United States of America v. $6,357.00 in United States Currency

Filing 21

DEFAULT JUDGMENT in favor of the United States of America against $6,357.00 in United States Currency. Signed by District Judge Martin Reidinger on 12/15/11. (Pro se litigant served by US Mail.) (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv29

UNITED STATES OF AMERICA,

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Plaintiff,
vs.
$6,357.00 in UNITED STATES
CURRENCY,
Defendant.

DEFAULT JUDGMENT
OF FORFEITURE

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THIS MATTER is before the Court on the Plaintiff’s Motion for Entry of
Default Judgment by Default, Entry of Judgment, and Final Order of Forfeiture
[Doc. 20].
PROCEDURAL AND FACTUAL HISTORY
The Plaintiff initiated this action for civil in rem forfeiture on February 11,
2011. [Doc. 1]. In the Complaint, it is alleged that on August 22, 2010, deputy
sheriffs from the Transylvania County Sheriff’s Department were conducting
a random license check on Cathey’s Creek Road near its intersection with
U.S. Highway 64 in Transylvania County. [Doc. 1, at 2]. A 2001 Subaru
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Outback driven and owned by Robert Sellarole was stopped at the
checkpoint. [Id.]. Sellarole is a resident of Florida and his passenger, Jason
Hargis,1 is a resident of Asheville, North Carolina. [Id.]. When Sellarole rolled
down the driver’s side window, Deputy Sheriff Samuel Owen smelled
marijuana and performed a protective frisk of Sellarole during which he
located a pipe. [Id. at 3]. When asked to do so, Sellarole removed the pipe
and a small bag of marijuana from his pants. [Id.]. Sellarole was placed under
arrest. [Id.]. Thereafter, Deputy Sheriff Brad Woodson, a trained and certified
canine handler, allowed his canine to enter the Subaru and the dog alerted to
the front seat and center console. [Id.]. Officers found a bag of marijuana in
the center console. [Id.]. Both Sellarole and Hargis denied ownership of the
marijuana. [Id.]. In the back seat of the car was a yellow duffle bag in plain
view. [Id.]. The deputies found $6,357.00 in United States currency inside that
bag. [Id.].
The deputies removed the duffle bag and money to the Sheriff’s
Department where the money was placed inside a locker. [Id. at 4].
Thereafter, a different drug dog handled by a different handler, Deputy Bryan
Sizemore, entered the room and the dog alerted to the locker containing the

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The Complaint contains a misspelling of the name as “Hartis.” [Doc. 20-1].
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currency. [Id.]. The test was repeated a second time after the currency had
been placed in a different locker outside the presence of the handler and the
dog. [Id.]. The dog alerted again at the location of the currency. [Id.].
The Government filed the pending Complaint seeking forfeiture of the
currency as the proceeds of controlled substances violations and/or as having
been used or intended to be used in such violations. [Doc. 1 at 5]. A warrant
for the arrest of the currency issued on February 16, 2011 and the currency
was taken into custody on February 23, 2011. [Doc. 3; Doc. 4].
Pursuant to Rule G(4)(b)(i) of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions, the Government provided
“notice of the action and a copy of the complaint to any person who
reasonably appears to be a potential claimant on the facts known to the
government[.]” On February 17, 2011, the United States sent personal notice
of this forfeiture action and a copy of the Complaint to Sellarole at his
residence by certified mail, return receipt requested. [Doc. 12-1]. Sellarole
signed for the mail on February 22, 2011. [Doc. 12-1at 1].
On May 10, 2011, Sellarole filed an untimely Claim. [Doc. 6]. On August
4, 2011, the Government moved to strike the untimely Claim and for
Judgment on the Pleadings because Sellarole had never filed an Answer in

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the action. [Doc. 12].

On August 12, 2011, the Court issued Notice to

Sellarole that he should file response to the Government’s motion to strike.
[Doc. 14]. Sellarole did so on August 30, 2011. [Doc. 15]. On October 6,
2011, the Court denied the Government’s Motion to Strike without prejudice
to renewal and provided Sellarole with an additional period of time within
which to file Answer to the Complaint. [Doc. 17]. Sellarole once again failed
to answer and on October 27, 2011, the Court struck his Claim from the
record. [Doc. 18].
Pursuant to Rule G(4)(b)(i) of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions, on February 17, 2011, the
Government also sent personal notice of this forfeiture action and a copy of
the Complaint to Jason Hargis at his residence by certified mail, return receipt
requested. [Doc. 20-1]. Hargis signed for the mail on February 24, 2011.
[Doc. 20-1at 1]. Hargis has not filed either a Claim or an Answer in this
matter.
In addition to the personal notices, the Government also posted notice
of the action for thirty consecutive days on the official government internet
forfeiture site. [Doc. 5]; Rule G(4)(a)(iv)(C), Supplemental Rules for Admiralty
or Maritime Claims and Asset Forfeiture Actions.

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Although not entirely clear, it appears that prior to the initiation of this
action, the Drug Enforcement Agency (DEA) had begun an administrative
forfeiture proceeding in which either Sellarole or Hargis made an appearance.
[Doc. 20-1 at 1]. Once a DEA forfeiture proceeding is contested, it must be
referred to the United States Attorney’s office for judicial forfeiture
proceedings. 19 U.S.C. §1608; 21 C.F.R. §1316.78. The DEA thus appears
to have turned the matter over to the United States Attorney for the Western
District of North Carolina for the initiation of this judicial forfeiture proceeding.
DISCUSSION
Although either Sellarole and/or Hargis may have filed a claim in the
DEA administrative forfeiture proceeding, neither has a pending Claim or
Answer in this civil forfeiture action. Rule G(5)(a) & (b), Supplemental Rules
for Admiralty or Maritime Claims and Asset Forfeiture Actions. The “‘filing of
the earlier administrative claim is not a substitute for the claim that must be
filed with the court under Rule C(6) [and/or Rule G].’” United States v. Thirty
One Thousand Eight Hundred Fifty Two Dollars in United States Currency,
183 F. App’x. 237, 241 (3 rd Cir. 2006) (quoting David B. Smith, Prosecution
and Defense of Forfeiture Cases, §9.04[1]); United States v. $23,000, 356
F.3d 157, 166 (1 st Cir. 2004); United States v. $2,857.00, 754 F.2d 208, 214

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(7 th Cir. 1984) (“A petition for remission or mitigation of forfeiture is a petition
for administrative relief, not judicial relief.”). As a result, both Sellarole and
Hargis are in default.
Moreover, at the time of the investigation, both Sellarole and Hargis
denied any ownership interest in the marijuana. Although Sellarole later
claimed the currency was the result of work and an inheritance, his Claim has
been stricken because he failed to file an Answer.

David B. Smith,

Prosecution and Defense of Forfeiture Cases, §9.04[2][a] (2006) (claimant
must show an ownership or possessory interest in property); Mantilla v. United
States, 302 F.3d 182, 185 (3 rd Cir. 2002), cert. denied 538 U.S. 969, 123 S.Ct.
1769, 155 L.Ed.2d 527 (2003) (claimant must show colorable ownership or
possessory interest in funds); United States v. Stokes, 191 F. App’x. 441 (7 th
Cir. 2006) (defendant had no standing because he abandoned any
ownership); United States v. Real Property Described in Deeds, 962 F.Supp.
734, 737 (W.D.N.C. 1997).
Based upon the default, the factual allegations in the Complaint are
deemed admitted and thus the record establishes that the currency at issue
was the proceeds of controlled substances violations and was used or
intended to be used in the same. [Doc. 1 at 5]. Jermar, Inc. v. L.M.

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Communications, 1999 U.S. App. LEXIS 12082 at *10 (4 th Cir. 1999); 21
U.S.C. §881(a)(6). The Court also finds that the Plaintiff has established that
no potential claimant has timely filed a claim or otherwise answered and
default judgment is appropriate.
JUDGMENT
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the
Plaintiff’s Motion for Entry of Default Judgment by Default, Entry of Judgment,
and Final Order of Forfeiture [Doc. 20] is hereby GRANTED and Default
Judgment against the Defendant $6,357.00 in United States Currency is
hereby ENTERED in favor of the United States of America.
Signed: December 15, 2011

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