UNITED STATES OF AMERICA v. $16,010.00 IN UNITED STATES CURRENCY

Filing 6

OPINION FILED. Signed by Judge Joseph H. Rodriguez on 7/13/11. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Plaintiff,

:
Civil Action No. 11-945

:

v.

:

OPINION

$16,010.00 IN UNITED STATES
:
CURRENCY,
Defendant in-rem. :

RODRIGUEZ, District Judge:
Presently before the Court is the United States of America’s (the “government”)
Motion for Entry of Default Judgment and Final Order of Forfeiture, pursuant to FED . R.
CIV. P. 55(b), against Defendant in rem $16,010.00 (“Defendant currency”). Would-be
known claimant Tyren B. Ali, Jr. a/k/a Tyreen B. Ali (“Ali”) has not filed a claim within
the time required by Rule G(5)(a) of the Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions, Federal Rules of Civil Procedure, and 18 U.S.C. §
983(a)(4)(A). For the reasons set forth below, the government’s motion for Entry of
Default Judgment and Final Order of Forfeiture is granted.1
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On September 10, 2010, a West Deptford, New Jersey police officer observed a
red 2000 Chrysler 300 (“Chrysler 300" or the “vehicle”) with an expired registration
about to travel south on Crown Point Road. Compl. at ¶ 7. The officer confirmed that
the registration was expired, activated his vehicle’s emergency lights, and followed the

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The Court decides the government’s motion without oral argument, pursuant to
FED . R. CIV. P. 78.

Chrysler 300 to implement a motor vehicle stop. Id. The Chrysler 300 pulled over, and
the officer obtained the driver’s license, insurance card, and expired registration. Id. at
¶¶ 7-8. The officer identified the driver as Ali, and observed that Ali’s eyes were droopy
and bloodshot. Id. at ¶ 8. The officer also smelled a potent odor of burnt marijuana
emanating from inside Ali’s vehicle. Id.
Upon the officer’s request, Ali exited the vehicle. Id. at ¶ 9. The officer
questioned him, and Ali admitted that he had been smoking marijuana earlier that
night. Id. Ali also admitted that there was a marijuana cigarette in the vehicle’s ashtray,
but denied that the vehicle contained any other narcotics. Id. The officer then searched
Ali’s person and found $2720.00 total wrapped in bundles from his right front pocket
and right rear pocket. Id. at ¶ 10. Upon questioning, Ali stated that he had obtained the
money from recently selling a vehicle. Id. Another West Deptford police officer arrived
and watched Ali while the first police officer searched the vehicle for the cause of the
marijuana odor. Id. at ¶ 11. While searching the vehicle, the officer discovered a white
package on the rear floor and several partially burnt hand-rolled cigarettes in the
vehicle’s ashtray. Id. At that time, however, the officer removed only the partially burnt
hand-rolled cigarette believed to be marijuana from the vehicle’s ashtray to secure it for
evidence. Id. The officer then asked Ali to sign a consent to search form for the vehicle,
but Ali refused, stating that he had already given the officer verbal consent to search the
vehicle. Id. at ¶ 12.
The officer arrested Ali for possession of marijuana under 50 grams, had the
Chrysler 300 impounded, and transported him to police headquarters for processing.
Id. at ¶ 13. At the headquarters, police seized the $2700.00 found on Ali’s person and

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gave him a receipt for the currency. Id. at ¶ 14. Ali was released on a state summons
pending court at a later date and time. Id.
On September 14, 2010, a Superior Court Judge in Gloucester County, New
Jersey issued a search warrant for the Chrysler 300. Id. at ¶ 15. Two West Deptford
Township police officers executed the search of the Chrysler 300 and found a package
wrapped in a white tee shirt on the rear floor of the vehicle. Id. at ¶ 16. Upon further
inspection, the police found a black plastic bag under the tee shirt, which revealed
another black plastic bag inside that contained $16,010.00 in U.S. currency, in five
bundles secured by multi-colored rubber bands. Id. Police also discovered an open
container of Hennessy Cognac, a plastic bag containing rubber bands, and a white, lined
sheet of paper that cataloged days of the week and names with assorted numbers. Id. at
¶ 17. According to the government, this last item is “consistent with a drug ledger”. Id.
The officers contacted a K-9 narcotic detection officer, and the K-9 detected the
presence of narcotics on both the interior and the exterior of the vehicle, “specifically the
front driver’s seat area”. Id. at ¶ 18. The officers continued to inspect the vehicle and
discovered a 9 mm Stoeger, Model Cougar 8000, Serial Number T642908A018622,
handgun behind the vehicle’s air conditioner controls. Id. at ¶ 19. The handgun was
loaded with fifteen rounds and had one round already in the chamber.2 Id. The officers
continued to search the vehicle and discovered a screwdriver that was presumably used
to access the handgun behind the vehicle’s dash area, a silver Nokia cellular telephone,
and a New Jersey licence plate with the number ZRP42L registered to Lenn K Grant of

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Because of the handgun’s discovery, Ali was also charged with Unlawful
Possession of a Handgun and Certain Persons not to have Weapons. Compl. at ¶ 19.
Cash bail for Ali was set at $50,000 in Gloucester County, New Jersey. Id.
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Florence, New Jersey. Id. at ¶ 20.
On September 14, 2010, the Drug Enforcement Administration (DEA)
commenced administrative forfeiture proceedings against the $16,010.00 that officers
discovered in the Chrysler 300. Id. at ¶ 22. On September 22, 2010, the $2720.00
seized from Ali’s person on September 10, 2010 was returned to the West Deptford
Township Police Department for processing. Id. at ¶ 21.
On or about November 18, 2010, West Deptford police officers stopped Ali again,
this time to execute an arrest warrant for possession of a stolen firearm from West
Deptford on September 10, 2010. Id. at ¶ 23. Ali was driving a 2007 Chevy Impala
registered in his name. Id. During that stop, officers seized $8,110.00 from Ali’s person
and from inside the Chevy Impala’s trunk. Id. at 24. Ali stated that he had obtained the
money from selling a 4-wheel All Terrain Vehicle (ATV), but could not produce or recall
any information about the sale. Id.
Also on November 18, 2010, a search warrant was authorized for Ali’s residence
at 71 Cedarwood Court, West Deptford, New Jersey. Id. at ¶ 25. The renter of the
residence, Michelle Lewis (“Lewis”), indicated that only she and Ali resided there. Id.
Police found $30,000.00 from a safe in the master bedroom closet of the residence. Id.
Upon questioning, Lewis stated that she did not own the money found in the safe and
had never seen it before. Id. Lewis also stated that the safe belonged to Ali and that she
did not know the combination to the safe. Id. Police also discovered Ali’s driver’s
license, among other identifications, in a dresser drawer found in the master bedroom.
Id.
On or about November 24, 2010, Ali’s counsel filed papers contesting the

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forfeiture of the $16,010.00 previously seized from the Chrysler 300. Id. at ¶ 26.
According to the government, intelligence suggests that Ali is a “drug set”
manager in Camden, New Jersey. Id. at ¶ 27. In addition, Ali has a criminal history that
consists of eleven prior drug-related convictions that include four felony convictions for
drug-related offenses. Id. at ¶ 28. Finally, Ali’s only reported employer was B&B
Poultry Company, Inc. in Norma, New Jersey. Id. at ¶ 29. B&B Poultry Company
reported a $155.52 total quarterly wage for the fourth quarter of 2007 for Ali, and since
that time no records have indicated a legitimate source of income for Ali. Id.
On February 18, 2011, the government filed a Verified Complaint in the United
States District Court for the District of New Jersey against the $16,010.00 in United
States currency found in the Chrysler 300 that Ali drove. Decl. of Peter W. Gaeta with
Ex. in Support of Default J. ¶ 2. On February 23, 2011, the Clerk of the Court issued a
Warrant for the Arrest In Rem of the $16,010.00, and the Drug Enforcement
Administration seized the Defendant currency, pursuant to the arrest warrant. Id. at ¶
3. On or about February 25, 2011, the government sent, via certified mail, return receipt
requested, copies of the Verified Complaint for Forfeiture, Warrant for Arrest In Rem,
and a Notice of Forfeiture to Ali’s counsel, Andre A. Norwood, Jr., Esq. Id. at ¶ 4.
Norwood received the copies on or about March 2, 2011. Id. at ¶ 5.
No claim has been filed for the Defendant currency within the time period
required by Rule G(5)(a) of the Supplemental Rules for Admiralty and Maritime Claims,
Federal Rules of Civil Procedure, and 18 U.S.C. § 983(a)(4)(A). Id. at ¶ 8. The Clerk of
the Court entered the Defendant currency’s default on May 16, 2011. Dkt. Entry No. 6.
II. JURISDICTION

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This Court possesses subject matter jurisdiction over the government’s motion
pursuant to 28 U.S.C. § 1345, because the United States is the plaintiff in this matter.
See 28 U.S.C. § 1345. This Court also possesses subject matter jurisdiction over the
government’s motion pursuant to 28 U.S.C. § 1331, because the Controlled Substances
Act, 21 U.S.C. § 881, et. seq., is a federal statute that arises under the laws of the United
States. See 28 U.S.C. § 1331.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 55 and Rule G of the Supplemental Rules for
Admiralty or Maritime and Asset Forfeiture Actions, Federal Rules of Civil Procedure,
govern a court’s decision to enter default judgment against a defendant in asset
forfeiture cases. See FED . R. CIV. P. 55; U.S.C. Admiralty and Maritime Claims R. G.
Obtaining default judgment against a defendant is a two-step process. First, the
Clerk of the Court must enter the defendant’s default after the properly served
defendant has failed to plead or otherwise defend himself. FED . R. CIV. P. 55(a). To
obtain default judgment, the government must have directly notified any known
potential claimants of the defendant currency by sending notice of the action and a copy
of the complaint to the known potential claimants. U.S.C. Admiralty and Maritime
Claims R. G(4)(b)(i). In asset forfeiture cases, the Clerk of the Court must enter default
against the defendant currency after the properly notified potential claimant has failed
to answer or file a Notice of Claim. See, e.g., U.S. v. $487, 825.00, Civil No. 05-2481,
2006 LEXIS 33219, at *6 (D.N.J. May 24, 2006) (entering default against the defendant
currency is appropriate where “no answer or motion in lieu of an answer had been
filed”). Second, the Clerk, on the plaintiff’s request, may enter default judgment against

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the defendant for the amount and costs the plaintiff requests if the plaintiff’s claim is for
a sum certain or a sum that can be made certain by computation. FED . R. CIV. P.
55(b)(1). In all other cases, the plaintiff must apply to the court for a default judgment.
FED . R. CIV. P. 55(b)(2).
The plaintiff’s unchallenged facts set forth in the complaint must establish a
legitimate cause of action before default judgment can be entered. DirecTV, Inc. v.
Decroce, 332 F.Supp.2d 715, 717 (D.N.J. 2004), rev’d on other grounds sub. nom.
DirecTV, Inc. v. Pepe, 431 F.3d 162 (3d Cir. 2005). Courts must accept the plaintiff’s
well-pleaded factual allegations as true, but need not accept the plaintiff’s factual
allegations regarding damages as true. Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d
532, 536 (D.N.J. 2008) (citing Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.
1990).
A plaintiff is not entitled to entry of default judgment against a defendant as of
right, because the entry of such judgment is left to the discretion of the district court.
Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984). The Court’s discretion
accounts for the Third Circuit’s preference that “cases be disposed of on the merits
whenever practicable.” Id. at 1181. Thus, the Court considers three criteria: (1) whether
the plaintiff would suffer prejudice if the default judgment were denied, (2) whether the
defendant has a meritorious defense, and (3) whether the defendant’s own culpable
conduct caused his delay in responding to the Complaint. See Chamberlain v.
Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).

IV. DISCUSSION

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The government is authorized to bring this action against the Defendant currency
pursuant to the Controlled Substances Act, 21 U.S.C. § 881(a)(6), which subjects to
forfeiture to the United States all moneys, negotiable instruments, securities, or other
things of value furnished or intended to be furnished by any person in exchange for a
controlled substance. 21 U.S.C. § 881(a)(6). Rule G of the Supplemental Rules for
Admiralty or Maritime Claims and Asset Forfeiture Actions, Federal Rules of Civil
Procedure, and 18 U.S.C. § 983 govern civil asset forfeiture actions in rem and therefore
govern in this action.
A. Requirements under Rule G
Pursuant to Rule G, the government must satisfy certain requirements in order to
properly bring a forfeiture action against a defendant in rem. First, the government
must file a Verified Complaint that states the grounds for subject-matter jurisdiction, in
rem jurisdiction over the defendant property, and venue. See U.S.C. Admiralty and
Maritime Claims R. G(2). The Verified Complaint must describe the property with
reasonable particularity; and, if the property is tangible, state its location when any
seizure occurred as well as the property’s location when the action was filed, if different
from where the property was seized. Id. The Verified Complaint must also identify the
statute under which the forfeiture action is brought and state sufficiently detailed facts
to support a reasonable belief that the government will be able to meet its burden of
proof at trial. Id.
Second, if the property is already in a government agency’s possession, custody,
or control, the Clerk of the Court must issue a warrant to arrest the property before the
government can seize it from its administrative agency for any judicial forfeiture

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proceedings. Id. at 3(b). Once the arrest warrant is issued, then the government may
arrest the property pursuant to the warrant. Id. at 3(c).
Finally, the government must publish notice about the action for any potential
claimants of the property that it does not know and must directly notify any potential
claimants that it does know. U.S.C. Admiralty and Maritime Claims R. G(4). For
potential claimants of the property that the government does not know, the government
must publish notice within a reasonable time after the Verified Complaint is filed, and it
can publish notice on an official internet government forfeiture site for at least thirty
consecutive days. Id. at 4(a)(iv)(C). For potential claimants of the property that the
government does know, the government must send notice of the action and a copy of the
Verified Complaint to the claimants no later than the time for filing a claim under Rule
G. Id. at (5)(a)(ii).
To make a claim for the defendant property and to avoid forfeiture of the
defendant property, potential claimants must file a Claim under penalty of perjury that
conforms to Rule G(5)(a) of the Supplemental Rules for Admiralty or Maritime Claims
and Asset Forfeiture Actions, Federal Rules of Civil Procedure, and 18 U.S.C. §
983(a)(4)(A). See U.S.C. Admiralty and Maritime Claims R. G(5)(a); 18 U.S.C. §
983(a)(4)(A).
Rule G(5)(a) requires that the potential claimant of the property file a claim in
the court where the action is pending that identifies the specific property claimed,
identifies the claimant, states the claimant’s interest in the property, be signed by the
claimant under penalty of perjury, and be served on the government’s attorney. See
U.S.C. Admiralty and Maritime Claims R. G (5)(a). Title 18 U.S.C. § 983 (a)(4)(A)

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requires that the potential claimant of the property file the claim no later than thirty
days after the date of service of the government’s Verified Complaint or no later than
thirty days after the date of final publication of notice of the filing of the Verified
Complaint. See 18 U.S.C. § 983(a)(4)(A).
On September 14, 2010, the DEA commenced administrative forfeiture
proceedings against the Defendant currency. Compl. at ¶ 22. In response, Ali,
represented through his counsel, filed papers contesting the forfeiture. Id. at ¶ 26.
However, Ali’s claim in the administrative forfeiture proceeding cannot serve as a
substitute for his claim in the present judicial forfeiture proceeding under Rule C(6),
Federal Rules of Civil Procedure, that also governs Actions in Rem. See U.S. v. $31,
852.38 in U.S. Currency, 183 Fed.Appx. 237, 240-241 (3d Cir. 2006). Therefore, in
order to make a proper claim for the Defendant currency in the present judicial
forfeiture proceeding, Ali must file a separate claim that satisfies the requirements set
forth in Rule G(5)(a). See U.S.C. Admiralty and Maritime Claims R. G(5)(a).
B. Propriety of Entry of Default Judgment
On February 18, 2011, the government filed a Verified Complaint for Forfeiture In
Rem against the Defendant currency. Dkt. Entry No. 1. The Complaint states the
grounds for subject matter jurisdiction, in rem jurisdiction over the defendant property,
and venue. Compl. at ¶¶ 3-5. It describes the property with reasonable particularity in
that it provides a breakdown of the Defendant currency3; and because the property is
tangible, states its location when it was seized. Id. at ¶ 16. The Verified Complaint also

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The currency consists of 12 $100 bills, 487 $20 bills, 339 $10 bills, 190 $5 bills,
and 230 $1 bills. Compl. at ¶ 16.
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identifies the statute under which the forfeiture action is brought and states sufficiently
detailed facts to support a reasonable belief that the government will be able to meet its
burden of proof at trial. Id. at ¶ 2; ¶¶ 16-18.
Also on February 18, 2011, the Clerk of the Court issued a warrant to arrest the
Defendant property. Dkt. Entry No. 2. Pursuant to the warrant, the government seized
the Defendant property and commenced judicial forfeiture proceedings against it. Id. at
¶ 3. Finally, the government published notice about the action for any potential
claimants whom it did not know and directly notified the potential claimant, Ali, whom
it did know. Decl. of Peter W. Gaeta with Ex. in Support of Default J. ¶¶ 4-6.
First, the government published notice of the action within a reasonable time,
eight days after the Verified Complaint was filed, and published notice on an official
internet government forfeiture website, www.forfeiture.gov, for thirty consecutive days.
See Gov. Ex. B.
Second, the government directly notified Ali, the Defendant currency’s known
potential claimant, by sending notice of the action and a copy of the Verified Complaint
to him thorough his counsel, Andre A. Norwood, on or about February 25, 2011. Decl.
of Peter W. Gaeta with Ex. in Support of Default J. ¶ 4. This notice complies with Rule
G(5)(a)(ii)(B), because the government sent it before it published notice of the forfeiture
action on www.forfeiture.gov, its official internet government forfeiture website.
Ali has not filed a claim for the Defendant currency in this matter. Although he
has filed a claim in the administrative forfeiture proceeding, that claim does not satisfy
the requirements of Rule C(6), Federal Rules of Civil Procedure. See U.S. v. $31, 852.38
in U.S. Currency, 183 Fed.Appx. 237, 240-241 (3d Cir. 2006). The Clerk of the Court

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entered Ali’s default on May 16, 2011, and the government’s Verified Complaint has
established a legitimate cause of action against the Defendant currency. See generally,
Dkt. Entry No. 6 and Compl.
The Court finds that entry of default judgment is proper, because two of the three
criteria considered when evaluating the propriety of default judgment weigh in favor of
the government. First, the government would suffer prejudice if default judgment were
denied, due to the fact that it has no other remedy against the Defendant currency.
Second, Ali has not asserted a meritorious defense, since he has failed to answer.
Finally, Ali is presumably aware of the government’s claim, since he filed a claim in the
administrative forfeiture proceeding and counsel represents him in this proceeding.
Because Ali has not answered, the Court does not know whether Ali’s own culpable
conduct caused his delay in responding to the Complaint. Thus, the Court considers two
of the three criteria for entry of default judgment and determines that entry of default
judgment is appropriate.
CONCLUSION
Based on the foregoing, the government’s Motion for Default Judgment will be
granted.
An appropriate Order will issue this date.

/s/ Joseph H. Rodriguez
HON. JOSEPH H. RODRIGUEZ,
United States District Judge
DATED: July 13, 2011

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