United States of America v. $1,228.89 in Genuine U.S. Currency et al

Filing 20

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 17 Plaintiff's Motion for Summary Judgment. (neh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

)
)

Plaintiff 1

)

)

v.

)

Case No. CIV-12-431-KEW

)

$1 1 228.89 IN GENUINE U.S.
CURRENCY and 2011 CHEVROLET
CAMAR0 1 VIN 2G1FK1EJXB9157757 1

)
)
)

)

Defendants.

)

OPINION AND ORDER

This matter comes before this Court on the United States'
Motion for Summary Judgment filed August 6,
#17) .

The

United

States

served

a

2013

Notice

(Docket Entry

of

Complaint

Forfeiture upon Crescent Bank of Chesapeake, Virginia,
Dunn of Durant 1

for

Chris D.

Oklahoma at his place of incarceration in the

Muskogee County Jail, and Amannda Malaby of Atoka, Oklahoma at her
place of incarceration in the Muskogee County Jail on November 27 1
2013.

The Notices, which are filed of record, indicate the dates

by which claims to the property referenced in this action must be
filed with the Court and the procedure for doing so.
Additionally

1

the

United States posted a

Notice of Civil

Forfeiture on an official government website for at least 30 days
beginning on June

5,

2013

Publication filed August

6,

as

evidenced by the

2013.

To date

1

Declaration of

no claims to the

subject property have been filed with this Court.

Further,

no

responses to the pending motion for summary judgment have been

filed.

Accordingly/

the

motion

is

unopposed

requested by the United States shall be granted.

and

the

relief

To that end, this

Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT

1) This action is an in rem proceeding for forfeiture by the United
States due to certain acts or omissions which give rise to the
28 U.S.C.

forfeiture of the subject property.

§

1355 (b) (1) (A).

This Court assumes appropriate subject matter jurisdiction over
this action pursuant to 28 U.S.C.
18 U.S.C.
2)

§

1345

1

28 U.S.C.

1355(a) and

§

981 (a) (1) (C).

§

The undersigned exercises appropriate jurisdiction over this

case since the United States has consented to a United States
Magistrate Judge on January 31 1

2013.

No further consents are

necessary for this Court to exercise its jurisdiction.
States v. Real Property Located in Fresno Co.

1

See United

135 F.3d 1312, 1316-

17 (9th Cir. 1998).
3) On May 14 1 2012 1 the Atoka County Sheriff arrested Chris Drew
Dunn ("Dunn
related
genuine

11

)

and Amannda L. Malaby ("Malaby") on traffic and drug

offenses.
U.S.

The

currency

United
and

States seized the

the

2G1FK1EJXB9157757 {the "Property

1
')

2012 pursuant to a search warrant.

2011

Chevrolet

$1 1 228.89
Camaro,

in
VIN

from Dunn and Malaby on May 17,
The Property was placed into

the custody of the Secret Service.
4) Atoka County Deputy Sheriff Greg Munholland initiated a traffic

2

stop of a 2011 Chevrolet Camara for a speeding violation.

During

the traffic stop, he contacted the driver and registered owner of
the vehicle, Malaby. Deputy Munholland smelled an odor of alcohol
coming from the vehicle and asked the driver to exit the vehicle
and return to his police car so he could obtain her information and
check her driver's

license status.

Malaby denied drinking or

having an open container of alcohol in the car.

Deputy Munholland

returned to the vehicle and asked passenger Dunn if there were any
open containers of alcohol in the vehicle.
handed the Deputy an open can of beer.

Dunn stated ''yes" and

Deputy Munholland returned

to his vehicle and cited Malaby for Transporting an Open Container
of Alcohol and Speeding.

He also asked for consent to search the

vehicle and Malaby stated "yesu.

Deputy Munholland contacted the

Sheriff's dispatch center and had them log in his consent search of
the vehicle.
found a

During his search of the vehicle, Deputy Munholland

quantity of

methamphetamine) .
Chase Visa cards.

controlled dangerous

drugs

He also recovered forty-seven
Twenty-three {23)

(marijuana and
(47)

JP

Morgan

of the cards were embossed

with the name nchris Dunn" and various business names.

Twenty- four

(24) of the cards were embossed with the name "Amannda Malaby" and
several different business names.

Additionally, a laptop computer

was found in the vehicle.
5)

Deputy Munholland questioned the occupants of the vehicle about

the excessive number of credit cards in their possession. Both Dunn

3

and Malaby gave him very vague and nebulous answers regarding the
cards,

explaining

businesses.

that

they

were

in

a

variety

of

internet

He found the answers given by Malaby and Dunn about

the cards to be suspicious and insufficient to explain why two
people would have almost fifty, nearly identical, credit cards in
their possession. Deputy Munholland believed that the cards were
suspect and seized them for further investigation.
6)

On May 16,

2011 1

Captain Ben Veenstra of the Durant Police

Department and District Attorney Investigator David Cathey, both
members of the Secret Service Economic Crimes Task Force, responded
to Deputy Munholland's request for investigative assistance into
the credit cards he seized.

Captain Veenstra and Investigator

Cathey determined through their investigation of the cards that the
account numbers embossed on the cards were not JP Morgan Chase
account numbers but were account numbers issued by U.S. Bank and
were therefore counterfeit or fraudulent in nature, and each card
a violation of the Oklahoma Computer Crimes Act and the Oklahoma
Credit Card Crime Act .

The investigation into the cards also

revealed that several of the U.S. Bank card numbers in possession
of Dunn and Malaby had been flagged by U.S.

Bank for suspected

fraudulent activity.
7)

On May 17,

2012,

Captain Veenstra and Investigator Cathey

learned that Malaby had posted bond for Dunn on the Atoka County
drug charges.

She secured his release from jail,

4

and they were

traveling back to Texas in the same 2011 Chevrolet Camaro they had
been driving when Deputy Munholland contacted them on May 14, 2012.
Based on the forty-seven

(47}

counterfeit credit cards,

Captain

Veenstra and Investigator Cathey had probable cause to arrest Dunn
and Malaby for violations of the Oklahoma Computer Crimes Act and
the Oklahoma Credit Card Crime Act.

A traffic stop was initiated,

with the assistance of uniformed officers of the Durant Police
Department, near U.S. 69 and North Washington in the City of Durant
Oklahoma.
8)

Dunn and Malaby were taken to the Durant Police Department to

be interviewed regarding the origin of the cards.
were in possession of seven additional cards,

Dunn and Malaby
identical to the

cards seized by Deputy Munholland on May 14, 2012.
cards on his person 1

Dunn had three

and Malaby had four cards in her purse and

$1,228.89 in genuine United States Currency.
9) Dunn and Malaby declined to waive their rights after being read
the Miranda Warning and declined to give a statement regarding the
cards.

Though she declined to be interviewed and did not waive her

rights, Malaby made several unsolicited and spontaneous statements
to officers while in custody.
the origin of the cards,
referred to them as "props 11

Malaby disavowed any knowledge of

but stated that they were "fakes" and
•

Malaby stated that Dunn had an office

in the house but she did not know what went on in it.
10)

Investigator Cathey and Capt Veenstra learned from their

5

investigation

and

information

provided

by

U.S.

Bank

that

a

fraudulent credit card transaction/ using one of the recovered U.S.
Bank account numbers, occurred at an AT&T store in Wylie, Texasr
between the time of Malaby s departure from Oklahoma on May 14,
1

2012 1 and return to Oklahoma on Wednesday night 1 May 16, 2012. The
location

of

the

AT&T

store

where

the

transaction

occurred

corresponds with GPS information contained in Malaby's phone as
being a location looked up using that phone.
11)

On May 24 1

2012,

United States Secret Service Agent Frank

Coffman interviewed Dunn at the Durant Police Department.

Prior to

the interview, Dunn was informed of the Miranda warning and signed
a waiver form agreeing to speak.
of 2011,

Dunn stated that during the fall

he began manufacturing counterfeit credit cards at his

home in Richardson, Texas.

He stated that he would use the cards

at electronics stores to purchase computer products and then resell the products via the internet at a discounted price.

Dunn

estimated that the criminal scheme earned approximately $50,000.
He indicated the money found in Malaby's possession was proceeds
from the crime.

The money used to purchase her 2011 Camaro was the

result of the counterfeit credit card scheme and proceeds of the
crime.
12)

Special Agent Coffman also interviewed Malaby at the Durant

Police Department.

She was informed of the Miranda warning and

signed a waiver form agreeing to speak.

6

Malaby stated that during

the fall of 2011,

Chris Dunn

her husband,

1

began manufacturing

counterfeit credit cards at their horne in Richardson, Texas.

They

used the cards at electronics stores to purchase computer products
and then re-sell the products via the internet at a discounted
price.

She

estimated

that

approximately $30,000.

the

criminal

scheme

earned

her

She indicated that the majority of the

money found in her possession was proceeds from the crime

1

and her

2011 Camaro was purchased with proceeds derived from the scheme.
13)
with

Dunn and Malaby were charged in Bryan County District Court
violations

of

the

Oklahoma

Oklahoma Credit Card Crime.

Computer

Crimes

Act

and

the

Malaby and Dunn were indicted in the

United States District Court for the Eastern District of Oklahoma
on August 15, 2012 and charged with Possession of Fifteen or More
Counterfeit Access Devices in violation of 18 U.S.C.§§ 1029(a) (3)

& (c) (1) (A) (i) and 18 U.S.C. § 2i and Aggravated Identity Theft in
violation of 18 U.S.C.
defendants

entered

§ 1028A(a) (1)

guilty

pleas

to

and 18 U.S.C.
the

charge

of

§ 2.

Both

Aggravated

Identity Theft pursuant to plea agreements on September 19 1 2012.
Both were sentenced on February 13, 2013.
CONCLUSIONS OF LAW

A)

Under Rule 56 (c)

of the Federal Rules of Civil Procedure 1

· summary judgment is appropriate,

"if the pleadings/ depositions,

answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that, there is no genuine issue as to

7

any material

fact

and that

the moving party is entitled to a

judgment as a matter of law. 11
burden of

showing

material fact.

that

there

is

an absence

of

any

issues

of

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106

S.Ct. 2548, 2553-54,

91 L.Ed.2d 265

material fact exists when

11

(1986).

A genuine issue of

there is sufficient evidence favoring

the non-moving party for a
party."

The moving party bears the initial

jury to return a verdict

for

that

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106

S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).

In determining whether

a genuine issue of a material fact exists, the evidence is to be
taken in the light most favorable to the non-moving party.

Adickes

v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26
L.Ed.2d 142 (1970).

Once the moving party has met its burden, the

opposing party must come forward with specific evidence, not mere
allegations or denials of the pleadings, which demonstrates that
there is a genuine issue for trial.

Posey v. Skyline Corp., 702

F.2d 102, 105 (7th Cir. 1983).
B) Since the allegations of the United States are not contested and
are supported by competent evidence, this Court finds no genuine
issue of material fact exists in relation to the facts set forth in
this Opinion and Order.

Consequently, the questions remaining for

this Court are whether the facts, as set forth, are sufficient to
grant summary judgment in favor of the United States and whether
the law would support such a finding in light of the undisputed

8

facts.
In forfeiture actions,
[T]he Government bears the burden of going forward, and
must show probable cause that the property subject to the
forfeiture is involved in criminal activity. Once this
is established/ the burden shifts to the claimant to
prove by a preponderance of the evidence that the
property is not subject to forfeiture.
United States v. $39,660 in Canadian Currency/ 801 f.2d
1210, 1216-17 (lOth Cir. 1986); 21 U.S.C. § 983 (c) (1).
In meeting its burden 1 the United States is \\only required to
establish probable cause as to a nexus between the [property] and
criminal drug activity. 11
(2nd Cir. 1993).

United States v. Daccarett, 6 F. 3d 37

1

56

Through the evidence in support of the summary

judgment Motion, the United States has demonstrated the requisite
nexus between Dunn 1 s and Malaby's illegal activity and the Property
which is the subject of this forfeiture.
18 U.S.C.

§

983(c) (2)

& (3).

Thus

1

21 U.S.C.

98l(a) (1) (C);

the burden has appropriately

shifted to Dunn and Malaby to prove that
subject to forfeiture.

§

the

Property is not

Neither Dunn nor Malaby have responded to

this action or the subject Motion with evidence or argument to
indicate that the Property is not subject to forfeiture.
Having found uncontroverted evidence in support of forfeiture 1
this Court finds summary judgment should be granted in favor of the
United States.

Forfeiture of the Property shall be ordered.

IT IS THEREFORE ORDERED that the United States 1

Motion for

Summary Judgment filed August 6, 2013 (Docket Entry #17) is hereby

9

GRANTED.

As a result,

IT IS ORDERED, ADJUDGED and DECREED that judgment be entered
in favor of Plaintiff United States of America and against the
subject

Property more

particularly described herein is hereby

FORFEITED to Plaintiff United States of America.

IT IS SO ORDERED

this~

day of October 1 2013.

JUDGE

10