United States of America v. $7,679.00 United States Currency
REPORT AND RECOMMENDATIONS RE:(62 in 1:13-cv-00727-RJA-HBS, 57 in 1:13-cv-01057-RJA-HBS) MOTION for judgment filed by Andrew D. Fitch; (71 in 1:13-cv-00727-RJA-HBS) MOTION to Dismiss filed by Andrew D. Fitch; (70 in 1:13-cv-00727-RJA -HBS) MOTION to Dismiss filed by Andrew D. Fitch; (62 in 1:13-cv-01057-RJA-HBS) MOTION to Dismiss filed by Andrew D. Fitch; (64 in 1:13-cv-00727-RJA-HBS) MOTION for judgment filed by Andrew D. Fitch; and (61 in 1:13-cv-01057-RJA-H BS) MOTION to Dismiss filed by Andrew D. Fitch.Objections due per 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72.Signed by Hon. Hugh B. Scott on 2/22/2017. Associated Cases: 1:13-cv-00727-RJA-HBS, 1:13-cv-01057-RJA-HBS(Copy of this Report and Recommendation mailed by first-class mail to: Andrew D. Fitch, 9276 Ridge Road, Middleport, NY 14105.) (GAI) (Additional attachment(s) added on 2/22/2017: # 1 Appendix Flyer) (GAI).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
United States of America,
Report and Recommendation
$7,679.00 United States Currency,
United States of America,
Report and Recommendation
$15,104.00 United States Currency
and One Blue 2011 Ford F150 XLT,
The Hon. Richard J. Arcara has referred both Case No. 13-CV-727 (the “First Case”) and
Case No. 13-CV-1057 (the “Second Case”) to this Court under 28 U.S.C. § 636(b). In each case,
the Government has filed a complaint for civil forfeiture and has argued that the in rem defendants
facilitated drug trafficking and are proceeds of drug trafficking. To that end, the Government has
submitted evidence across both cases including the arrest and guilty plea of pro se claimant Andrew
Fitch (“Fitch”) for marijuana possession; the large amounts of currency and their location in
suspicious places; a small quantity of marijuana in the defendant vehicle at the time of its seizure,
confirmed by lab reports; the discovery of small amounts of marijuana and other psychoactive
controlled substances in Fitch’s apartment during execution of a 2013 local search warrant; and
Fitch’s alleged inability to document how he acquired the two sets of currency, whether by general
income or specific legitimate transactions.
The cases currently are on the cusp of either final judgment or trial. On November 24,
2015, the Court recommended denying Fitch’s motions to dismiss. (First Case Dkt. No. 44,
Second Case Dkt. No. 41.) Judge Arcara adopted the recommendations on January 27, 2016.
(First Case Dkt. No. 50, Second Case Dkt. No. 47.) On March 31, 2016, the Court recommended
denying the Government’s motions for summary judgment and sending the cases to trial. (First
Case Dkt. No. 61, Second Case Dkt. No. 56.) Judge Arcara has held those recommendations, and
the Government’s objections, in abeyance until two newer forfeiture cases involving Fitch reach
the same point. (First Case Dkt. No. 68, Second Case Dkt. No. 60.) In the newer forfeiture cases,
the Court has recommended denying several motions to dismiss that Fitch filed. (Case No. 16CV-245, Dkt. No. 33; Case No. 16-CV-318, Dkt. No. 23.) Along the way, the Court has weighed
in on a number of arguments that Fitch has tried to make in his favor, including arguments
pertaining to the absence of federal criminal charges against him; the possibility of tracing at least
some of the defendant currency to legitimate sources of income; and more tangential arguments
such as prior relationships with attorneys that soured.
Since the Court issued the Reports and Recommendations that are pending across all four
cases, Fitch has filed a flurry of new motions in the First and Second Cases. The new motions
rehash arguments that already were before the Court when the Reports and Recommendations
issued. Here is a summary of the arguments that Fitch has repeated in his newest motions, which
the Court has deemed submitted on papers under Rule 78(b) of the Federal Rules of Civil
“Counter Motion for Judgment” (First Case Dkt. No. 62; Second Case Dkt. No. 57): In this
motion, Fitch again complains about an attorney whom he had retained for unrelated matters in
state court. Fitch repeats that he never faced federal criminal charges for the drug activity alleged
in these civil forfeiture cases. Fitch makes references to legitimate sources of income. The Court
has reviewed Fitch’s complaints about prior attorneys before. (See, e.g., First Case Dkt. No. 60 at 1,
Second Case Dkt. No. 53 at 2.) The Court has addressed the other arguments explicitly. (See First
Case Dkt. No. 44 at 9, Dkt. No. 61 at 22; Second Case Dkt. No. 41 at 9, Dkt. No. 56 at 22.) For
the sake of judicial economy, the Court recommends denying this motion as duplicative of
motions or arguments already addressed in the pending Reports and Recommendations.
“Motion for Judgment” (First Case Dkt. No. 64): In this motion, Fitch reiterates his belief that
forfeiture in his cases would constitute an Eighth Amendment violation. Fitch makes reference to
the prevalence of trace amounts of drugs on United States currency. Fitch also repeats his view
that his evidence of legitimate income would lead any reasonable jury to find in his favor. The
Court already has recommended a jury trial in part to address any concerns about proportionality
and the Eighth Amendment. (See First Case Dkt. No. 61 at 18; Second Case Dkt. No. 56 at 18.)
The Court twice has deferred to Judge Arcara as to the use of a dog sniff to link the defendant
currency to drug activity. (See First Case Dkt. No. 44 at 8 n.3, Dkt. No. 61 at 23 n.4; Second Case
Dkt. No. 41 at 8 n.3, Dkt. No. 56 at 23 n.4.) Finally, the Court already has recommended that
questions of fact, credibility, and weight of the evidence should preclude summary judgment for
either side. (See First Case Dkt. No. 61 at 19–23; Second Case Dkt. No. 56 at 19–23.) Again for
the sake of judicial economy, the Court sees no reason to repeat its analysis of previously raised
issues; Fitch simply will have to wait for final disposition of the Reports and Recommendations
from Judge Arcara. The Court thus recommends denying this motion as duplicative of motions or
arguments already addressed in the pending Reports and Recommendations.
Motion to Dismiss Forfeiture (First Case Dkt. No. 70; Second Case Dkt. No. 61): The gist of this
motion is that Fitch once again complains that missteps by a prior attorney led to an illegal search
and seizure in May 2013 and November 2015. Fitch seeks dismissal of all four civil forfeiture cases
on this basis. The Court already has addressed why none of the four civil forfeiture cases should
be dismissed. Whatever relationship Fitch had with his attorneys for matters in state court in itself
has no bearing on the issues here. The Court accordingly recommends denying this motion.
“Motion to Dismiss 1” (First Case Dkt. No. 71; Second Case Dkt. No. 62): On August 1, 2016,
Fitch filed yet another motion to dismiss the First and Second Cases. Fitch once more complains
about his prior attorney and then asks for summary judgment in his favor. Dismissal of the First
and Second Cases already has been addressed and already is part of the record. As noted above
and explained in the Reports and Recommendations, this Court does not believe that summary
judgment is appropriate for either side, but Judge Arcara will have the final say. At this point, and
without offering legal advice, Fitch might be better served contacting the Pro Se Assistance
Program for help focusing on trial preparation, in the event that Judge Arcara adopts the pending
Reports and Recommendations. A copy of an informational flyer for the Pro Se Assistance
Program is attached to this Report and Recommendation. The Court recommends denying this
motion as duplicative of analysis and recommendations already in the docket.
For all of the foregoing reasons, the Court respectfully recommends denying Fitch’s
pending motions to dismiss or for judgment in the above-captioned cases. (First Case Dkt. Nos.
62, 64, 70, 71; Second Case Dkt. Nos. 57, 61, 62.)
A copy of this Report and Recommendation will be sent, on the date below, to counsel for
the Government by electronic filing on the date below; the Court will mail on the date below a
hard copy of this Report and Recommendation to Fitch, via first-class mail. Any objections to this
Report and Recommendation must be electronically filed with the Clerk of the Court within 14
days. See 28 U.S.C. § 636(b)(1); FRCP 72. “As a rule, a party’s failure to object to any purported
error or omission in a magistrate judge’s report waives further judicial review of the point.” Cephas
v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (citations omitted).
__/s Hugh B. Scott______
HONORABLE HUGH B. SCOTT
UNITED STATES MAGISTRATE JUDGE
DATED: February 22, 2017
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