Opinion
5:21-CV-363 (MTT)
05-29-2024
UNITED STATES OF AMERICA, Plaintiff, v. ONE (1) 2018 AUDI, MODEL Q7 PRESTIGE VIN WA1VAAF74JD029812, Defendant Property, CELENA JAMES Claimant.
PETER D. LEARY UNITED STATES ATTORNEY MICHAEL PATRICK MORRILL Assistant United States Attorney Georgia Bar Number: 545410 United States Attorney's Office Middle District of Georgia C. BRIAN JARRARD ESQ. Jarrard Law Group, LLC ATTORNEY FOR CELENA J AMES
PETER D. LEARY UNITED STATES ATTORNEY MICHAEL PATRICK MORRILL Assistant United States Attorney Georgia Bar Number: 545410 United States Attorney's Office Middle District of Georgia
C. BRIAN JARRARD ESQ. Jarrard Law Group, LLC ATTORNEY FOR CELENA J AMES
AMENDED STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE OF CLAIMS AS TO THE DEFENDANT PROPERTY CLAIMED BY CELENA JAMES
This Amended Stipulation for Compromise Settlement and Release of Claims (hereinafter “Amended Stipulation Agreement”) is made and entered into between Plaintiff, United States of America, Claimant Celena James (hereinafter “Claimant” or “James”), and Claimant's Counsel, C. Brian Jarrard, Esquire, (collectively, “the Parties”).
After a preliminary investigation, Plaintiff asserts that it has evidence to establish that the Defendant Property constitutes proceeds traceable to the exchange or sale of a controlled substance, and was used or intended to be used to transport, or facilitate the transportation, sale, receipt, possession, or concealment of a controlled substance, in violation of Title II of the Controlled Substances Act, 21 U.S.C. § 801 et seq. and is, therefore, subject to forfeiture pursuant to 21 U.S.C. §§ 881(a)(6) and (a)(4). Claimant disputes Plaintiff's contentions and asserts that four thousand dollars ($4,000.00) of the funds used to purchase the Defendant Property was paid and/or given to her son, Jarvis Havior, on two separate occasions by her, and the continued monthly payments under the installment contract with Nissan Motor Acceptance Corporation (“NMAC”) do not constitute proceeds traceable to an exchange or sale of a controlled substance. However, the Parties wish to compromise and settle this matter without incurring the time and expense of additional litigation or discovery; therefore, the Parties hereby state and agree as follows:
1. On October 12, 2021, Plaintiff filed a Verified Complaint for Forfeiture [Doc. 1] against the Defendant Property in the above-captioned case pursuant to 21 U.S.C. §' 881(a)(6) and 881(a)(4), seeking the civil forfeiture in rem of the Defendant Property described as one (1) 2018 Audi, Model: Q7 Prestige, VIN: WA1VAAF74JD029812. On Plaintiff's request, a Warrant of Arrest In Rem was issued [Doc. 2], and the Defendant Property was taken into the custody of the United States Marshals Service (“USMS”) on October 29, 2021 [Doc. 5].
2. Plaintiff provided proper notice of this action to the Claimant and all other potential claimants [Doc. 4]. Plaintiff also published notice of this action as required by law [Doc. 8].
3. On December 3, 2021, Claimant filed a timely Verified Claim [Doc. 6], though her counsel of record, C. Brian Jarrard, Esq., asserting an interest in the Defendant Property. A text Notice of Deficiency was entered by the court clerk because the document was not text searchable. On December 7, 2021, Claimant James' Verified Claim [Doc. 7] was re-filed. In addition, on December 23, 2021, Claimant properly filed a Verified Answer and Defensive Pleadings [Doc. 9].
4. In her Claim [Doc. 7], James states that she made monthly payments of $169.03 on the Defendant Property since the time of the purchase and monthly insurance payments of $192.61 to State Farm. Id. at ¶ 5. James also stated she had paid and/or given her son $2,000.00 on two separate occasions toward the contemplated future purchase of a more suitable vehicle. Id. at ¶ 6. In preliminary responses to the Plaintiff's discovery requests, James clarified that the funds given to her son were a gift and did not expect to be paid back.
5. No other claims, motions or answers have been filed as to the Defendant Property, and the time to do so has expired.
6. On October 10, 2023, the United States and Claimant filed a Stipulation for Compromise Settlement Agreement and Release of Claims [Doc. 23] as to the Defendant Property. As part of the agreement, the United States stipulated that upon entry of a consent order of forfeiture and judgment, less any debt owed to the United States, any agency of the United States, or any other debt in which the United States is authorized to collect, the United States would not contest payment to Claimant from the proceeds of the sale of the Defendant Property, in the total amount of seven thousand, seven hundred twenty-three dollars and thirteen cents ($7,723.13), plus any additional principle and interest payments paid by Claimant to NMAC from September 8, 2023, through the date of the entry of a consent order of forfeiture and judgment.
7. Accordingly, on October 10, 2023, the United States filed a Motion for Entry of Consent Order of Forfeiture [Doc. 24]. The Court entered its Consent Order of Forfeiture [Doc. 25] on October 18, 2023, and the Judgment [Doc. 26], was entered on November 15, 2023.
8. In accordance with the Consent Order of Forfeiture [Doc. 25] and Judgment [Doc. 26] the USMS sold and liquidated the Defendant Property. See Doc. 27. The USMS liquidated the Defendant Property in the most commercially feasible manner as determined by the USMS in its sole discretion, and sold the Defendant Property at a price no less than the amount that would ensure payment to Claimant James in full even after payment of expenses of custody and sale incurred by the USMS.
9. After entry of the Consent Order of Forfeiture [Doc. 25] and Judgment [Doc. 26], vesting clear title of the Defendant Property to the United States, NMAC advised that if Claimant discontinued to make lien payments, her credit would be affected. Based on NMAC's representation, Claimant continued to make payments on the vehicle up to the present date.
10. The Stipulation for Compromise Settlement Agreement and Release of Claims [Doc. 23] entered between the Parties and the Consent Order of Forfeiture [Doc. 25] did not provide for any additional principle or interest payments after the entry of the Judgment [Doc. 26], which was the date the Defendant Property was vested and titled to the United States.
NMAC submitted a petition for remission and/or mitigation in the administrative forfeiture action. The final determination on petition for remissions for judicially forfeited assets rests with the Chief of the Money Laundering and Asset Forfeiture Recovery Section (“MLARS”).
The USMS also ensured that if NMAC's petition for remission and/or mitigation is granted by MLARS, that the lienholder's balance may be satisfied in full.
THEREFORE, this Amended Stipulation Agreement is entered into between the Parties pursuant to the following terms and conditions:
1. The Parties stipulate that Claimant James may have an ex post facto interest in the Defendant Property as she has continued to make payments to the lienholder (NMAC), and that any violations of Title 21, United States Code, Sections 881(a)(6) and (a)(4) involving the Defendant Property leading to its seizure occurred without the express knowledge of the Claimant, who did not know, or was possibly without cause to believe that the Defendant Property was subject to forfeiture.
2. The Plaintiff agrees that upon entry by the Court of a renewed consent order of forfeiture and judgment, and after payment of any outstanding expenses of custody and sale previously incurred by the USMS, Plaintiff will not contest payment to Claimant James in the amount of seven thousand, seven hundred twenty-three dollars and thirteen cents ($7,723.13), plus any additional principal and interest payments paid by Claimant to NMAC from September 8, 2023, through the date of final payment to Claimant by the USMS, less any debt owed to the United States, any agency of the United States, or any other debt in which the United States is authorized to collect (hereinafter referred to as the “Payment”).
3. The Parties agree that the Payment to Claimant will be made by the USMS through her counsel of record, C. Brian Jarrard, Esq., Jarrard Law Group, LLC, 4108 Arkwright Road, Suite 2, Macon, Georgia 31210.
4. Claimant waives any further right or entitlement to challenge any petition for remission or mitigation, any order of forfeiture or other disposition of this case on appeal or otherwise.
5. Upon receipt of the Payment, Claimant expressly agrees to hold harmless, release, and forever discharge the United States, its officers, agents, attorneys, servants, and employees, from any and all actions, causes of actions, suits, proceedings, debts, dues, contracts, judgments, damages, claims, or demands whatsoever in law or equity which Claimant, her successors, or assignees, ever had, now have, or may have, whether known or unknown, arising from and in connection with the seizure and forfeiture of the Defendant Property.
6. Claimant understands and agrees that the United States reserves the right to void the settlement agreement if, before Payment, the United States Attorney obtains new information indicating that the Claimant was not the payor of the payments made to NMAC under the Retail Installment Sale Contract. The United States shall promptly notify the Claimant of any such action.
7. Claimant agrees to execute further documents, to the extent necessary, to convey clear title to the United States and to implement further the terms of this Amended Stipulation Settlement.
8. This Amended Stipulation Settlement shall not affect any federal income tax liability of Claimant which may arise.
9. The Plaintiff and the Claimant agree to bear their own costs and fees pursuant to 28 U.S.C. § 2465, including any costs under 28 U.S.C. § 2412.
10. The release of the Payment to Claimant James pursuant to this Amended Stipulation Settlement is contingent upon the court's entry of a renewed consent order of forfeiture and judgment to the United States. The terms of this Amended Stipulation Settlement shall be subject to approval by the United States District Court and any violation of any terms and conditions shall be construed as a violation of an order of the court.
11. In making this Amended Stipulation Settlement, no party relies on any statement or representation, oral or otherwise, made by an opposing party which contradicts the terms of this Amended Stipulation Settlement. The terms of this Amended Stipulation Settlement are contractual and are binding upon and inure to the benefit of the parties to the Amended Stipulation Settlement and to their heirs, assignees, successors, and representatives.
THEREFORE, for the foregoing reasons, the Parties jointly request the Court to enter a renewed Consent Order of Forfeiture with regard to the Defendant Property forfeiting the 2018 Audi vehicle and ordering the release of the agreed upon Payment to Claimant through her counsel of record.
I, Celena James, Claimant, have entered into this Amended Stipulation Agreement freely and voluntarily, without coercion, duress or undue influence. I have discussed this Amended Stipulation Agreement with my attorney, C. Brian Jarrard, Esq., and I fully understand it and agree to its terms.
CELENA JAMES CLAIMANT
I, C. Brian Jarrard, Esq., counsel for Claimant, have received a copy of this Amended Stipulation Agreement and have reviewed it with Celena James. To the best of my knowledge and belief, Claimant understands the terms of the Amended Stipulation Agreement and has freely and voluntarily entered into this Amended Stipulation Agreement.