United States of America v. $17,980.00 In United States Currency, in rem

Filing 18

OPINION AND ORDER. For the foregoing reasons, claimant's Motion to Dismiss and for Change of Venue (#10) is DENIED. IT IS SO ORDERED. Signed on 01/22/2013 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,

3:12-cv-01463-MA

Plaintiff,

OPINION AND ORDER

v.
$17,980.00 IN UNITED STATES
CURRENCY, in rem,
Defendant.
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ANNEMARIE SGARLATA
Assistant United States Attorney
1000 Southwest Third Avenue, Suite 600
Portland, Oregon 97204-2902
Attorneys for Plaintiff
BRIAN L. MICHAELS
259 East Fifth Avenue, Suite 300-D
Eugene, Oregon 97401
Attorney for Claimant Donna Dickson
MARSH, Judge
Plaintiff brings this civil forfeiture action pursuant to 21
U.S.C.

§

881; and 28 U.S.C.

§§

1345, 1356 & 1395.

Currently before

the court is Claimant Donna Dickson's Motion to Dismiss and for
1 - OPINION AND ORDER

For the reasons set forth below, the motion

Change of Venue (#10) .
is denied.

BACKGROUND

The government instituted this action in rem on August 13,
2012.

Attached to the complaint is the Declaration of Detective

Mark Cromwell,

which establishes the

Medford Police Department,

factual support for the complaint as follows:
On January 27, 2012, a narcotics detection canine handled by
Medford Police Officer Rob Havice alerted to a package addressed to
claimant during a routine inspection of packages being offloaded
from an airplane and sorted for deli very.

Declaration of Mark

Cromwell in Support of Complaint in rem for Forfeiture at 2.

The

package was addressed to claimant, and listed the shipper as "G &
CO." with an address in Astoria, New York.

Id. at 3.

Detective

Cromwell could not locate any company by the name of "G & CO." in
Astoria.

Id. at 5.

complex in Astoria,
package.

Id.

The shipper's address was a large apartment
although no unit number was

listed on the

The telephone number associated with the Astoria,

New York address was the same number as that listed for claimant in
Grants Pass, Oregon, and was disconnected.

Id. at 3, 5.

After obtaining a search warrant, Officer Havice and Detective
Cromwell opened the package.

Id. at 2.

The package was heavily

taped on the exterior, with each edge and seam sealed with multiple
layers of packing tape.
2 - OPINION AND ORDER

Id. at 3.

Upon opening the box, Officer

Havice and Detective Cromwell found a second box that also had all
Inside the second box,

Id.

of the seams sealed with packing tape.

the $17,980.00 in United States currency was vacuum sealed inside
The officers found a soap-like

Id.

multiple layers of plastic.

Oregon

the

Medical

registry

Program

Marijuana

A search of

Id.

fragrant substance between the layers of plastic.

revealed

that

Id. at 4.

claimant's address was listed as a participant.
DISCUSSION
Motion to Dismiss

I.

government

The

represents

proceeds

that

contends
traceable

to

an

for

exchange

currency

in

$17, 980.00

the

controlled

substances, or was used or intended to be used to facilitate such
a

transaction,

and

pursuant to 21 U.S.C.
claimant

argues

thus

is

that

forfeitable

88l(a)(6).

§

the

government

to

the

States

United

In his motion to dismiss,
does

not

state

any

facts

attributing criminal activity to the claimant or the defendant
currency.
Rule G(2) sets forth the pleading requirements for a complaint
in

a

civil

forfeiture

proceeding.

Pursuant

to

that

rule,

a

complaint must "state sufficiently detailed facts to support a
reasonable belief that the government will be able to meet its
burden of proof at trial."

Supplemental Rules for Admiralty or

Maritime Claims and Asset Forfeiture Actions ("Supp. R.") G(2) (f)
& G(8) (b).

When ruling on a motion to dismiss, this court accepts

3 - OPINION AND ORDER

Ashcroft v.

the factual allegations of the complaint as true.

Iqbal, 556 U.S. 662, 678 (2009); Erickson v. Pardus, 551 U.S. 89,
94 (2007).
At trial, the government will bear the burden of proving, by
a

preponderance

of

the

evidence,

that

the

seized currency

is

forfeitable, and that there is a· substantial connection between the
currency and a drug offense.
pleading

stage,

however,

18 U.S.C.

the

§

983(c) (1) & (3).

government

need not

At the

identify the

particular drug offense to which the currency was connected,

so

long as the allegations of the complaint are otherwise sufficient
to support the reasonable belief that the government will be able
to carry its ultimate burden of proof at trial.

United States v.

Two Parcels of Property Located.in Russell Cty.,
1123,

1127

Currency,

(11th Cir.
2010 WL

adopted by,

2010 WL 2803954

92 F.3d

~u~n~i~t~e~d~s~t~a~t~e~s~v~·~$~4~2~,~9~9~0~-~o~o~u~.s~.

1996);

2506360,

Ala.,

at

*4

(M.D.

Tenn.

(M.D.

Tenn.

Jul.

June
15,

17,

2010),

2010);

United

States v. Funds in the Arnt. Of $45,050.00, 2007 WL 2323307, at *5
(N.D. Ill. Aug. 9, 2007).

A complaint may not be dismissed on the

ground the government did not have adequate evidence at the time
the complaint was filed.

28 U.S.C.

§

983(a) (3) (D).

As outlined above, the government alleges the following facts
support the forfeiture of the defendant United States currency: (1)
a canine search of the package containing the defendant currency
was

positive

for

the

4 - OPINION AND ORDER

odor

of

narcotics;

(2)

the

package

had

multiple layers of tape covering every seam, a second box on the
inside,

and

substance

vacuum

covering

sealed
the

plastic

defendant

with

had

access

( 4)

controlled

to

soap-like

currency;

contained a large amount of currency;
package

a

(3)

fragrant

the

package

the recipient of the

substances

through

her

participation in the Oregon Medical Marijuana Program; and (5) the
sender and recipient information on the package was incomplete or
incorrect

in multiple

respects,

including

the

lack of

a

unit

number, "G & CO." not being in operation, and the use of the same
disconnected telephone number for sender and recipient.
Claimant's argument that this court must discount the dog
alert

is

incorrect.

The

allegation

of

a

trained

narcotics-

detecting dog's alert to the odor of narcotics on the defendant
property

is

relevant

to

establishing

forfeitability

substantial connection with a drug offense.
Currency, U.S. $42,500.00, 283 F. 3d 977,

and

a

See United States v.

982-83

(9th Cir. 2002).

Claimant's argument that the complaint must establish probable
cause at this

stage because the seizure of the property would

otherwise violate Due Process is also incorrect.

Property may

generally only be seized to begin forfeiture proceedings after the
issuance of a warrant supported by probable cause.
981 (b); Supp. R. G (3) (b).
case.

21

§

This court issued such a warrant in this

Warrant for Arrest and Seizure of Property (#4).

5 - OPINION AND ORDER

u.s.c.

Thus, the

seizure of the defendant currency was constitutional.

See Calero-

Toledo v. Pearson Yacht Leasing Co., 415 U.S. 663, 676-80 (1974).
The

allegations

contained

in

the

complaint

and

attached

declaration, including the canine alert, are sufficient to support
a reasonable belief that the government will be able to meet its
burden at trial.

Accordingly,

claimant's motion to dismiss is

denied.
II.

Motion to Transfer Venue

Claimant moves to transfer venue to the United States District
Court for the District of Oregon, Medford Division.
the

District of

Oregon.

This

case was

filed

Venue lies in

in the

Portland

Division by the United States Attorney and assigned to me pursuant
to the District of Oregon's Case Assignment Plan.

If this case

proceeds to trial, the court will consider reassignment to a judge
in the Medford Division at that time.

Accordingly,

claimant's

motion to transfer venue is denied without prejudice.
CONCLUSION

For the foregoing reasons, claimant's Motion to Dismiss and
for Change of Venue (#10) is DENIED.
IT IS SO ORDERED.
DATED this

~ ;;1.. day of January, 2013.

Malcolm F. Marsh
United States District Judge
6 - OPINION AND ORDER