United States of America v. $8540.00 in United States Currency et al

Filing 10

DEFAULT JUDGMENT OF FORFEITURE in favor of Plaintiff against $8540.00 in United States Currency and Ford F-250 2000. Signed by District Judge Martin Reidinger on 8/24/11. (ejb)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv37

UNITED STATES OF AMERICA,

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Plaintiff,
vs.
$8,540.00 in UNITED STATES
CURRENCY, and
2000 FORD F-150,
VIN: 1FTNX20FXYEA07196,
Defendants.

DEFAULT JUDGMENT
OF FORFEITURE

THIS MATTER is before the Court on the Plaintiff’s Motion for Judgment
by Default, Entry of Judgment, and Final Order of Forfeiture [Doc. 9].
PROCEDURAL AND FACTUAL HISTORY
The Plaintiff initiated this action for civil in rem forfeiture on February 17,
2011. [Doc. 1]. In the Verified Complaint, it is alleged that on September 2,
2010, Deputy Sheriff Ray Herndon (Herndon) stopped the Defendant vehicle
traveling at 69 miles per hour on Interstate 40 in a 60 mile per hour speed
zone. [Id., at 2]. The vehicle had also moved left of the center lane and then
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onto the shoulder of the road. [Id.]. The vehicle, which had a Texas license
plate, was being driven at the time by its owner, Mark Damon Tanner (Tanner)
who is a Texas resident. [Id., at 2-3]. The only other person in the truck was
Janice Fisher (Fisher), a South Carolina resident. [Id.].
Herndon issued warnings to Tanner for excessive speed and lane
violations. [Id., at 3]. Herndon requested permission to search the vehicle and
Tanner consented to a search. [Id.]. He also admitted to Herndon that he had
marijuana in a suitcase located inside the truck. [Id.]. Herndon found six
grams of marijuana in the suitcase. [Id.].
In the meantime, Officer Brandon Gilmore of the Waynesville Police
Department had arrived on the scene with his trained canine which alerted to
the odor of controlled substances. [Id.]. Inside a tool box in the bed of the
truck was found a plastic bag containing $8540.00 in United States currency.
[Id.]. The officers also located a fabricated, hidden compartment inside the
auxiliary fuel tank which had the odor of marijuana. [Id., at 4].
A warrant for the arrest in rem of the property issued on March 14, 2011.
[Doc. 3]. Pursuant to Rule G(4)(b)(i) of the Supplemental Rules for Admiralty
or Maritime Claims and Asset Forfeiture Actions, the Government sent “notice
of the action and a copy of the complaint to any person who reasonably

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appears to be a potential claimant on the facts known to the government[.]”
On March 25, 2011, the personal notice of this forfeiture action sent to Tanner
at his residence by certified mail, return receipt requested was received. [Doc.
7-1].

On March 23, 2011, notice was received by Tanner’s attorney by

certified mail, return receipt requested. [Doc. 7-3].
On March 24, 2011, the personal notice of this forfeiture action sent to
Fisher at her residence by certified mail, return receipt requested was
received. [Doc. 7-2].
Notice of Civil Forfeiture was posted on an official government internet
site for 30 consecutive days beginning March 26, 2011. [Doc. 5]. No Answer
or Claim was filed. On July 21, 2011, the Clerk of Court entered default. [Doc.
8].
DISCUSSION
The Court finds that no potential claimant has timely filed an Answer or
Claim to the Defendant property despite having been served with personal
notice thereof and a copy of the Complaint. Rule G(4)(b)(i), Supplemental
Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions; David B.
Smith, Prosecution and Defense of Forfeiture Cases, §9.04[2][a] (2006)
(claimant must show an ownership or possessory interest in property);

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Mantilla v. United States, 302 F.3d 182, 185 (3 rd Cir. 2002), certiorari 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 Fed.Appx. 441 (7 th Cir. 2006) (defendant had no standing because he
abandoned any ownership).
In addition to the personal notices, the Government published the notice
of the forfeiture action on an official internet government forfeiture site for at
least 30 consecutive days.

Rule G(4)(a)(iv)(C), Supplemental Rules for

Admiralty or Maritime Claims and Asset Forfeiture Actions; Whiting v. United
States, 231 F.3d 70, 76 (1 st Cir. 2000) (“Due process requires the government
to afford an owner ‘notice and an opportunity to be heard’ before civilly
forfeiting his property, but actual receipt of notice by the defendant is not
automatically required. Rather, ... due process requires the provision of
‘notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections.’”) (citations omitted).
The Court finds that the allegations of the Complaint and the
supplemental filings are deemed admitted and, therefore, establish that the
currency at issue was the proceeds of controlled substances violations. 21

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U.S.C. §881(a)(6). The Court also finds that the vehicle at issue was used to
transport or to facilitate the transportation, sale, possession and concealment
of controlled substances. 21 U.S.C. §881(a)(4). 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 Judgment by Default, Entry of Judgment, and Final Order
of Forfeiture [Doc. 9] is hereby GRANTED.
IT IS FURTHER ORDERED that Default Judgment against the
Defendant $8,540.00 in United States Currency is hereby ENTERED in favor
fo the United States of America.
IT IS FURTHER ORDERED that Default Judgment against the
Defendant 2000 Ford F-150, VIN: 1FTNX20FXYEA07196 is hereby
ENTERED in favor of the United States of America.
Signed: August 24, 2011

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