United States of America v. 116850 in US Currency

Filing 29

ORDER denying 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Signed by Honorable Joseph F. Anderson, Jr. on 11/25/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
United States of America,

C/A No. 3:14-cv-01794-JFA

Plaintiff,
vs.

ORDER ON MOTION
TO DISMISS

$116,850 in United States Currency,
Defendant In Rem.

I.

INTRODUCTION
The United States brings this in rem civil forfeiture action pursuant to Rule G(2) of the

Supplemental Rules of Admiralty and Maritime Claims and Asset Forfeiture Claims
(“Supplemental Rules”). Presently before the court is Claimant Hung “Byron” Tran’s (“Tran”)
Motion to Dismiss, [ECF No. 10], per Federal Rule of Civil Procedure 12(b)(6) and Rule G(8) of
the Supplemental Rules. The Motion to Dismiss is ripe for disposition after being fully briefed
and oral arguments heard on November 24, 2014.
II.

PROCEDURAL HISTORY
On May 2, 2014, the Government filed a Verified Complaint for Forfeiture against

$116,850 in U.S. currency, alleging that the money was furnished or intended to be furnished in
exchange for a controlled substance, in violation of the Controlled Substances Act, 21 U.S.C. §§
801, et seq.; proceeds traceable to such an exchange; or money used and intended to be used to
facilitate a violation of the Controlled Substances Act; property involved in money laundering;
property involved in an illegal money transmitting business or proceeds of some other form of

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specified illegal activity and is, therefore, subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6),
18 U.S.C. § 981(a)(1)(A) and 18 U.S.C. § 981(a)(1)(C). [ECF No. 1].
On May 12, 2014, the Government served notice of the judicial forfeiture action on Tran,
Maria Troung, and Alexander Troung. [ECF No. 7]. On May 23, 2014, Tran filed a Verified
Claim asserting his interest in the $116,850 in United States Currency (“Defendant Currency”).
[ECF No. 8]. No additional claims have been filed and the time has expired for any person to
file a claim to the Defendant Currency.
III.

FACTS ALLEGED IN THE COMPLAINT
As set forth in detail in the Complaint, on December 13, 2013, a rented vehicle driven by

Tran was stopped for speeding while traveling northbound on Interstate 95 in Sumter, South
Carolina. [ECF No. 1, p. 5]. Shortly after approaching the vehicle, the Sumter County officer
who conducted the stop observed that Tran’s hands were shaking and that he was sweating. Id.
The officer noted that Tran was unusually nervous for an ordinary traffic stop. [ECF No. 1, p.
7]. The officer also observed three cellular phones amongst the two passengers, one of which
appeared to be a disposable flip phone.1 [ECF No. 1, p. 6]. Tran informed the officer that he
was traveling home to Virginia from Orlando, Florida. Id. According to Tran, his girlfriend,
Maria Troung, lives in Orlando and the passenger in the vehicle, Alexander Troung, was her
eighteen year-old son. Id. Tran maintained that he was taking Troung to Washington, D.C., so
that Troung could take a train to New Jersey to visit his girlfriend. Id. However, when the
officer spoke to Troung, Troung told the officer that he was traveling to Philadelphia,
Pennsylvania to visit his father and denied having a girlfriend. Id.

1

In a footnote, the Complaint states “during a subsequent search of the vehicle, officers found a
receipt for a … $40 purchase of a prepaid cellular phone.”
2

The officer continued to question Tran. The officer asked Tran to open the trunk, and
Tran voluntarily opened the trunk. [ECF No. 1, p. 6]. The officer observed two suitcases in the
trunk, and Tran indicated a black Samsonite suitcase as his own. Id. When asked whether he
was traveling with a large amount of cash, Tran hesitated to respond to the officer. [ECF No. 1,
p. 7]. The officer asked for consent to search the vehicle; however, Tran declined. Id. The
officer then requested Tran exit the vehicle and called a drug dog to the scene. Id. The drug dog
alerted to the presence of the odor of narcotic substances on the suitcase Tran identified as his
own. Id. The officer located the Defendant Currency in 12 rubber-banded bundles inside Tran’s
suitcase. Id.
After the discovery of the currency, Tran informed the officer that the total amount of
currency was $110,000 and maintained that he was “holding” the currency for his girlfriend who
transferred it to him while he was in Orlando. Id. Tran insisted that his girlfriend did not ask
him to deliver it to anyone. Id. Tran also stated that his girlfriend does use banks and has a bank
account. [ECF No. 1, p. 8]. When offered the opportunity to resolve the matter by allowing the
officer to contact his girlfriend to verify the owner and source of the currency, Tran declined to
disclose his girlfriend’s name, telephone number or her source of income or employment and
stated that he had only been dating her for a couple of months. [ECF No. 1, p. 7].
The officer seized the currency for purposes of forfeiture. [ECF No. 1, p. 8]. The
Defendant Currency was comprised of 5,820 twenty-dollar bills ($116,400), 5 fifty-dollar bills
($250) and 2 one hundred-dollar bills ($200). Id. According to the Complaint, this distribution
of denominations is typical of currency involved in drug trafficking and/or the proceeds thereof.
Id.
IV.

CIVIL FORFEITURE ACTIONS

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A civil forfeiture action is an in rem proceeding brought by the Government as plaintiff
asserting that “all right, title, and interest in [the defendant] property” has vested in “the United
States upon commission of the act giving rise to forfeiture.” 18 U.S.C. § 981(f). A civil
forfeiture action is governed by the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”),
Pub.L. No. 106–185, 114 Stat. 202 (codified in part at 18 U.S.C. § 983). Under CAFRA, the
Government ultimately must prove, “by a preponderance of the evidence, that the property is
subject to forfeiture[.]” 18 U.S.C. § 983(c)(1). “[I]f the Government's theory of forfeiture is that
the property was used to commit or facilitate the commission of a criminal offense, the
Government shall establish that there was a substantial connection between the property and the
offense.” 18 U.S.C. § 983(c)(3). “However, the Government need not satisfy the burden
imposed by § 983(c)(3) at the initial pleading stage.” United States v. $78,850.00 in U.S.
Currency, 444 F. Supp. 2d 630, 637–38 (D.S.C. 2006) (citing United States v. $200,255.00, 2006
WL 1687774, *7 (M.D. Ga. June 16, 2006)).
In a forfeiture action Complaint, the Government must “state sufficiently detailed facts to
support a reasonable belief that the [G]overnment will be able to meet its burden of proof at
trial.” SUPP. R. G(2)(f). The “reasonable belief” standard in Rule G(2)(f) is the same standard
for sufficiency of a complaint contained in the previously applicable Rule E(2), and cases
interpreting it. SUPP. R. G(2) 2006 advisory committee notes. See, e.g., United States v.
Mondragon, 313 F.3d 862, 864 (4th Cir. 2002); $78,850.00, 444 F. Supp. 2d at 638. Rule
E(2)(a) required, and still requires that the “complaint ... state the circumstances from which the
claim arises with such particularity that the defendant or claimant will be able, without moving
for a more definite statement, to commence an investigation of the facts and to frame a
responsive pleading.”

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Of import here, “the Government may use evidence gathered after the filing of a
complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject
to forfeiture[.]” 18 U.S.C. § 983(c)(2). Therefore, “[n]o complaint may be dismissed on the
ground that the Government did not have adequate evidence at the time the complaint was filed
to establish the forfeitability of the property.” Id. § 983(a)(3)(D). As such, “the Government's
forfeiture claim can advance forward in the face of a ... motion to dismiss even if the
Government's complaint does not provide all the facts that would allow the Government to
ultimately succeed in the forfeiture proceeding.” United States v. 630 Ardmore Drive, 178 F.
Supp. 2d 572, 581 (M.D.N.C. 2001).
V.

DISCUSSION
As an initial matter, Tran has filed his motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) and Rule G(8) of the Supplemental Rules. Both the Federal Rules of Civil
Procedure and the Supplemental Rules apply to a civil forfeiture action. See $78,850.00, 444 F.
Supp. 2d at 638; see also United States v. $85,000 in U.S. Currency, 2011 WL 1063295, at *1
(D. Md. Mar. 21, 2011). In the event of an inconsistency, the Supplemental Rules will prevail
over the Federal Rules of Civil Procedure. See SUPP. R. A(2); see also $85,000, 2011 WL
1063295 at *1 (emphasis added). Although Tran cites to the pleading standards applicable under
Rule 8 of the Federal Rules of Civil Procedure, Section 983(a)(3)(A) of Title 18 directs that a
civil forfeiture complaint must be filed in accordance with the Supplemental Rules, which
includes Rule G(2), the particularity in pleading requirement.
In the present case, the parties do not dispute that the Complaint meets the preliminary
requirements of Rule G—it is verified and it states the grounds for subject matter jurisdiction, in

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rem jurisdiction, and venue. [ECF No. 1, pp. 1–2]; SUPP. R. G(2)(a)-(b). The Complaint
described the property seized and the manner of packaging with reasonable particularity. [ECF
No. 1, p. 6]; SUPP. R. G(2)(c). It described the circumstances of seizure, the positive alert on the
suitcase by the drug dog, and the statements of Tran. [ECF No. 1, pp. 6–7]; SUPP. R. G(2)(d).
The Complaint cited “21 U.S.C. § 881(a)(6), 18 U.S.C. § 991(a)(1)(A) and 18 U.S.C. §
991(a)(1)(C)” as the statutes under which the action was brought. [ECF No. 1, p. 1]; SUPP. R.
G(2)(e). Thus, the only issue in dispute is whether the Complaint satisfies Rule G(2)(f)—
whether the Complaint states sufficiently detailed facts to support a reasonable belief that the
Government will be able to meet its burden of proof at trial. As outlined in Section 983(c)(1) of
Title 18, “the burden of proof is on the Government to establish, by a preponderance of the
evidence, that the property is subject to forfeiture.”
Tran argues that the Complaint does not allege sufficient facts for the Government to
prove by a preponderance of evidence that the funds are forfeitable. (Claimant’s Motion, ECF
No. 10-2, p. 6). Specifically, Tran argues that Plaintiff failed to allege in the Complaint any facts
regarding any alleged drug transaction. (Claimant’s Motion, ECF No. 10-2, p. 8). Tran points
out that there were no drugs or drug paraphernalia recovered in Tran’s vehicle, and that there
were no indicia of any drug activity. Id. Further, Tran argues that the Complaint is devoid of
any facts related to any alleged money laundering transactions and the Complaint sets forth no
allegation that Tran was promoting an unlawful activity, or that he was concealing unlawful
activity. (Claimant’s Motion, ECF No. 10-2, p. 9). In toto, Tran argues that the Complaint is
devoid of facts that are sufficient to show that Defendant Currency was drug proceeds or
proceeds from unlawful activity. (Claimant’s Motion, ECF No. 10-2, p. 11). Therefore, any
belief that the Government will be able to meet its burden of proof at trial is not reasonable.

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At the pleading stage,2 for the civil forfeiture complaint to be sufficient there need only
be a reasonable belief that the Government can meet its burden at trial. SUPP. R. G(2)(f). In
other words, does the complaint—read in a light most favorable to the Government—allege facts
that will support a reasonable belief that the seized currency was more likely than not connected
to an illegal drug transaction, or money laundering, or an illegal money transmitting business.
See 21 U.S.C. 881(a)(6); 18 U.S.C 983(c); Mondragon, 313 F.3d at 866–65.
The court looks to the totality of circumstances to evaluate the sufficiency of the
Complaint. Mondragon, 313 F.3d at 866 (the court took into account the dog alert “with the rest
of the circumstances”). Here, the Government has alleged facts that include a nervous and
sweating driver pulled over on “Interstate 95, a known drug corridor.”

United States v.

$21,408.00 in U.S. Currency, No. 4:10-CV-138, 2010 WL 4687876, at *3 (S.D. Ga. Nov. 10,
2010). A disposable cell phone and an attempt to avoid a vehicle search.

Inconsistent

statements regarding travel plans. United States v. $22,474.00 in U.S. Currency, 246 F.3d 1212
1216–17 (9th Cir. 2001) (inconsistent statements and discrepancies in stories support an
inference that the money was drug-related); see also United States v. $50,040 in U.S. Currency,
No. C 06-04552 WHA, 2007 WL 1176631, at *4 (N.D. Cal. Apr. 20, 2007). The Government
alleged a drug dog alerted to the odor of narcotics around the suitcase.

United States v.

Currency, U.S. $42,500.00, 283 F.3d 977, 982 (9th Cir. 2002) (whether there is a sophisticated
drug dog alert is an important factor). Numerous rubber-banded bundles of money discovered in
a suitcase within the trunk. $42,500.00, 283 F.3d at 982 (wrapping money in cellophane was
commonly used to conceal drug odor and avoid detection by drug dogs); see also United States

2

At oral argument held before this Court on November 24, 2014, Tran vehemently disputed the
allegations within the Complaint; however, such factual disputes go to the merits of the action
and are premature at this motion to dismiss stage.
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v. $242,484.00 in U.S. Currency, 389 F.3d 1149, 1161–63 (11th Cir. 2004) (rubber-banded
money sealed in cellophane-like material and Christmas wrap was consistent with drug couriers);
$21,408.00, No. 4:10-CV-138, 2010 WL 4687876 at *4 (motion to dismiss denied when one of
the facts included a large amount of money stuffed in camping bags within the trunk of the
vehicle). Finally, the Government has alleged facts regarding the denominations of the currency,
noting such denominations are common in drug transactions,3 and a refusal by the driver to
provide detailed information of the person who allegedly gave the driver the large sum of money.
The totality of these allegations supports a reasonable belief that the Government will be
able to meet its burden of proof at trial, as required by Rule G(2)(f). Mondragon, 313 F.3d at
866 (the sum, unusual packaging in sealed plastic bags and drug dog alert on money found
sufficient to survive motion to dismiss). The allegations pleaded in the Complaint, similar to
Mondragon, are sufficient to survive a motion to dismiss. The Complaint provides Tran with
ample facts to be able to commence a meaningful investigation and frame a responsive pleading.
Dismissal at this stage in the litigation would be premature.
VI.

CONCLUSION
Finding that the Complaint sufficiently states a claim under Supplemental Rule G(2), this

Court DENIES claimant's Motion to Dismiss, [ECF No. 10].
IT IS SO ORDERED.
November 25, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

3

A large sum of money, by itself, is insufficient to show a connection to drugs. United States v.
Currency, U.S. $42,500.00, 283 F.3d 977, 981–82 (9th Cir. 2002); see also United States v.
$50,040 in U.S. Currency, No. C 06-04552 WHA, 2007 WL 1176631, at *4 (N.D. Cal. Apr. 20,
2007)
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