeliness of
the Government’s Complaint only.3 The parties are directed to submit
supplemental briefs according to the schedule set out below, which shall address the
following issues:

Instead, Claimant filed a separate civil action (E.D. Mich. 13-14085), which has been reassigned to
this Court as a companion case to this forfeiture action.
2

During the hearing on Claimant’s motion, Claimant’s counsel indicated that Claimant was
“amenable” to the Court’s consideration of its timeliness challenge as a summary judgment motion
(Dkt. 29; Tr. 45).
3

2

1.

Whether the IRS mail room procedures provide for incoming mail to be

stamped or marked in any manner so as to record the date the mail was
received in the mail room, whether on the envelope, or in any other manner;
2.

Whether Claimant’s claim form, or the envelope containing the claim

form, received by the IRS in this case, was date-stamped or marked in any
manner by the mail room personnel so as to permit the Asset Forfeiture
Coordinator to become aware of the date that the claim form was received in
the mail room;
3.

Whether 18 U.S.C. § 983(a)(3)(A) authorizes the Court to extend the

Government’s period for filing a Complaint, assuming that the Complaint has
already been filed, after the expiration of the 90-day period;4
4.

Whether, presuming that such a “good cause” extension is statutorily

available to the Government in this matter, sufficient cause may be shown to
warrant an extension of the filing deadline in this case;
5.

Whether the supplemental authority (Dkt. 33) filed by the Government

on November 5, 2013 should have been brought to the Court’s attention prior

The Court directs the parties to brief the proper interpretation of the following provision of
that section: “a court in the district in which the complaint will be filed may extend the period for
filing a complaint for good cause shown or upon agreement of the parties.” The supplemental
authority (Cox, J.) provided by Claimant (Dkt. 32, Ex. 1) indicates that a “good cause” extension is
not available to the Government after the expiration of § 983(a)(3)(A)’s 90-day period. However, the
supplemental authority (Steeh, J.) provided by the Government (Dkt. 33, Ex. 4) indicates that a
“good cause” extension is available to the Government, even after the expiration of § 983(a)(3)(A)’s
90-day period. Furthermore, the Sixth Circuit opinion provided by the Government (Dkt. 33, Ex. 1)
appears to assume that a “good cause” extension is available, stating “the district court should decide
whether the government made a sufficient showing of cause to excuse its untimely filing.” Id. at 5.

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to the hearing held on October 23, 2013, and, if so, why such authority was
not presented;5
6.

Whether there is any reason why the seizure warrant (and any

supporting affidavit attached thereto) should not be disclosed to the Claimant
and filed as an exhibit to the Government’s supplemental brief.6
The Government’s supplemental brief is due by November 15, 2013, and
Claimant’s supplemental brief is due by November 22, 2013. Such briefs shall not
exceed 15 pages. The Court will hold an evidentiary hearing on December 4, 2013
at 1:30 p.m. in Flint, Michigan. The Government is directed produce Asset
Forfeiture Coordinator Kathleen Robinson, and any other witness or witnesses,
such as a mail room clerk or a supervisor responsible for the IRS mail room, who
has personal knowledge of the IRS’s mail handling procedures, generally, to testify
concerning the specific handling of Claimant’s claim in this case.
SO ORDERED.

Dated: November 7, 2013

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

In particular, the Court notes that the Order of April 22, 2010 by Judge Steeh in E.D. Mich.
Case No. 07-12269, attached as Exhibit 4 to the Government’s supplemental authority (Dkt. 33),
found that a claimant’s claim was filed on the date received in the mail room of the U.S. Secret
Service, not on the date that it was received by the forfeiture official, as the Government had argued,
and that the complaint in that case was therefore untimely filed. It is unclear to the Court why this
opinion is not authority adverse to the government’s position in this case, and why it was not earlier
brought to the Court’s attention as such.
5

If there is no danger of impeding or adversely affecting any ongoing criminal investigation,
and no other legitimate reason requiring delay in disclosing the seizure warrant and supporting
affidavit, the Government is directed to disclose them as attachments to its supplemental brief.  

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4

Certificate of Service
I hereby certify that this Order was electronically submitted on November 7,
2013, using the CM/ECF system, which will send notification to each party.
s/A. Chubb
Case Manager

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