United States of America v. $70,932.00 United States Currency et al

Filing 33

REPORT AND RECOMMENDATIONS RE:(30 in 1:16-cv-00245-RJA-HBS, 20 in 1:16-cv-00318-RJA-HBS) MOTION to Dismiss filed by Andrew D. Fitch; and (28 in 1:16-cv-00245-RJA-HBS) MOTION to Dismiss filed by Andrew D. Fitch, (18 in 1:16-cv-00318-RJA-HB S) 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 10/24/2016. Associated Cases: 1:16-cv-00245-RJA-HBS, 1:16-cv-00318-RJA-HBS(Copy of this Entry with R&R mailed by first-class mail to: Andrew D. Fitch, 9276 Ridge Road, Middleport, NY 14105.)(GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,

REPORT AND
RECOMMENDATION
16-CV-245A

v.
$70,932.00 UNITED STATES
CURRENCY et al.,
Defendants.
UNITED STATES OF AMERICA,
Plaintiff,

REPORT AND
RECOMMENDATION
16-CV-318A

v.
THE PREMISES AND REAL PROPERTY WITH
BUILDINGS, APPURTENANCES, AND
IMPROVEMENTS AT 9276 RIDGE ROAD,
MIDDLEPORT, NEW YORK,
Defendant.

I. INTRODUCTION
The Hon. Richard J. Arcara has referred both Case No. 16-CV-245 (the
“First Case”) and Case No. 16-CV-318 (the “Second Case”) to this Court under
28 U.S.C. § 636(b). Pending before the Court is a motion by pro se claimant
Andrew Fitch (“Fitch”) to dismiss each case and to order the Government to
return the defendant assets to him. (First Case Dkt. No. 28/30, Second Case

Dkt. No. 18/20.) 1 The Court gleans a few arguments from Fitch’s papers. Fitch
contends that state law enforcement agents lacked probable cause to search his
residence in 2013 and 2015. (First Case Dkt. No. 25 at 1; Dkt. No. 28 at 1; Dkt.
No. 30 at 2.) Fitch challenges the validity of a federal seizure warrant that was
executed in 2013 for a blue 2011 Ford F150 pickup truck. (First Case Docket
No. 28 at 1; see also generally Case No. 13-CV-1057.) Fitch has made
allegations about a malicious prosecution that might have been a pretense for
one or more of the searches of his residence. (First Case Dkt. No. 30 at 2.)
Fitch also has provided some documentation suggesting that a personal injury
settlement generated at least some of the income that the Government attributes
to drug activity. The Government responds by reciting a number of facts
supporting forfeiture and by arguing that those facts are enough to defeat
dismissal in each case. To the extent necessary, the Government also adopts
the arguments that it made in Case Nos. 13-CV-727 and 13-CV-1057, which are
closely related to the 2016 cases addressed here.
The Court has deemed Fitch’s motion submitted on papers under Rule
78(b) of the Federal Rules of Civil Procedure (“FRCP”). For the reasons below,
the Court respectfully recommends denying Fitch’s motion.

1

Although Fitch has filed one motion to dismiss in each case, the motion papers in each case
are identical. Accordingly, the Court will refer to Fitch’s twin motions as a collective singular
motion.

2

II. BACKGROUND
Both cases, and the related 2013 cases, trace back to Fitch’s arrest in
Lockport, New York on February 23, 2013. That day, Fitch was the sole driver of
a blue 2011 Ford F150 pickup truck, the defendant vehicle in Case No. 13-CV1057. Lockport Police Department officers pulled Fitch over when they allegedly
observed him drive through a stop sign and turn without signaling. Officers noted
an odor of marijuana coming from Fitch and the vehicle during the ensuing
interview. The encounter ended with Fitch’s arrest and a search of both Fitch
and the vehicle. Officers found a total of $7,679.48 on Fitch’s person, including
$7,000 hidden inside the front of his pants. As for the vehicle, the search
incident to arrest yielded a small amount of marijuana. A second search
following a federal seizure warrant yielded $15,104 of currency, 4.43 ounces of
marijuana, three cellular telephones, and two cellular telephone batteries. Upon
further investigation, federal agents acquired additional information suggesting
that both sets of currency were proceeds from drug trafficking. Specifically,
agents learned that Fitch paid for the vehicle and paid off the mortgage on his
house in cash. Agents learned that Fitch had a prior arrest for marijuana
trafficking in November 2010 in Illinois, though the outcome of that arrest is not
clear from the record. Agents learned also that Fitch’s proffered explanations for
the $7,000 lump sum were false. At different times, Fitch apparently tried to tell
agents that the sum came from a legal settlement for a shoulder injury or from a
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sale of a boat. Fitch could not confirm what litigation led to the settlement and
could not provide an authentic bill of sale for any boat.
Police charged Fitch with misdemeanor criminal possession of marijuana
and two traffic violations. On July 17, 2013, Fitch took a guilty plea and was
sentenced to a conditional discharge.
While the two 2013 cases concerned the Government’s attempt to seize
the currency and the pickup truck described above, the 2016 cases addressed
here add some additional facts. Around May 2013, state law enforcement agents
appear to have executed a state search warrant for Fitch’s residence. The Court
has not seen this warrant, but the search appears to have yielded a firearm that
state law enforcement agents considered an illegal assault weapon under state
law. Around November 2015, state law enforcement agents executed two state
warrants at Fitch’s residence based on the firearm seized in May 2013. The first
state warrant was an arrest warrant for Fitch himself. State law enforcement
agents arrested Fitch outside of his residence but noted a strong order of
marijuana coming from the residence. The odor prompted state law enforcement
agents to obtain the second state warrant for a search of Fitch’s residence. The
search of Fitch’s residence allegedly yielded 21.5 pounds of marijuana, various
types of drug paraphernalia, and several cellular telephones. State law
enforcement agents wound up seizing each of the items that together constitute

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the defendant property in both of the pending 2016 cases. The Court has not
seen either state warrant issued around November 2015.
The Government commenced the pending 2016 cases by filing verified
complaints for the First Case on March 24, 2016 and for the Second Case on
April 22, 2016. In the First Case, claimant Bank of America, N.A. filed a claim on
May 27, 2016 and an answer on June 10, 2016. (First Case Dkt. Nos. 12, 15.)
In both cases, Fitch filed a claim on July 27, 2016. (First Case Dkt. No. 25;
Second Case Dkt. No. 15.) Fitch filed his pending motion to dismiss at the same
time. In support of his motion, Fitch argues that the federal seizure warrant of
2013 did not rest on probable cause and thus was improper. Fitch also uses a
sequential argument to assert that all of the state warrants concerning him were
improper: The firearm seized in 2013 was legal under state law, which meant that
the firearm could not serve as the basis for any warrants; in turn, state law
enforcement agents had no good-faith basis to arrest him in 2015 based on the
firearm, which then meant that they had no reason to be at Fitch’s residence and
to detect the marijuana odor that led to the search of the residence. In effect—
and Fitch does use this phrase in his papers—Fitch is making an extended “fruit
of the poisonous tree” argument. Finally, Fitch has attached to his papers some
documentation that seems to suggest that some kind of personal injury
settlement did in fact happen. (See First Case Dkt. No. 28 at 5–9.) The
Government opposes Fitch’s motion by noting the extensive facts that appear to
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connect Fitch and the defendant property to drug activity. The Government also
argues that Fitch’s documentation of supposedly legitimate income falls well
short of explaining the amount of currency found on him, in his vehicles, and at
his residence. To the extent that Fitch argues, as he did in the 2013 cases, that
he never faced federal charges, the Government also asserts that its decision not
to bring criminal charges against Fitch has no bearing on a civil forfeiture action.
III. DISCUSSION
Fitch has called his motion a motion to dismiss, and his situation likely
implicates Rule 12(b)(6). The general standard under Rule 12(b)(6) is well
known. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face. A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged. The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are merely consistent with
a defendant’s liability, it stops short of the line between possibility and plausibility
of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citations omitted). Courts assess Rule 12(b)(6) motions
“accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff’s favor.” Peter F. Gaito Architecture, LLC v.
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Simone Dev. Corp., 602 F.3d 57, 61 (2d Cir. 2010) (internal quotation marks and
citation omitted). “Simply stated, the question under Rule 12(b)(6) is whether the
facts supporting the claims, if established, create legally cognizable theories of
recovery.” Cole-Hoover v. Shinseki, No. 10-CV-669, 2011 WL 1793256, at *3
(W.D.N.Y. May 9, 2011) (Arcara, J.) (internal quotation marks and citation
omitted).
That the cases here are civil forfeiture cases adds one wrinkle to the
standard for dismissal. “No complaint may be dismissed on the ground that the
Government did not have adequate evidence at the time the complaint was filed
to establish the forfeitability of the property.” 18 U.S.C. § 983(a)(3)(D). “The
sufficiency of the complaint is governed by Rule G(2).” FRCP Supp. R.
G(8)(b)(ii). “The complaint must: (a) be verified; (b) state the grounds for subjectmatter jurisdiction, in rem jurisdiction over the defendant property, and venue; (c)
describe the property with reasonable particularity; (d) if the property is tangible,
state its location when any seizure occurred and—if different—its location when
the action is filed; (e) identify the statute under which the forfeiture action is
brought; and (f) state sufficiently detailed facts to support a reasonable belief that
the government will be able to meet its burden of proof at trial.” FRCP Supp. R.
G(2). “However, the Government is not required to allege in the complaint all of
the facts and evidence at its disposal. It is sufficient for the Government to
simply plead enough facts for the claimant to understand the theory of forfeiture,
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to file a responsive pleading, and to undertake an adequate investigation. The
issue is one of pleading, not proof at trial.” U.S. v. $22,173.00 in U.S. Currency,
716 F. Supp. 2d 245, 248 (S.D.N.Y. 2010) (citations omitted).
Here, the Government provided enough information in its verified
complaints to survive scrutiny under Rule G. Each complaint was verified and
contained the language necessary to establish proper jurisdiction and venue.
Through each complaint, the Government explained the chain of events that
brought Fitch to his present situation, from the original traffic stop in 2013 through
each warrant that issued. The chain of events includes the suspicious nature of
the $7,000 sum found on Fitch’s person and Fitch’s discredited explanations for
that sum. Cf. $22,173.00, 716 F. Supp. 2d at 251 (“The combination of these
allegations—a search warrant for the Target Premises, the recovery of a large
amount of cash found at the premises and in close proximity to the drugs and
drug paraphernalia, and the packaging of the cash in small denominations
consistent with drug trafficking—are sufficient to support a reasonable belief that
the Government will be able to meet its burden of proof at trial (i.e., that the
proceeds have a substantial connection to drug trafficking).”). The chain of
events also includes, among other evidence, the drugs, money, and telephones
found in Fitch’s vehicles or at his residence. Cf. U.S. v. $32,507.00 in U.S.
Currency, No. 14 CIV. 5118 CM, 2014 WL 4626005, at *2 (S.D.N.Y. Sept. 16,
2014) (“Thirty-two-thousand five-hundred seven dollars is a lot of money. In
8

particular, it is a lot of money to transport in a car trunk. Carrying large sums of
cash is not per se evidence of drug-related illegal activity, but it is suggestive of
involvement in illegal activity more generally.”) (internal quotation marks and
citations omitted). So long as the Government can meet its civil burden of proof
at trial, separate criminal charges against Fitch are not necessary. “Were this an
in personam forfeiture, [Fitch’s] argument might have some traction—an in
personam forfeiture hinges on criminal conviction. But criminal conviction of a
claimant either in state or federal court is neither a necessary nor sufficient
precondition to an in rem forfeiture.” von Hofe v. U.S., 492 F.3d 175, 190 (2d Cir.
2007) (citation omitted); U.S. v. One Parcel of Real Estate Located at 7715 Betsy
Bruce Lane Summerfield, N.C., 906 F.2d 110, 111–12 (4th Cir. 1990) (“Unlike
criminal forfeiture cases, conviction for the underlying criminal activity is not a
prerequisite for forfeiture of the property. In civil forfeiture cases, property is
subject to forfeiture even if its owner is acquitted of—or never called to defend
against—criminal charges.”) (internal quotation marks and citations omitted).
Subject to further proceedings after the close of discovery, Fitch has
preserved his affirmative defenses for trial, including defenses pertaining to
probable cause. Fitch also would appear to retain the ability to do formally what
he has suggested informally in his motion papers—file a motion to suppress use
of the defendant property as evidence, under Rule G(8)(a). Without making any
findings or taking any positions, examining possible suppression formally might
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require a review of each of the state warrants in question. Additionally, Fitch’s
documentation of a personal injury settlement might become important later
when assessing possible fact issues that require a trial. For purposes of Rule 12,
though, Fitch has not made enough of a showing to justify outright dismissal of
either of the pending 2016 cases.
Upon ultimate resolution of Fitch’s motion by Judge Arcara, Fitch will need
to answer each complaint within the time required under Rule 12(a)(4)(A).
IV. CONCLUSION
For all of the foregoing reasons, the Court respectfully recommends
denying Fitch’s motion to dismiss in each case. (First Case Dkt. No. 28/30,
Second Case Dkt. No. 18/20.)
V. OBJECTIONS
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).
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SO ORDERED.

DATED: October 24, 2016

__/s Hugh B. Scott______
__
HONORABLE HUGH B. SCOTT
UNITED STATES MAGISTRATE JUDGE

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