Hunter v. United States of America
Filing
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OPINION AND ORDER Granting Without Prejudice Defendant's Motion to Dismiss 4 Notice (Other) filed by United States of America. Signed by U.S. District Judge Robert H. Cleland on 2/4/2014. (lgw)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
FRANKIE HUNTER,
Petitioner,
Case No. 13-00039
v.
UNITED STATES OF AMERICA,
Defendant.
/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
On October 24, 2013, Petitioner Frankie Hunter, proceeding pro se, filed a petition
claiming all interest in $77,488.69, which the United States seized from Regions Bank
Account # 019207201 in the name of Frankie Hunter, on September 16, 2013. On
November 22, 2013, the United States responded and moved to dismiss Hunter’s petition
for lack of standing and failure to state a claim under Fed. R. Crim. P. 32.2(c).
Rule 32.2(c)(1)(A) provides: “In [an] ancillary proceeding, the court may, on motion,
dismiss the petition for lack of standing, for failure to state a claim, or for any other lawful
reason.” Id. “[A] motion to dismiss a third-party petition in a forfeiture proceeding prior to
discovery or a hearing should be treated like a motion to dismiss a civil complaint under
Federal Rule of Civil Procedure 12(b).” United States v. Salti, 579 F.3d 656, 667 (6th Cir.
2009) (citation omitted). Thus, the petition’s non-conclusory factual allegations are taken
as true and construed in favor of the petitioner. Id. at n. 11. “Where a petitioner fails to
allege or make a prima facie showing of any legal right, title or interest in the forfeited
property, no hearing or trial is mandated.” United States v. Fabian, No. 1:11-cr-157, 2013
WL 150361, at *4 (W.D. Mich. Jan. 14, 2013).
Under 21 U.S.C. § 853(n)(3), a third-party petitioner must sign his petition under
penalty of perjury and “set forth the nature and extent of the petitioner’s right, title, or
interest in the property, the time and circumstances of the petitioner’s acquisition of the
right, title, or interest in the property, any additional facts supporting the petitioner’s claim,
and the relief sought.” Hunter’s petition plainly does not meet these requirements. It does
not set forth the nature and extent of his title in the claimed property, it does not describe
how he acquired title or interest in the property, and it is not signed under penalty of
perjury. Indeed it does not even come close—Hunter’s petition identifies the bank account
that was seized by the government and states that he is “claiming all interest in set
forfeited property or currency” without providing any additional detail. Section 853(n)’s
requirements are not mere formalities that may be easily waived—they are essential to
establishing standing and ascertaining petitioner’s willingness to swear the truth of his
claim in an area fraught with falsity. See Fabian, 2013 WL 150361, at *8; United States v.
Hailey, 924 F. Supp. 2d 648, 658 (D. Md. 2013). Accordingly,
IT IS ORDERED that Defendant’s motion to dismiss [Dkt. # 4] is GRANTED and
Hunter’s petition [Dkt. # 1] is DISMISSED WITHOUT PREJUDICE. If Petitioner does not
amend his petition to satisfy the statutory requirements by February 27, 2014, this
dismissal will be with prejudice.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: February 4, 2014
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I hereby certify that a copy of the foregoing document was mailed to counsel of record on
this date, February 4, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-00039.HUNTER.OrderDismissPetition.jac.wpd
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