USA v. One MacBook Air 11-inch Model A1370 et al

Filing 3

ORDER - Accordingly, the court takes the summons and warrant in rem (doc. no. 1-3) under advisement and gives the government until December 3, 2012, to file supplemental documentation that contains more specificity. If the gover nment does not file any further documentation by that date, the court may recommend that the matter be dismissed without prejudice. 1 Complaint - New Case. ( Follow up on Objection on 12/3/2012.) So Ordered by Magistrate Judge Landya B. McCafferty.(lml)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America
v.

Civil No. 12-cv-436-LM

One MacBook Air 11-inch,
Model A1370, serial number
C02FX0AYDJYD et al.

O R D E R
The Government requests issuance of a summons and warrant
of arrest in rem (doc. no. 1-3), pursuant to 18 U.S.C. §
981(a)(1)(C), which allows forfeiture of “[a]ny property, real
or personal, which constitutes or is derived from proceeds
traceable to a violation of” certain enumerated offenses,
including wire and mail fraud.
To support its request, the government also relies on Rule
G(3)(b)(ii) of the Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions (“Supplemental Rules”).
Where the subject property is not real property, is not in the
government’s possession, custody or control, and is not subject
to a judicial restraining order, Rule G(3)(b)(ii) provides that
“the court - on finding probable cause - must issue a warrant to
arrest the property . . . .”

Thus, the rule requires the court

to make a probable cause determination before issuing the

warrant.

In this case, the government has not included any

factual background in the warrant request (doc. no. 1-3).

To

determine whether probable cause exists, the court has reviewed
the factual assertions in the verified complaint (doc. no. 1).
The complaint states that, over a year ago, an unnamed
federal law enforcement agency, during an investigation,
discovered the following:

(1) unknown suspects (2) claiming to

represent two unnamed foreign companies (3) recruited at least
six unnamed United States citizens (“victims”) for a work-athome job opportunity (4) in which victims paid for laptop
computers with their personal credit cards, (5) shipped the
computers to unidentified individuals in the Republic of
Moldova, and (6) received “a deposit credited to their accounts”
(7) which deposit was “reversed due to an unauthorized
transaction.”
There are no facts in the record that inform the court how
the government came into possession of any of the factual
information in the verified complaint or the reliability of the
government’s sources for such information.

Further, the

government has failed to include facts sufficient to infer that
the “unauthorized transaction” (a deposit credited to the
victims’ accounts which was later reversed) is tied to the
fraud.

By way of example, there is no timeline of events and

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there is no specificity regarding the nature of the accounts at
issue, how/why the bank or other creditor that issued the credit
later reversed the transaction, or how the victims received
notice of the credit revocation.
To be clear, the court could make inferential assumptions
to find probable cause that the laptops are tainted by wire or
mail fraud, but the court believes the better course is for the
government to provide more specificity in the verified complaint
or in a supplemental affidavit to the warrant request.
Accordingly, the court takes the summons and warrant in rem
(doc. no. 1-3) under advisement and gives the government until
December 3, 2012, to file supplemental documentation that
contains more specificity.

If the government does not file any

further documentation by that date, the court may recommend that
the matter be dismissed without prejudice.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
November 19, 2012
cc:

Robert J. Rabuck, Esq.

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