United States of America v. $220,200.00 (Two Hundred Twenty Thousand Two Hundred Dollars) in United States Currency

Filing 90

ORDER granting 69 Motion in Limine; denying 72 Motion to Dismiss for Failure to State a Claim; denying 75 Motion for Hearing; denying 77 Motion for Leave to File an Amended Pleading. Signed by Magistrate Judge J. Gregory Wehrman on 4/17/13. (sct1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CIVIL ACTION NO. 10-404-JGW
UNITED STATES OF AMERICA

PLAINTIFF

v.
$220,200 IN UNITED STATES CURRENCY

DEFENDANT

and
SHARON WRIGHT

CLAIMANT
ORDER

Before the Court are several motions: the government’s motion in limine (Doc. 69), to
which claimant filed a response (Doc. 82); claimant’s motion to dismiss (Doc. 72), with
plaintiff’s response (Doc. 79); and claimant’s motion for leave to file an amended pleading (Doc.
77) and petition for a hearing to determine whether forfeiture is constitutionally excessive (Doc.
75), to which plaintiff filed a response (Doc. 80). With the case set for trial beginning April 18,
2013, the Court set an expedited briefing schedule (Doc. 74), and the motions are now ripe for
decision.
I. Facts and Procedural Posture
The facts of this case have been described in great depth by Judge Weber in his order
denying plaintiff’s motion for summary judgment (Doc. 58), so only a truncated version is
necessary here. In 2009, the Warren County Drug Task Force (“WCDTF”) and the DEA
conducted a drug trafficking investigation into claimant’s son, Phillip Sweet. After conducting
several controlled purchases with Sweet, the authorities performed a search of his home, finding
several pounds of marijuana, guns, drug dealing instruments, and a safe containing $152,750.00
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in cash. Based on certain connections Sweet had with claimant’s home address, the authorities
performed a lawful search of claimant’s home, which revealed a safe containing defendant
$220,200.00 in currency. Plaintiff filed suit under 28 U.S.C. § 881(a)(6), seeking forfeiture of
the defendant money as proceeds of Sweet’s drug trafficking violations or money traceable to
proceeds of such drug trafficking. Following discovery, the government moved for summary
judgment. Doc. 46. Judge Weber denied the motion, finding that claimant showed it was
objectively possible that, as claimant argues, she saved the money in the safe from legitimate
sources. Doc. 58. The parties consented to this Court’s jurisdiction (Doc. 60) and the matter
was set for trial (Doc. 61). Following the final pretrial conference (Doc. 70), the parties filed the
pending motions, which will be analyzed in turn.
II. Claimant’s Constitutional Motion and Motion to Amend
On April 9, 2013, claimant filed what she titled, “Petition of Claimant Pursuant to 18
U.S.C. § 983(g) that Forfeiture of the Defendant is Constitutionally Excessive,” (hereinafter “the
Constitutional Motion”). Doc. 75. Claimant seeks an order from this Court, following a hearing,
“that forfeiture of the Defendant currency is grossly disproportionate to the offense and that the
Court eliminate [or reduce] the forfeiture as necessary to avoid a violation of the Excessive Fines
Clause of the Eighth Amendment of the Constitution.” Id. at 7.
a. Legal Framework
1. Supplemental Rule G(8)(e)
While 18 U.S.C. § 983(g) permits a claimant to petition a court to determine whether a
forfeiture is constitutionally excessive, it is Rule G(8)(e) of the Federal Rules of Civil
Procedure’s Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions

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(“Supplemental Rules”) that determines the procedure for such mitigation petitions. See
Committee Notes to Rule G. Supplemental Rule G(8)(e) states, “[a] claimant may seek to
mitigate a forfeiture under the Excessive Fines Clause of the Eighth Amendment by motion for
summary judgment or by motion made after entry of a forfeiture judgment if: (i) the claimant has
pleaded the defense under Rule 8 [of the Federal Rules of Civil Procedure] and (ii) the parties
have had the opportunity to conduct civil discovery on the defense.”
On April 10, 2013, claimant filed a motion for leave to file an amended pleading under
Rule 15(a) or (b) of the Federal Rules of Civil Procedure, attaching a proffered second amended
answer. Doc. 77. Claimant did so in order to perfect the Constitutional Motion procedurally, as
the attached answer contained the affirmative defense of excessiveness.
2. Rule 15(a) and (b)
Under Rule 15(a), “a party may amend its pleading once as a matter of course.” Fed. R.
Civ. P. 15(a). Otherwise, “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when justice so
requires.” Id. The Sixth Circuit has held that in weighing a motion to amend,
[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the
moving party, repeated failure to cure deficiencies by previous amendments,
undue prejudice to the opposing party, and futility of amendment are all factors
which may affect the decision. Delay by itself is not sufficient reason to deny a
motion to amend. Notice and substantial prejudice to the opposing party are
critical factors in determining whether an amendment should be granted.
Wade v. Knoxville Utilities Bd., 259 F.3d 452, 458-59 (6th Cir. 2001). Nonetheless, “[w]hen
amendment is sought at a late stage in the litigation, there is an increased burden to show
justification for failing to move earlier.” Id. at 459 (citation omitted). “Although Rule 15(a)
indicates that leave to amend shall be freely granted, a party must act with due diligence if it
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intends to take advantage of the Rule’s liberality.” United States v. Midwest Suspension and
Brake, 49 F.3d 1197, 1202 (6th Cir. 1995). This Court has wide authority in this area, which is
exemplified by the abuse of discretion standard under which the Sixth Circuit reviews such
decisions. See Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000).
Claimant also raises Rule 15(b)(2) as permitting amendment. Rule 15(b)(2) states,
“[w]hen an issue not raised by the pleadings is tried by the parties’ express or implied consent, it
must be treated in all respects as if raised in the pleadings. A party may move--at any time, even
after judgment--to amend the pleadings to conform them to the evidence and to raise an
unpleaded issue. But failure to amend does not affect the result of the trial of that issue.”
b. Analysis
To support her request for amendment under Rule 15(a), claimant invokes several of the
stated factors. She asserts that the government will not be prejudiced by amendment because no
additional discovery would be required; that no undue delay is present because the constitutional
issue precipitating the amendment will not be addressed until after trial; and that amendment
would not be futile because claimant believes she will prevail on the merits of the Constitutional
Motion. Doc. 77 at 3. Alternatively, claimant argues that Rule 15(b) applies, because plaintiff
will try to connect defendant currency to claimant’s son’s drug trafficking, which will lead to
claimant’s argument that the attempted forfeiture is disproportionate to that offense, which
claimant maintains amounts to consent. Id. at 4.
In addition to arguing that its motion for leave should be granted, claimant asks that its
Constitutional Motion be held in abeyance until a judgment forfeiting the money is entered, if it
is. Id. at 4. In a footnote to her motion for leave to amend, claimant states that her counsel “has

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spoken with the U.S. Attorney’s Office and the parties agree that Claimant’s Petition filed April
9, 2013 should be held in abeyance under the Supplemental Rules.” Id.
The government’s response tells a somewhat different story. Doc. 80. Plaintiff claims
that it spoke with claimant’s counsel to inform them that the Constitutional Motion is premature
and informally attempt to procure her voluntarily withdrawal of the motion. Id. at 1. Rather
than agreeing that the motion should be held in abeyance, plaintiff argues that it should be
denied, for any one of three reasons, all pertaining to Supplemental Rule G(8)(e). First, plaintiff
maintains it is premature, as it was not made in a motion for summary judgment nor after entry
of a forfeiture judgment. Id. at 3. Second, plaintiff argues claimant waived the issue by failing
to plead it as an affirmative defense. Id. at 2. Plaintiff submits that claimant filed both an
original answer and an amended answer, which “provided Claimant every opportunity to plead
any and all desired affirmative defenses. Having had that opportunity, Claimant should not be
permitted to now raise an entirely new affirmative defense over two years into this litigation and
only eight days before trial.” Id. Third, plaintiff argues that the Constitutional Motion should be
denied because the government has not had the opportunity to conduct discovery on the issue of
excessiveness. Id. at 3.
Relatedly, the government also argues that claimant’s motion for leave to file an
amended pleading or answer should be denied, which would also result in denial of her
Constitutional Motion. Doc. 80 at 4. Plaintiff argues that “Claimant has not attempted to
explain why she failed to raise this defense until eight days before trial.” Id. The government
emphasizes that its stated inability to conduct discovery on this issue amounts to prejudice that
warrants denial of the motion to amend. Id. at 3.

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The Court agrees with plaintiff. First, claimant’s argument under Rule 15(b) is
unavailing. The fact that plaintiff will attempt to prove its case does not mean it has consented
to claimant presenting evidence that the forfeiture is excessive, as claimant appears to argue.
More importantly, claimant’s argument under Rule 15(a) is unpersuasive. Claimant has clearly
committed an undue delay in moving to amend its answer and raising the excessiveness issue
only eight days before trial. See Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir.
1999) (“At least one Sixth Circuit decision has held that allowing amendment after the close of
discovery creates significant prejudice, and other Circuits agree.”). Such delay is magnified
because claimant already filed an amended answer, yet failed to plead this affirmative defense at
that time. Critically, the government would be greatly prejudiced if forced to scramble to
address this issue so late in the now two-plus year proceedings. This is particularly so because
plaintiff has not had the chance to conduct discovery on this issue, which is explicitly required
by Supplemental Rule G(8)(e). As a result, claimant’s motion for leave to file an amended
answer will be denied. Because claimant has not affirmatively pleaded the defense and because
plaintiff has not had the opportunity to conduct discovery on it as required by Supplemental Rule
G(8)(e), the Petition of Claimant Pursuant to 18 U.S.C. § 983(g) that Forfeiture of the Defendant
is Constitutionally Excessive will also be denied.
III. Claimant’s Motion to Dismiss
On April 5, 2013, claimant filed a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Doc. 72. Claimant argues that the doctrine of collateral
estoppel precludes prosecution of this case. Claimant maintains that collateral estoppel applies
because the Hamilton County Prosecutors office previously litigated a civil forfeiture case in the

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Hamilton County Court of Common Pleas against the money seized at Sweet’s residence,
wherein the state court jury determined that Sweet must forfeit to the state $48,880.00 of the
$152,750.00 which the state authorities sought to seize. Id. at 6. Claimant asserts that the
elements for collateral estoppel are present: the state court case directly litigated and determined
the issue of the extent of Sweet’s drug trafficking proceeds; the Hamilton County Court of
Common Pleas is a court of competent jurisdiction; and the parties in both suits are in privity.
Id. at 7-12.
The government opposes claimant’s motion to dismiss on both procedural and
substantive grounds. Procedurally, plaintiff argues that claimant’s motion is grossly untimely
under both the Federal Rules of Civil Procedure and this Court’s Scheduling Order. Doc. 79 at
7. Rule 12(b), which claimant invokes, states, “[a] motion asserting any of these defenses must
be made before pleading if a responsive pleading is allowed.” In addition, Supplemental Rule
G(5)(b) explicitly provides that, “[a] claimant must serve and file . . . a motion under Rule 12
within 21 days after filing the claim.” Finally, Judge Weber’s scheduling order stated, “[a]ll
dispositive Pretrial Motions shall be filed by April 16, 2012.” Doc. 10 at 1.
Plaintiff filed its complaint on June 21, 2010. Doc. 1. Claimant filed her claim on
August 3, 2010 (Doc. 5), and her answer on August 23, 2010 (Doc. 7). Claimant’s motion in
April 2013 is therefore considerably late. The Court recognizes that the Hamilton County trial
upon which claimant bases her motion only concluded in late March 2013. Nonetheless,
plaintiff argues, and the Court agrees, that claimant’s chosen procedural vehicle for pursuing a
collateral estoppel defense - the 12(b)(6) motion - was untimely. Doc. 79 at 8. Therefore,

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claimant’s motion to dismiss will be denied.1
IV. Plaintiff’s Motion in Limine
On April 4, 2013, plaintiff filed a motion in limine. Doc. 69. The motion seeks an order
holding that evidence and testimony regarding a canine drug sniff of the defendant currency is
admissible. Claimant opposes the motion, arguing that the evidence should be excluded under
Rule 403 of the Federal Rules of Evidence. Doc. 82.
a. Factual Background
On January 5, 2010, following the search of claimant’s home and seizure of the
defendant currency the day before, Detective Schweitzer of the WCDTF requested that Deputy
Lewis and his canine partner, Kilo, of the Warren County Sheriff’s Department conduct a drug
sniff of the defendant currency, which was being housed at the WCDTF garage. Doc. 46-5. In a
declaration filed with plaintiff’s motion for summary judgment, Deputy Lewis explained how the
drug sniff was conducted. Id. Lewis states that he had Detective Schweitzer put the money into
two separate boxes and then place one box into a row of lockers and the other on a series of
bookshelves. Id. at ¶ 8. Lewis alleges he did not know in which locker or on which bookshelf
Schweitzer placed the boxes. Id. Lewis then brought Kilo into the garage and commanded him
to sniff narcotic odor, taking him to the area of the lockers. “I let Kilo do a ‘free sniff,’” Lewis
states, “which is where you just let the canine work at his own pace and let him go where he

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Claimant’s motion is also be denied for the substantive reasons plaintiff discusses in its
responsive brief. Doc. 79 at 8-12. Plaintiff was not a party to the state court action and claimant
has not made a showing of privity between the Federal Government and the State of Ohio. See
U.S. v. Dominguez, 359 F.3d 839, 845 (6th Cir. 2004). In addition, the money sought to be
forfeited in this case is different from that in the state case. See U.S. v. Cinemark USA, Inc., 348
F.3d 569, 583 (6th Cir. 2003). Therefore, the issue in this case was not in fact litigated in the
state case.
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wants.” Id. During the free sniff, Lewis maintains he noticed Kilo “had a head turn and slowed
as he passed a certain locker, but he kept going.” Id.
Lewis then instructed Kilo to perform a “‘detail sniff’ which is where you work the
canine slower and you direct him where you want him to sniff.” Id. at ¶ 9. Lewis used his hand
to instruct Kilo to sniff the bottom of the lockers, and as they proceeded down the row of
lockers, “Kilo stopped at a locker, [laid] down and was scratching at it. [Lewis] continued to
walk down the row of lockers, but Kilo would not leave the locker that he was at. This was a
positive indication for narcotics odor,” Lewis declares. Id. Lewis asked if it was the locker
containing the defendant currency and Schweitzer confirmed that it was. Id. Lewis then
performed the same procedure on the rows of shelving, relating that “when Kilo got to the shelf
where the other box of money was at he started scratching at the box with the money. Kilo
scratched the box and knocked it off the shelf onto the floor. This,” Lewis states, “was a positive
indication for narcotics odor.” Id. Lewis submits that Kilo made no other indications, even
though one of the lockers he passed contained various canine distractors, such as rubber balls,
tubes, toys, cat food, and a garbage bag full of shredded money used as a training aid for another
dog. Id. at ¶ 10.
Claimant asserts that during Deputy Lewis’ deposition he stated that Kilo used a
universal indicator, rather than alerting differently to different types of narcotics; that he agreed
that a person could obtain contaminated currency through a common transaction; and that he was
aware of research regarding the unreliability of dog sniffs. Doc. 82 at 2.2
b. Legal Framework

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The deposition transcript has not been submitted.
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Rule 403 states, “[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” The Court has “very broad” discretion in balancing the probative value of
evidence against the risk of unfair prejudice. U.S. v. Dietz, 577 F.3d 672, 689 (6th Cir. 2009).
Claimant asserts that the dog sniff evidence’s probative value is significantly outweighed by the
risk that it will be unfairly prejudicial.
c. Analysis
Claimant argues that the dog sniff evidence is unreliable due to widespread
contamination of currency and thus of minimal probative value, citing several cases from various
courts in support. Doc. 82 at 3. Reliability is further eroded in this specific case, claimant
asserts, because the drug canine was not trained in currency sniffs, and therefore does not
possess the sophistication to differentiate between contaminated and uncontaminated currency.
Id. at 8. Claimant also cites authority for the proposition that the reliability of a dog sniff is
diminished when it took place at a law enforcement facility where drugs are often stored, rather
than in the field. Id. at 3; U.S. v. Akins, 995 F. Supp. 797, 814 (M.D. Tenn. 1998). Finally,
claimant maintains that the “negative connotation associated with drugs will unfairly prejudice
Claimant considering Claimant has no criminal history and no narcotics, contraband or drug
paraphernalia were found within . . . her home where the currency was seized. Using inherently
unreliable evidence to establish the only physical connection between Claimant and drugs is
unfairly prejudicial.” Id. at 4.
In opposition, plaintiff cites substantial authority confirming the reliability and probative

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value of dog sniff evidence. Doc. 69 at 5-7. Plaintiff argues that claimant’s contamination
argument has been debunked and that courts, including the Sixth Circuit, regularly accept such
evidence as reliable. Id. Plaintiff also submits that Deputy Lewis and Kilo’s extensive training
and credentials bolster the reliability of the dog sniff evidence. Id. at 7.
c. Analysis
Claimant raises not insignificant objections to the dog sniff evidence. Nevertheless, the
Court disagrees with her contamination argument. Claimant has cited no binding authority for
her contention and the Court finds a growing consensus of other authorities deeming the
argument unpersuasive, including the Sixth Circuit. See U.S. v. Terry, 522 F.3d 645, fn. 5 (6th
Cir. 2008) (stating “[m]ore recent case law has called this assumption [(that the vast majority of
money is contaminated)] into question”). Moreover, that the sniff took place at the WCDTF’s
garage may cut either way, considering the distractors that were present. Finally, whether the
canine is clearly trained and certified to conduct the sniff at issue is a matter for cross
examination. In short, the probative value of the dog sniff evidence, which attempts to connect
the defendant currency to Sweet’s drug trafficking - the ultimate issue in the case - is not
outweighed by the risk that the evidence is unfairly prejudicial to claimant. Claimant’s recourse
in this instance is not through Rule 403, but by deploying her stated arguments before the jury to
undermine the dog sniff evidence. Therefore, plaintiff’s motion in limine will be granted.
V. Conclusion
For the reasons stated herein, accordingly,
IT IS ORDERED:
(1) Plaintiff’s motion in limine [Doc. 69] is GRANTED;

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(2) Claimant’s motion to dismiss [Doc. 72] is DENIED;
(3) Claimant’s motion for leave to file an amended pleading [Doc. 77] is DENIED; and
(4) Claimant’s petition for a hearing to determine whether forfeiture is constitutionally
excessive [Doc. 75] is DENIED.
This, the 17th day of April, 2013.

s/ J. Gregory Wehrman
J. Gregory Wehrman
United States Magistrate Judge

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