United States of America v. 2012 GMC Savana Van et al

Filing 37

ORDER denying 35 Motion for Interlocutory Sale and Expedited Decision. Signed by District Judge Martin Reidinger on 4/4/14. (khm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 2:13-cv-00018-MR-DLH

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
)
2012 GMC SAVANA VAN, et al.,
)
)
Defendants.
)
_______________________________ ____ )

MEMORANDUM OF
DECISION AND
ORDER

THIS MATTER is before the Court on the Government’s Motion for
Interlocutory Sale and Expedited Decision [Doc. 35].
I.

PROCEDURAL AND FACTUAL BACKGROUND
The Government instituted the current civil forfeiture action on April

22, 2013. [Doc. 1]. A warrant was issued for arrest in rem of the property
listed in the Government’s Complaint on April 24, 2013.

[Doc. 3].

In

connection with an ongoing criminal prosecution, the Government had
previously seized the subject property on December 3, 2012 and
December 5, 2012, pursuant to warrants issued by Magistrate Judge
Dennis L. Howell on November 30, 2012 and December 4, 2012. [Doc. 2

at 2]. Among the property seized by the Government were five vehicles, as
follows:
2012 GMC Savana Van, VIN 1GDS7DC40C1145561, which
was seized on December 3, 2012, from Jackie Lee Rattler at
120 Elsie Rattler Road, Cherokee, Swain County, North
Carolina, pursuant to a Warrant to Seize Property Subject to
Forfeiture issued by Magistrate Judge Dennis L. Howell on
November 30, 2012, W.D.N.C. Case No. 2:12mj17;
2012 F350 DRW Super Duty Pick Up Truck, VIN
1FD8X3HT4CEC90700, which was seized on December 3,
2012, from Jackie Lee Rattler at 120 Elsie Rattler Road,
Cherokee, Swain County, North Carolina, pursuant to a
Warrant to Seize Property Subject to Forfeiture issued by
Magistrate Judge Dennis L. Howell on December 4, 2012,
W.D.N.C. Case No. 2:12mj17;
2012 Toyota Tacoma, VIN: 5TFLU4EN0CX032827, which was
seized on December 3, 2012, from Jackie Lee Rattler at 120
Elsie Rattler Road, Cherokee, Swain County, North Carolina,
pursuant to a Warrant to Seize Property Subject to Forfeiture
issued by Magistrate Judge Dennis L. Howell on December 4,
2012, W.D.N.C. Case No. 2:12mj17;
2007
Harley
Davidson
FLHX
Motorcycle,
VIN
1HD1KB4137Y627931, which was seized on December 3,
2012, from Jackie Lee Rattler at 120 Elsie Rattler Road,
Cherokee, Swain County, North Carolina, pursuant to a
Warrant to Seize Property Subject to Forfeiture issued by
Magistrate Judge Dennis L. Howell on November 30, 2012,
W.D.N.C. Case No. 2:12mj17;
2001
Harley
Davidson
FLSTC
Motorcycle,
VIN
1HD1BJY111Y025282, which was seized on December 5,
2012, from Jackie Lee Rattler at 120 Elsie Rattler Road,
Cherokee, Swain County, North Carolina, pursuant to a
Warrant to Seize Property Subject to Forfeiture issued by
2

Magistrate Judge Dennis L. Howell on December 4, 2012,
W.D.N.C. Case No. 2:12mj17.
[Docs. 1, 35].
Jackie Lee Rattler is the owner of the subject vehicles. [Docs. 1-1,
18].

Rattler, who is a claimant in the present action, is currently

incarcerated awaiting sentencing for six counts of drug trafficking, in
violation of 21 U.S.C. § 841, and one firearms count, in violation of 21
U.S.C. § 922(g)(3), in Criminal Case No. 2:13-cr-00012-MR-DLH-1.
The present civil action is currently scheduled for trial during the
Court’s September 8, 2014 trial term. On April 1, 2014, the Government
filed the present Motion for Interlocutory Sale and Expedited Decision,
seeking an expedited ruling authorizing the sale of the aforementioned
vehicles at an upcoming auction on April 15, 2014.

[Doc. 35].

The

Government indicates in its motion that Claimant Jackie Lee Rattler does
not consent to the motion. [Id.].
II.

ANALYSIS
Rule G(7)(b) of the Supplemental Rules for Admiralty or Maritime

Claims and Asset Forfeiture Actions provides, in pertinent part, as follows:
(b) Interlocutory Sale or Delivery.
(i)

Order to Sell. On motion by a party or a
person having custody of the property,
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the court may order all or part of the
property sold if:
(A) the property is perishable or at risk
of deterioration, decay, or injury by
being detained in custody pending
the action;
(B) the expense of keeping the
property
is
excessive
or
is
disproportionate to its fair market
value;
(C) the property is subject to a
mortgage or to taxes on which the
owner is in default; or
(D)

the court finds other good cause.

Rule G(7)(b), Supp. Rules. Rule G(7)(b) gives “considerable discretion” to
the Court in deciding whether or not to allow an interlocutory sale. U.S. v.
Approximately 81,454 Cans of Baby Formula, 560 F.3d 638, 641 (7th Cir.
2009).

Thus, “the judge can range widely in deciding what factors to

consider, and what weight to give them, in making his ruling.” Id.
The Government argues that the vehicles are depreciating in value
and that the Government has already incurred and continues to incur
substantial expenses for the upkeep and storage of the vehicles. [Docs. 35
at 3, 36 at 2]. The Government, however, has provided no explanation for
why it waited a year after the filing of its civil action and approximately
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sixteen months after the vehicles were initially seized to file such a motion.
Further, the Government offers no explanation as to why it waited until
fourteen days before the auction to file its motion. The Government’s lack
of diligence is troubling, especially in light of the Claimant’s apparent
opposition to the proposed sale.
Finally, while the Government contends that an interlocutory sale will
enable it to avoid additional storage costs and depreciation, the Court finds
that any savings to the Government would be minimal, particularly in
comparison to what has already been spent in the storage and upkeep of
these vehicles and the fact that the trial of this matter is a mere five months
away.
For the foregoing reasons, the Court in the exercise of its discretion
will deny the Government’s motion.
ORDER
IT IS, THEREFORE ORDERED that the Plaintiff’s Motion for
Interlocutory Sale and Expedited Decision [Doc. 35] is DENIED.
IT IS SO ORDERED.

Signed: April 4, 2014

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