United States of America v. $31,448.00 in U. S. Currency et al

Filing 36

ORDER granting 29 Motion for Summary Judgment. Signed by District Judge James C. Dever III on 11/30/2020. (Sellers, N.)

IN TIIE UNITED STATES DISTRICT COURT
FOR TIIE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-177-D

UNITED STATES OF AMERICA,
Plaintiff,

v.

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$31,448.00 IN U.S. CURRENCY,
$23,412.00 IN U.S. CURRENCY, and
$88,222.00 IN U.S. CURRENCY,
Defendants.

ORDER

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)
)
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)

On April 14, 2016, the United States (''United States" or "government") filed a complaint

for forfeiture in rem of $143,082.00 against Andrew Hargett, Jr. ("Hargett" or "defendant'') [D.E.
1]. On March 16, 2017, the court stayed the case until the conclusion of criminal proceedings
against Hargett [D.E. 27]. On August 21, 2018, a jury convicted Hargett of possession with intent

to distribute 500 grams or more of cocaine, a quantity of cocaine, and cocaine base; possession of
a :firearm in furtherance ofa drug trafficking crime; and possession ofa :firearm by a convicted felon.
See Jury Verdict, United States v. Hargett, No. 5:15-CR-374-D-l, [D.E. 145] (E.D.N.C. Aug. 21,
2018). On March 11, 2020, Hargett's conviction became final. See Mandate, United States v.
Hargett, No. 5:15-CR-374-D-1, [D.E. 190] (4th Cir. Mar. 11, 2020).
On May 15, 2020, the United States moved for summary judgment [D.E. 29] and filed a

memorandum oflaw [D.E. 30] and statement ofmaterial facts in support [D.E. 31 ]. See Fed. R. Civ.
P. 56; E.D.N.C. Civ. R. 7.2, 56.l(a)(l). On June 8, 2020, the ClerkofCourtfortheEastem.District
of North Carolina sent a letter to Hargett informing him of his right to respond to the motion for
summary judgment, of the timeline for his response, and the Federal Rules of Civil Procedure and

Local Civil Rules with which his response must comply [D.E. 35]. Hargett did not respond. As
explained below, the court grants the United States's motion for l'-!ummary judgment

Case 5:16-cv-00177-D Document 36 Filed 11/30/20 Page 1 of 5

I.

Summary judgment is appropriate when, after reviewing the record as a whole, the court
determines that no genuine issue of material fact exists and the moving party is entitled to judgment
as a matter oflaw. See Fed. R. Civ. P. 56(a); Scott v. Harris, 550 U.S. 372,378 (2007); Anderson
v. Libetfy Lobby, Inc., 477 U.S. 242, 247--48 (1986). The party seeking immmary judgment must
· initially demonstrate the absence of a genuine issue of material fact or the absence of evidence to
support the nonmoving party's case. See Celotex Cor,p. v. Catrett, 477 U.S. 317,325 (1986). Once
the moving party has met its burden, the nonmoving party may not rest on the allegations or denials
in its pleading, see Anderson, 477 U.S. at 248--49, but ''must come forward with specific facts
showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Cor,p.,
475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court reviewing a motion for
summary judgment should determine whether a genuine issue of material fact exists for trial. See
Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence and the
inferences drawn therefrom in the light most favorable to the nonmoving party. See Harris, 550 U.S.
at 378.
A genuine issue ofmaterial fact exists ifthere is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. See Anderson, 477 U.S. at 249. "The mere
existence of a scintilla of evidence in support ofplaintiff's position [is] insufficient. ..." Id. at 252;
see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) ("The nonmoving party, however, cannot
create a genuine issue of material fact through mere speculation or the building of one inference
upon another."). Only factual disputes that affect the outcome under substantive law properly
preclude !il.ummary judgment. See Anderson, 477 U.S. at 248.
Under Local Civil Rule 56.1, a party opposing a motion for summary judgment shall submit
"a separate statement including a response to each numbered paragraph in the moving party's
statement [of material facts]." E.D.N.C. Civ. R. 56.l(a)(2). "Each numbered paragraph in the
2

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moving party's statement of material facts will be deemed admitted for purposes of the motion
unless it is specifically controverted by a correspondingly numbered paragraph in the opposing
statement." Id. "Each statement by the movant or opponent ... must be followed by citation to
evidence that would be admissible, as required by Federal Rule of Civil Procedure 56(c)." E.D.N.C.
Civ. R. 56.1 (a)(4). Under Rule 56(c), a party disputing a material fact must support its position by
"citing to particular parts ofmaterials in the record, including depositions, documents, electronically
..

stored information, affidavits or declarations, stipulations (including those made for purposes ofthe
motion only), admissions, interrogatory answers, or other materials" or by "showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l). Merely
responding that a party "disputes" a material fact is insufficient under Rule 56 and Local Rule 56.1.
See Howard v. Coll. of the Albermarle, 262 F. Supp. 3d 322, 329 n.1 (E.D.N.C. 2017), aff'd, 697
F. App'x 257 (per curiam) (unpublished).
Under 21 U.S.C. § 88l(a)(6), money and other things of value ''furnished or intended to be
furnished by any person in exchange for a controlled substance" and "all proceeds traceable to a
[controlled substance] exchange" are "subject to forfeiture to the United States." 21 U.S.C. §
881(a)(6); see UnitedStatesv. $147.900.00in U.S. Currency. 450F.App'x261, 263 (4th Cir. 2011)
(per curiam) (unpublished). The government must demonstrate by a preponderance of the evidence
that the defendant property is subject to forfeiture, either as proceeds of an illegal drug transaction
or as property used to facilitate an illegal drug transaction. See $147,900.00 in U.S. Currency, 450
F. App'x at 263; 18 U.S.C. § 983(c); 21 U.S.C. § 881(a)(6). The government need not link the
defendant property to a specific drug transaction, but may instead meet its burden with circumstantial
evidence linking the property to drug trafficking generally. See United States v. $11,500.00 in U.S.
Currency, 710 F.3d 1006, 1013 (9th Cir. 2013); $147,900.00 in U.S. Currency, 450 F. App'x at264;
United States v. Herder, 594 F.3d 352, 364 (4th Cir. 2010); United States v. $242,484.00, 389 F.3d
3

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1149, 1161 (11th Cir. 2004) (en bane). In analyzing whether the government has met this burden,
the court examines the totality of the circumstances. See United States v. Thom.as. 913 F.2d 1111,
1115 (4th Cir. 1990).
Numerous civil-forfeiture cases under section 881(a)(6) involve a large sum of currency
seized by law enforcement. In such cases, courts have looked at several common factors when
determining forfeitability, including (1) the quantity of currency, (2) the manner in which it was
packaged or concealed, (3) false and inconsistent statements regarding the currency when questioned
by law enforcement, (4) a positive alert to the currency by a trained drug dog, and (5) the claimant's
implausible and uncorroborated story regarding the source or intended use ofthe defendant currency.
See, e.g.• United States v. $252,300.00 in U.S. Currency, 484 F.3d 1271, 1274--75 (10th Cir. 2007);
United States v. $124,700 in U.S. Currency. 458 F.3d 822, 826 (8th Cir. 2006); United States v.
$63,289.00 in U.S. Currency. No. 3:13-CV-00281-FDW-DCK, 2014 WL 2968555, at *5--6
(W.D.N.C. July 1, 2014) (unpublished); United States v. $50,720.00 in U.S. Currency. 589 F. Supp.
2d 582, 583-84 (E.D.N.C. 2008); United States v. $433,980 in U.S. Currency. 473 F. Supp. 2d 685,
690--92 (E.D.N.C. 2007).
AB for the government's motion for summary judgment, these factors along with the

government's statement ofmaterial facts support forfeiture ofHargett' s property. See, e.g., Thomas,
913 F.2d at 1115-17. The United States complied with Local Civil Rule 56.l(a)(2) by submitting
a statement of material facts along with its motion for summary judgment. See Local Civ. R.
56.l(a)(l); [D.E. 31]. Despite the Clerk of Court's letter notifying Hargett of the deadline, Hargett
did not file a response to the motion for !ilummary judgment and did not file a statement of material
facts.

AB such, under Local Civil Rule 56.l(a)(2), "[e]ach numbered paragraph in the

[government's] statement of material facts will be deemed admitted for purposes of the motion."
E.D.N.C. Civ. R. 56. l(a)(2); see Shinabeny v. Town of Murfreesboro, No. 2: 17-CV-7-D, 2019 WL
5446712, at *1 n.1 (E.D.N.C. Oct. 23, 2019) (unpublished); Howard, 262 F. Supp. 3d at 329 n.1.
4
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The government's statement of material facts establishes by a preponderance of the evidence that
Hargett's property is subject to forfeiture as proceeds ofdrug trafficking or, alternatively, as property
. used to facilitate drug trafficking.. See [D.E. 31].
II.

In sum, the court GRANTS the government's motion for summary judgment [D.E. 29].
SO ORDERED. This

Jo

day ofNovember 2020.

J

SC.DEVERID

United States District Judge

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