Opinion
Civil Action No. 1:06-cv-330-GET.
August 2, 2006
ORDER
The above-styled matter is presently before the court on:
(1) claimant's motion to dismiss forfeiture complaint [docket no. 6];
(2) plaintiff's motion to dismiss claimant's statement of interest [docket no. 10].
On February 14, 2006, the United States filed this civil forfeiture action against $1,189,466.00 pursuant to 21 U.S.C. § 881(a)(6) which authorizes the forfeiture of goods, money and real property which the United States has probable cause to believe may be substantially connected with illegal drug transactions. On April 14, 2006, Agha Abid filed a "Statement of Interest" asserting a claim in the funds as "the finder of the funds on his property."
On April 20, 2006, Abid filed a motion to dismiss the forfeiture complaint. On May 4, 2006, the United States filed an amended complaint for forfeiture and a motion to dismiss claimant's statement of interest.
Background
On July 2, 2005, claimant, a taxicab driver, received a call from the Marriott Hotel in Gwinnett County, Georgia to pick up a customer. Claimant arrived at the hotel and met his customer, Cavazos Ruben Ignacio. A suitcase was placed in the trunk of claimant's car and then Mr. Ignacio directed claimant to take him to the Ritz-Carlton in Buckhead.
While driving south on 1-85, claimant was pulled over by an officer with the Georgia State Patrol for an illegal lane change. After discussing the traffic violation with claimant, the officer asked if he could look in claimant's trunk. Claimant consented to a search and the officer called for support from another officer.
Claimant stated that his passenger had a bag in the trunk. Claimant denied ownership of the bag. Upon searching the trunk, the officers found a large black "Olympic" brand suitcase with a lock on it. Claimant's passenger stated that "it's a favor for a friend. I do not have the keys." The passenger denied knowing what was in the bag.
The officer informed claimant and his passenger that a drug-detection dog was on the way and that if the dog alerted to the odor of narcotics on the suitcase, the officer would open it. Both claimant and his passenger denied knowing what was in the suitcase. When the drug dog arrived, it alerted to the odor of narcotics in or on the suitcase. The officer then cut a portion of the suitcase open and observed bundles of currency wrapped in cellophane. The officer seized the suitcase and secured it in his patrol car.
Claimant's passenger was placed in the back of the patrol car and claimant agreed to drive to the Doraville Police Department to talk to DEA agents. At the police station, the claimant denied any involvement with the defendant currency. Claimant's passenger also disclaimed ownership of the currency. Claimant and his passenger were not arrested and were allowed to leave the police station.
Discussion
Motion to dismiss statement of claim
Plaintiff moves to dismiss claimant's statement of claim for lack of subject matter jurisdiction. Specifically, plaintiff contends that claimant does not have a sufficient ownership interest in the defendant currency to establish standing to contest its forfeiture.
Standing is a "threshold question for entry into a federal court." United States v. $38,570 in U.S. Currency, 950 F.2d 1108, 1111 (5th Cir. 1992); see also United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1543 (11th Cir. 1983). The burden of establishing standing to contest a civil forfeiture action is on the claimant. United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1505 (11th Cir. 1993). The claimant must establish that he has a sufficient ownership interest in the property subject to forfeiture to create a case or controversy to confer Article III standing. United States v. One Lincoln Navigator 1998, 328 F.3d 1011, 1013 (8th Cir. 2003). The claimant need not own the property subject to forfeiture to have Article III standing; a lesser property interest such as a possessory interest, is sufficient for standing. $38,000.00 in U.S. Currency, 816 F.2d at 1543. However, unexplained naked possess ion of cash does not rise to the level of a possessory interest required to establish standing. United States v. $347,542.00 in U.S. Currency, 2001 WL 335828, *3 (S.D. Fl. 2001) citing United States v. $321,470.00 in U.S. Currency, 874 F.2d 298 (5th Cir. 1989). The claimant must show that he, in fact, is a possessor, rather than a "simple, perhaps unknowing custodian, with some indicia of reliability or substance to reduce the likelihood of a false or frivolous claim." Id. The claimant must come forward with some evidence of ownership to establish standing. $38,570 in U.S. Currency, 950 F.2d at 1112 (holding bare assertion of ownership of the res, without more, is inadequate to prove an ownership interest sufficient to establish standing). Ownership interests are defined by the law of the state in which the interest arose.One Lincoln Navigator 1998, 328 F.2d at 1013.
Claimant contends that he is the owner of the currency because he "found the suitcase on his property" and "no other party has made a claim to the property." Alternatively, claimant contends that he has the rights to the funds as a fiduciary of the property for the true owner. Claimant relies on McDonald v. Railway Express Agency, Inc., 89 Ga. App. 884 (1954) in which a railway employee found a purse with a substantial amount of money and turned it over to his employer. After eight months, the employee claimed the money. The court stated that a "finder of lost property has a right to it as against the world, except against the true owner." Id. at 884. The court also held that the railroad company had a right to hold the property as a fiduciary under a theory of privity of contract with the person who mislaid the property. Id. at 885.
The instant action is distinguishable, however, because the currency was not "lost" at the time it was seized. See id. at 844 ("lost property is that with which possession has been casually and involuntarily parted, so that the mind has no impression, and can have no recourse to the event"). Likewise., claimant was never in actual or constructive possession of the suitcase and has no fiduciary duty to the owner. See O.C.G.A. § 44-12-192(8)(A)-(C); Thomas v. Georgia, 153 Ga. App. 686 (1983). Finally, there is no allegation sufficient to support a finding that claimant was the "bailee" for the true owner.
Therefore, the court finds that claimant lacks Article III standing. Mercado v. U.S. Customs Service, 873 F.2d 641, 645 (2nd Cir. 1989) (finding that a claim of possession without knowledge of the contents was insufficient to confer standing).
Even if claimant could establish Article III standing, claimant can not establish that he is an "owner" pursuant to 18 U.S.C. § 983(d)(6). The definition of "owner" specifically excludes a bailee "unless the bailor is identified and the bailee shows a colorable legitimate interest in the property seized." 18 U.S.C. § 983 (d)(6)(B)(ii). No bailor has been identified by claimant and no other grounds for statutory standing exist.
Therefore, in light of the foregoing, the court hereby GRANTS plaintiff's motion to dismiss claimant's statement of interest [docket no. 10].
Motion to Dismiss
As discussed above, the court finds that claimant does not have a sufficient ownership interest in the seized property to convey standing. Even if the claimant had standing, however, claimant would not be entitled to dismissal of the forfeiture complaint for the reasons discussed below.
Claimant moves to dismiss the complaint for forfeiture on the grounds that (1) the government's forfeiture claim is untimely, and (2) the forfeiture complaint fails to state a claim upon which relief can be granted. The court will address each argument in turn.
Timeliness
Section 983(a) (3) provides: "Not later than 90 days after a claim has been filed, the Government shall file a complaint for forfeiture in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims or return the property pending the filing of a complaint." 18 U.S.C. § 983(a)(3)(A). "A claim shall (i) identify the specific property being claimed; (ii) state the claimant's interest in such property; and (iii) be made under oath, subject to penalty of perjury." 18 U.S.C. §
On October 28, 2005, claimant filed a Claim of ownership with the DEA stating that he is the owner of the seized property. The Claim of Ownership was signed by the claimant and notarized. The government, however, returned this Claim of ownership to claimant as defective because it was not signed under oath "subject to penalty of perjury." On November 23, 2005, claimant executed a "Declaration of Agha Abid Under Penalty of Perjury" in which he declares under oath and penalty of perjury that he is the owner of the seized property.
Plaintiff argues that the government's complaint was untimely because it was filed more than ninety days after claimant's first claim of ownership was filed. It is undisputed that the complaint was filed within ninety days of plaintiff's declaration in November.
Having reviewed the arguments of the parties, the court finds that claimant's first Claim of Ownership did not sufficiently comply with the statute's requirements that the claim be made under oath subject to penalty of perjury. Therefore, the time for filing the complaint for forfeiture did not start until claimant filed his declaration on November 28, 2005. Accordingly, the plaintiff's complaint for forfeiture filed on February 14, 2006 was timely.
Failure to state a claim
On May 4, 2006, plaintiff filed its amended complaint for forfeiture. Therefore, claimant's motion to dismiss for failure to state a claim is moot as to the original complaint. The court, however, will consider the amended complaint when deciding claimant's motion to dismiss for failure to state a claim.
Pursuant to 18 U.S.G. § 983(a)(3)(A), the government is required to file a complaint for forfeiture in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims which state: "In actions to which this rule is applicable the complaint shall 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." Rule E (2) (A) "[T]he complaint must allege sufficient facts to provide a reasonable belief that the property is subject to forfeiture." United States v. Two Parcels of Real Property located in Russell County, Alabama, 92 F.3d 1123, 1126 (11th Cir. 1996). A forfeiture complaint that gives a detailed description of the property to be forfeited and the circumstances of its seizure is sufficiently particular. See e.g., United States v. Funds in Amount of $122,500.00, 2000 WL 984411 (N.D. Ill. 2000) (finding that a complaint that contains specific information about the date and location of the seizure, the amount of money seized, and claimant's actions on the date of the seizure is sufficiently particular).
In the amended complaint, plaintiff identifies the currency which was seized, where and when it was seized and states that claimant was present at the time of the seizure. The complaint also alleges that a drug detection dog alerted to the presence of the odor of illegal narcotics on the luggage containing the currency, the packaging of the currency in a manner consistent with the drug trade and that the passenger in claimant's car had been observed during surveillance in an investigation of a cocaine distribution organization. The court finds the allegations in the amended complaint sufficient to "provide a reasonable belief that the property is subject to forfeiture."Two Parcels of Real Property located in Russell County, Alabama, 92 F.3d at 1126.
Accordingly, in light of the foregoing, the court hereby DENIES claimant' motion to dismiss the forfeiture complaint [docket no. 6].
Summary
(1) Claimant's motion to dismiss forfeiture complaint [docket no. 6] is DENIED;
(2) Plaintiff's motion to dismiss claimant's statement of interest [docket no. 10] is GRANTED.
SO ORDERED.