Hunter v. United States of America

Filing 14

ORDER Directing Supplemental Briefing ( Government's Supplemental brief due by 8/29/2014 and Frankie Hunter's response, if any due by 9/5/2014). Signed by U.S. District Judge Robert H. Cleland on 8/20/2014. (lgw)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FRANKIE HUNTER,
Petitioner,
Case No.

v.

13-mc-39

UNITED STATES OF AMERICA,
Respondent.
/
ORDER DIRECTING SUPPLEMENTAL BRIEFING
This is an ancillary proceeding to United States v. Michael Lusk, No. 09-20314.
Currently pending before the court is the government’s motion to dismiss Hunter’s
petition challenging the government’s seizure of $77,488.69 from Regions Bank
Account # xxxxxx2011 (“the Bank Account”).
In its motion to dismiss, the government extensively argues that Hunter does not
qualify for relief under 21 U.S.C. § 853(n)(6) because he served as a mere nominee of
the criminal defendant, Michael Lusk, thereby depriving him of a legal interest in the
Bank Account. Much of the case law cited by the government is from jurisdictions
outside of the Sixth Circuit, including a “dominion and control” test used by the Fourth
Circuit to determine whether a petitioner has acted as a “mere nominee” for a criminal
defendant. See, e.g. United States v. Bryson (In re Bryson), 406 F.3d 284, 291 (4th Cir.
2005); United States v. Morgan, 224 F.3d 339, 343 (4th Cir. 2000). However, the Sixth
Circuit appears to utilize a different approach, looking to state law to determine the
nature of the property interest involved in a forfeiture proceeding. See, e.g., United

States v. Smith, 966 F.2d 1045, 1054 n.10 (6th Cir. 1992); United States v. O’Dell, 247
F.3d 655, 680 n.9 (6th Cir. 2001).
Given that the subject property was located in Mississippi before the sale which
provided the funds in the Bank Account, it would seem that Mississippi law should apply
to determine the nature of Hunter’s interest in the Bank Account’s funds. However, it is
unclear whether Mississippi law recognizes a distinction between parties who hold legal
title to a property, and those who do so as a “mere nominee” of a criminal defendant.
Accordingly,
IT IS ORDERED that the government is DIRECTED to file a supplemental brief
of no more than ten pages by August 29, 2014, answering whether:
1. Mississippi (or some other state’s) law should apply to this action and,
if so;
2. Whether Hunter has a “legal interest” in the Bank Account under the
relevant state’s law.
Hunter may respond in a brief of no more than ten pages by September 5, 2014.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: August 20, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, August 20, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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