United States of America v. $97,040.00 in United States Currency

Filing 55

MEMORANDUM AND ORDER that the motion to strike claim, Filing No. 44, filed by the United States is denied; The motion for summary judgment, Filing No. 49, filed by the claimants is denied. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,
Plaintiff,

8:15CV362

vs.
MEMORANDUM AND ORDER
$97,040.00 IN UNITED STATES
CURRENCY,
Defendant.

This matter is before the Court on the United States’ motion to strike claim and
for partial summary judgment, Filing No. 44, and also on the motion for summary
judgment on behalf of claimants and cross claimants Nathan Pecor, Jonathan Perdue,
and Robert Tatro, Filing No. 49. The United States filed a complaint for forfeiture in
rem, Filing No. 1 and Filing No. 21, pursuant to 21 U.S.C. § 881. Claimants and cross
claimants contend that the defendant currency in the amount of $97,040.00 belongs to
them.
BACKGROUND
The United States argues the following facts.

On or about April 28, 2015,

Douglas County Deputy Sheriff Jason Bargstadt, while patrolling Interstate 80 in
Omaha, Nebraska, determined that a vehicle being driven by Nathan Pecor and
Jonathan Perdue was following a vehicle too closely. Nathan Pecor was the driver.
Perdue was the passenger. Both had Massachusetts’s driver’s licenses.

Deputy

Bargstadt believed he smelled the odor of marijuana coming from inside the car. He
asked Pecor where they were headed. Pecor replied to Las Vegas to gamble. He

asked Pecor several times if there were any large sums of money in the vehicle. He
responded no on all occasions. Deputy Eric Olson arrived on the scene to assist. The
deputies searched the vehicle. They found a user amount of marijuana. They found
two backpacks, one contained $52,000.00 that was bundled and rubber-banded, and
the other contained $45,040 that was bundled and rubber-banded. The total sum was
$97,040.00. Canine Voss later alerted to the two sums in two separate sterile locker
rooms.
The claimants responded to the complaint and asked for a jury trial. Claimants
contend this is their money and not the product of purchase or sale of drugs or
narcotics. They assert that they intended to use the money to gamble in Las Vegas.
Claimants further filed a cross claim against the United States pursuant to 42 U.S.C. §
1983. In their answer to the United States’ amended complaint, claimants simply deny
each of the allegations in the amended complaint and did not request a jury trial or file a
cross claim.
The claimants contend that Pecor and Perdue were taking the money given to
them by Tatro to Las Vegas to gamble and to attend an equipment auction. According
to the claimants, Tatro owned $85,000.00; Pecor owned $4,000.00; and Perdue owned
$7,000.00. Pecor and Perdue went to Tatro’s house and picked up the money prior to
making the trip. They each had a bag with part of the money. They were on their way
to Las Vegas when they were stopped. Tatro contends that his $85,000.00 came from
selling six vehicles after his business closed.

He has some receipts and bank

statements that he argues support his argument. Tatro is 56-years old and has been in
the trucking business most of his life, including owning his business called Tatro
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Trucking. Tatro has also for many years gone to auctions to buy and sell vehicles and
equipment such as pickup trucks, motorcycles, cars, semis, and heavy equipment. He
contends that he has made hundreds of thousands of dollars in his business. In 2015,
Tatro began talking with Pecor and Perdue about going on a trip to Las Vegas with him
to potentially help Tatro bring back vehicles and equipment from auctions in the Las
Vegas area and to have some fun in Las Vegas. Pecor and Perdue were to rent a car,
so that they could help drive vehicles back to Massachusetts.
Perdue was subsequently charged in Douglas County with possession of 1
ounce or less of marijuana and one count of possession of drug paraphernalia. The
possession charge against Perdue was dropped and Perdue pled guilty to one count of
possession of drug paraphernalia. Pecor was not charged with any crime or violation.
STANDARD OF REVIEW
On a motion for summary judgment, the question before the Court is whether the
record, when viewed in the light most favorable to the nonmoving party, shows that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Woods v. DaimlerChrysler Corp.,
409 F.3d 984, 990 (8th Cir. 2005). “Where the unresolved issues are primarily legal
rather than factual, summary judgment is particularly appropriate.” Mansker v. TMG
Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995).
The burden of establishing the nonexistence of any genuine issue of material fact
is on the moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970). Therefore, if defendant does not meet its initial burden with respect to
an issue, summary judgment must be denied notwithstanding the absence of opposing
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affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee’s Furniture, Inc. v.
Doughboy Recreational Inc., 825 F.2d 167, 174 (8th Cir. 1987).
Once the defendant meets his initial burden of showing there is no genuine issue
of material fact, plaintiff may not rest upon the allegations of his or her pleadings but
rather must set forth specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists. See Fed. R. Civ. P. 56(e)(2); Chism v. W.R.
Grace & Co., 158 F.3d 988, 990 (8th Cir. 1998). The party opposing the motion must
do more than simply show that there is some metaphysical doubt as to the material
facts; he or she must show there is sufficient evidence to support a jury verdict in his or
her favor. Id. “Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “Although we view the facts in a light most favorable to the nonmoving party, in order to defeat a motion for summary judgment, the non-moving party
cannot simply create a factual dispute; rather, there must be a genuine dispute over
those facts that could actually affect the outcome of the lawsuit.” Carter v. St. Louis
Univ., 167 F.3d 398, 401 (8th Cir. 1999). “In ruling on a motion for summary judgment a
court must not weigh evidence or make credibility determinations.” Kenney v. Swift
Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003).
DISCUSSION
a. Standing

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The Government contends that the claimants have no statutory or Article III
standing to raise their claims. The Court disagrees. The Court finds the claimants have
met their burden in this regard.
A claimant’s “Article III standing turns on whether the claimant has a sufficient
ownership interest in the property to create a case or controversy.” United States v. One
Lincoln Navigator 1998, 328 F.3d 1011, 1013 (8th Cir. 2003). “This threshold burden is
not rigorous: ‘To have standing, a claimant need not prove the underlying merits of the
claim. The claimant need only show a colorable interest in the property, redressable, at
least in part, by a return of the property.’” Id. at 1013 (quoting, United States v. 7725
Unity Ave. N., 294 F.3d 954, 957 (8th Cir. 2002)). In the Eighth Circuit, “a colorable
ownership interest ‘may be evidenced in a number of ways including showings of actual
possession, control, title and financial stake.’” Id. (quoting United States v. One 1945
Douglas C-54 (DC-4) Aircraft, 647 F.2d 864, 866 (8th Cir. 1981).
In the case before this Court, all three claimants came forward and claimed
ownership of some part of this money. Tatro claimed title to the largest amount, and the
other two claimants were in possession and control of the money. Tatro did not make a
“bare” assertion of ownership as argued by the United States. Instead, he tells a story
of acquiring this money through his business over the years; of attending and
purchasing at auctions; and of giving this money to the other two claimants, Pecor and
Perdue, prior to him flying to Las Vegas.
With regard to statutory standing, a claimant must come forward and state the
claimant’s interest in the property. Fed. R. Civ. P. Supp. R. G(5)(a)(i)(B); United States

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v. $154,853.00, 744 F.3d 559, 563 (8th Cir. 2014). As stated herein, the claimants have
made such a claim, supported by evidence and argument.
b. Claimants’ motion for summary judgment
Claimants contend they have submitted sufficient evidence to entitle them to
summary judgment on the claim of ownership of the subject cash. The Court disagrees.
There must be a substantial connection between the property and controlled substance
to permit forfeiture. 18 U.S.C. § 983(c)(3); United States v. $124,700 in U.S. Currency,
458 F.3d 822, 825 (8th Cir. 2006). The burden is on the Government to establish
forfeiture. If the Government meets its burden, in order to avoid forfeiture the claimant
has the burden of proving by a preponderance of the evidence that they are innocent
owners. 18 U.S.C. § 983(d)(1). An “innocent owner” is defined as “an owner who (i) did
not know of the conduct giving rise to the forfeiture; or (ii) upon learning of the conduct
giving rise to the forfeiture, did all that reasonably could be expected under the
circumstances to terminate such use of the property.” 18 U.S.C. § 983(d)(2)(A).
Like the claimants, the Government has set forth sufficient facts to create
disputed material facts. For example, the Government contends that Perdue and Pecor
have changed their story about the amount of money belonging to them. They initially
lied about whether they had a substantial amount of money in the vehicle. Tatro was
not present during the traffic stop, and neither Perdue nor Pecor mentioned his name.
Perdue and Pecor first mentioned they were going to Las Vegas to gamble, but they
initially made no mention of the auctions in Las Vegas. The currency was packaged in a
way consistent with drug proceeds. See United States v. $12,390.00, 956 F.2d 801 (8th
Cir. 1992) (“In addition, the money seized from the residence was wrapped in rubber
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bands, which, according to the unimpeached testimony of a narcotics officer, is
characteristic of the way drug money is stored.”) Id. at 806. For these reasons, the
Court finds the claimants have not met their burden, and this case will proceed to trial.
THEREFORE, IT IS ORDERED THAT:
1.

The motion to strike claim, Filing No. 44, filed by the United States is

denied;
2.

The motion for summary judgment, Filing No. 49, filed by the claimants is

denied.
Dated this 24th day of July, 2017.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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