UNITED STATES OF AMERICA v. $20,000.00 in U. S. Currency

Filing 25

ORDER GRANTING 18 Plaintiff's Motion for Summary Judgment; DENYING AS MOOT 22 Motion for Entry of Default; and DENYING AS MOOT 23 Motion for Default Judgment. The claim filed by the claimant is dismissed, and the defendant currency is forfeited. Signed by US District Judge Terrence W. Boyle on 6/18/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:13-CV-162-BO

UNITED STATES OF AMERICA,
Plaintiff,

v.
$20,000 IN U.S. CURRENCY,
Defendant.

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ORDER

This matter is before the Court on plaintiffs motion for summary judgment [DE 18]. The
motion is now ripe for adjudication. For the reasons stated herein, the motion for summary
judgment is GRANTED.

BACKGROUND
This is a civil forfeiture case in which the United States seeks forfeiture of $20,000 in
U.S. Currency, alleged to be used or intended to be used in exchange for controlled substances or
represents proceeds of trafficking in controlled substances or was used or intended to be used to
facilitate a violation of Title II of the Controlled Substances Act, 21 U.S.C. §§ 801, et seq. On
March 5, 2014, the United States served on claimant a first set of requests for admission.
Claimant has failed to make any response or objection to the requests even in the face of an order
from this Court compelling claimant to respond to the special interrogatories of the United States
or else have default judgment entered. [DE 20]. Because of claimant's failure to respond, the
matters addressed by the requests are therefore deemed admitted pursuant to FED. R. Clv. P.
36(b).

DISCUSSION

A motion for summary judgment cannot be granted unless there are no genuine issues of
material fact for trial. FED. R. Crv. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,322-23 (1986).
The moving party must demonstrate the lack of genuine issue of fact for trial and if that burden is
met, the party opposing the motion must "go beyond the pleadings" and come forward with
evidence of a genuine factual dispute. Celotex, 477 U.S. at 324. The Court must view the facts
and the inferences drawn from the facts in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

In a civil forfeiture action, the United States bears the burden of provmg by a
preponderance of the evidence that the defendant property is subject to forfeiture, either as
proceeds of an illegal drug transaction, or as intended for use in an illegal drug transaction. See
18 U.S.C. § 983(c)(l). If, as is the case here, the United States' theory of forfeiture is that the
property was used to commit or facilitate the commission of a drug offense, or was involved in
the commission of a drug offense, the United States must show that there is a "substantial
connection" between the defendant property and a drug offense. See 18 U.S.C. § 983(c)(3). A
substantial connection is one that is more than coincidental or fortuitous. See e.g. United States v.
Beechcraft Aircraft, 777 F.2d 947, 953 (4th Cir. 1985); United States v. 475 Cottage Drive, 433

F. Supp. 2d 647, 654-55 (M.D.N.C. 2006).
Here the facts deemed admitted to by claimant establish by preponderance of the
evidence that such a "substantial connection" exists. The currency was used or intended to be
used in exchange for controlled substances or was used or intended to be used to facilitate a
violation of Title II of the Controlled Substances Act. During his encounter with law
enforcement on February 23, 2013, law enforcement smelled the odor of marijuana coming from

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the claimant's person and claimant was not on his was to see his real estate attorney to pay him
for a real estate closing. This is contrary to the explanation given to the police on that night.
A police dog alerted to the presence of narcotics on the defendant currency, which is a
fact entitled to probative weight. See United States v. $50,700 in US. Currency, 589 F. Supp. 2d
582, 584 (E.D.N.C. 2008). Canine alerts are reliable and "detectable odor ordinarily remains on
suspect currency for only a brief period of time following contact with narcotics." !d. (quotation
omitted).
This evidence, coupled with other circumstantial evidence before the Court prove by a
preponderance of the evidence that defendant currency is subject to forfeiture. There is no
genuine issue of any material fact concerning this and, accordingly, summary judgment is
granted in favor of the plaintiff. The claim filed by claimant is dismissed and the defendant
currency is forfeited pursuant to 21 U.S.C. § 881(a)(6).
CONCLUSION

For the foregoing reasons, plaintiffs motion for summary judgment is GRANTED. The
claim filed by claimant is DISMISSED and the defendant currency is FORFEITED pursuant to
21 U.S.C. § 881(a)(6). Further, plaintiffs motions for entry of default [DE 22] and motion for
default judgment [DE 23] are DENIED AS MOOT. The Clerk is DIRECTED enter judgment
accordingly and to close the file.
SO ORDERED.
This the

_j$_ day of June, 2014.
JUDGE

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