United States of America v. $10,055.00 in U.S. Currency

Filing 17

Memorandum Opinion and Order: Jon A. Herring's Rule 41(g) motion for return of $10,055.00 in U.S. Currency is denied. (Doc. No. 11 ). The Court's denial of the 41(g) motion for equitable relief with respect to the Currency is in no way a ruling on the merits of Herring's claim to the Currency in the instant civil in rem forfeiture action. A case management plan will be separately published. Judge Sara Lioi on 1/9/2018. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,
PLAINTIFF,
vs.

$10,055.00 in U.S. CURRENCY,
DEFENDANT,
and
JON A. HERRING, JR.,
CLAIMANT.

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CASE NO. 5:17-cv-78
JUDGE SARA LIOI
MEMORANDUM OPINION AND
ORDER

This matter is before the Court on the motion of claimant Jon A. Herring, Jr.
(“Herring”) for the return of defendant $10,055.00 in U.S. Currency (“Currency”). (Doc.
No. 11 (Mot.”).) Plaintiff United States of America (“USA”) opposed the motion. (Doc.
No. 13 (“Opp’n”).) For the reasons that follow, the motion is denied.
A. Fed. R. Crim. P. 41(g)
Herring’s motion for return of the Currency is brought Pursuant to Federal Rule
of Criminal Procedure 41(g). Under Rule 41(g) Motion to Return Property,
[a] person aggrieved by an unlawful search and seizure of property or by
the deprivation of property may move for the property's return. The
motion must be filed in the district where the property was seized. The
court must receive evidence on any factual issue necessary to decide the
motion. If it grants the motion, the court must return the property to the
movant, but may impose reasonable conditions to protect access to the
property and its use in later proceedings.

Herring acknowledges that “[a] FRCP 41(g) motion is properly denied if . . . the
seized property . . . [is] subjuect [sic] to forfeiture.” (Mot. at 77, citing United States v.
Hubbard, 650 F.2d 293, 303 (D.C. Cir. 1980).) In support of the motion, Herring asserts
that “[n]o civil forfeiture has been filed by the government. Therefore, this Honorable
Court is in full authority to return the requested property.” (Id., citing Millers Cove
Energy Co., Inc. v. Moore, 128 F.3d 449 (6th Cir. 1997).) In opposition, USA argues that
the equitable remedy Herring seeks in his Rule 41(g) motion is not available because he
has pursued the legal remedies available to him under 18 U.S.C. § 983(a)(2) and (a)(4),
and the instant in rem civil forfeiture action affords him an adequate remedy at law with
respect to his claim to the Currency.
B. Analysis
“Rule 41(g) provides an equitable remedy that is not available where there an
adequate remedy at law.” United States v. Rodgers, Misc. Case No. 14-51456, Crim.
Case No. 12-20372, 2015 WL 136678, at *1 (E.D. Mich. Jan. 9, 2015) (citing Brown v.
United States, 692 F.3d 550, 552-53 (6th Cir. 2012)). Herring’s statement in the motion
that no civil forfeiture action has been filed by the government is patently incorrect—the
instant action is a civil in rem forfeiture action. (See Doc. No. 1 (Complaint [“Compl.”]).)
USA filed the instant action alleging that the Currency is subject to forfeiture
pursuant to 21 U.S.C. § 881(a)(6), and notified Herring of the forfeiture action. (Id. ¶ 5;
Doc. No. 1-5 (“Notice”).) “After the government initiates forfeiture proceedings and
notifies a claimant of the proceedings, a claimant may no longer use Rule 41(e) [now
Rule 41(g)], but instead must submit to the statutory procedures governing civil forfeiture

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proceedings.” United States v. One 1974 Learjet 24D, Serial No. 24D-290, Mexican
Registration XA-RMF, 191 F.3d 668, 673 (6th Cir. 1999) (citing Shaw v. United States,
891 F.2d 602, 603-04 (6th Cir. 1989)).
Here, Herring filed a claim to the Currency (Doc. No. 6), and answered the
complaint contesting USA’s forfeiture pursuant to § 881(a)(6). (Doc. No. 7.) The instant
civil action provides Herring with an adequate remedy at law for contesting the forfeiture.
See $8,050.00 in U.S. Currency v. United States, 307 F. Supp. 2d 922, 926-27 (N.D. Ohio
2004) (citing Shaw); Le v. United States, No. 1:14-CV-600-WKW, 2014 WL 4472607, at
*1 (M.D. Ala. Sept. 11, 2014) (adequate remedy at law available through the Civil Asset
Forfeiture Act of 2000, 18 U.S.C. § 983, requires dismissal of Rule 41(g) petition) (citing
$8,050.00 in U.S. Currency, 307 F. Supp. 2d at 927). Thus, Herring’s Rule 41(g) motion
seeking an equitable remedy for return of the Currency is denied.
C. Conclusion
For all of the foregoing reasons, Herring’s Rule 41(g) motion is denied. The
Court’s denial of the 41(g) motion for equitable relief with respect to the Currency is in
no way a ruling on the merits of Herring’s claim to the Currency in the instant civil in
rem forfeiture action. A case management plan will be separately published.
IT IS SO ORDERED.

Dated: January 9, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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