Opinion
Civil Action No. 5:06-cv-198 (HL).
May 10, 2007
DONALD L. JOHSTONO ASSISTANT UNITED STATES ATTORNEY GEORGIA BAR NO. 397015 UNITED STATES ATTORNEY'S OFFICE Macon, Georgia.
ORDER
The Court hereby vacates its Order of March 29, 2007 (Doc. 32). In lieu of that Order, the Court adopts the Consent Order proposed by the parties (Doc. 33) and attached hereto. By adopting this Consent Order, the Court necessarily endorses the Compromise Settlement and Release of Claims prepared by the parties and also attached to this Order. As reflected in the parties' Consent Order, this action is dismissed without costs other than those due this Court. Based on the foregoing, this case is dismissed with prejudice.
SO ORDERED
CONSENT ORDER
The parties have executed and presented to the Court a Stipulation for Compromise Settlement and Release of Claims which is attached hereto and made a part of this Order, in which they agreed that $6,500.00 of the defendant property shall be forfeited to the United States and the remainder released to Claimant Green. Accordingly, the Court hereby makes the following findings of fact and conclusions of law:1. This Court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1345 and 1355, and venue is proper pursuant to 28 U.S.C. § 1395.
2. The United States has furnished due and legal notice of these proceedings as required by law. All persons known to the United States to have a possible interest in the defendant property have received actual notice and service of summons, complaint, and warrant for arrest in this action
3. Claimants Roler and Green filed Claims on July 12, 2006, and filed Answers on August 18, 2006, asserting their interest in Defendant Property, and no other persons or entities have filed an answer in this action. The time for filing claims and answers has now expired.
4. There is sufficient evidence to warrant a conclusion, by a preponderance of evidence standard, that the defendant property is subject to forfeiture in accordance with 21 U.S.C. § 881(a)(6), 31 U.S.C. § 5317(c)(2), and/or 18 U.S.C. § 981(a)(1)(A).
THEREFORE, IT IS HEREBY ORDERED THAT:
1. All right, title, and interest of Elinor Green in $3,200.00 of the defendant property is hereby forfeited to the United States;
2. All right, title, and interest of Roler Ofer in $3,300.00 of the defendant property is hereby forfeited to the United States;
3. All other right, title, and interest in $6,500.00 of the defendant property is hereby forfeited to and vested in the United States, which shall have clear title to this property and may warrant good title to any subsequent transferee;
4. The United States Customs Border Protection or his authorized designee shall dispose of this property in accordance with the law; and
5. The Customs Fines, Penalties and Forfeiture Officer for the United States Customs Border Protection shall issue a check in the amount of $15,000.00, payable jointly to Elinor Green and Justin W. Chaney, Esq., Attorney at Law, 500 Commerce Plaza, 755 Commerce Drive, Decatur, Georgia 30030, and forward the same to the United States Attorney for the Middle District of Georgia, for distribution to Claimant.
6. Pursuant to 28 U.S.C. § 2465, no parties shall be entitled to costs, including any costs under 28 U.S.C. § 2412, nor shall the person or persons who made the seizure of the defendant property, nor any attorney, agent, or employee of the United States, be liable to suit or judgment on account of the seizure of the defendant property or prosecution of the instant forfeiture action, there being reasonable cause shown for the seizure.
SO ORDERED.
STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE OF CLAIMS
This Stipulation for Compromise Settlement and Release of Claims is made and entered into between Plaintiff, United States of America, Claimants Elinor Green and Ofer Roler (collectively hereinafter referred to as "Claimants"), and Claimants' counsel, Justin W. Chaney, Esquire. Plaintiff and Claimants wish to compromise and settle this matter without incurring the time and expense of additional litigation or discovery, therefore, the parties hereby agree as follows:
1. Plaintiff filed this action on June 12, 2006 pursuant to 18 U.S.C. § 981(a)(1)(A), 21 U.S.C. § 881(a)(6), and 31 U.S.C. § 5317(c)(2) seeking the civil forfeiture in rem of the defendant property. On Plaintiff's request, a warrant of arrest issued and the Defendant Property was taken into the custody of the United States Customs and Border Protection.
2. Plaintiff provided proper notice of this action to Claimants and all other potential claimants. Claimants filed Claims on July 12, 2006, and filed Answers on August 18, 2006, asserting their interest in Defendant Property.
3. After a preliminary investigation, Plaintiff contends that it has evidence to establish the following:
a) that Defendant Property constitutes a traceable monetary instrument of more than $10,000.00, which was transported into the United States with the intent to evade the currency reporting requirements in violation of 31 U.S.C. §§ 5316 and 5332, and is therefore subject to forfeiture pursuant to 31 U.S.C. § 5317(c)(2);
b) that Defendant Property constitutes proceeds traceable to the exchange or sale of a controlled substance in violation of 21 U.S.C. § 801 et seq. and is, therefore, subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6); and
c) that Defendant Property constitutes the proceeds of some form of unlawful activity and was involved in a financial transaction with the intent to promote the carrying on of a specified unlawful activity, to-wit: buying, selling or otherwise dealing in fraudulent identification documents, in violation of 18 U.S.C. § 1028, and is therefore, subject to forfeiture pursuant to 18 U.S.C. § 981(a)(1)(A).
Claimants acknowledge Plaintiff could present some evidence to support these theories of forfeiture. At trial, Claimants would challenge this evidence but enter into this agreement rather than continue to litigate these issues.
4. Claimants waive any further right or entitlement to challenge any order of forfeiture or other disposition of this case on appeal or otherwise. Claimants agree that based on the totality of the circumstances surrounding the investigation and seizure of the defendant property, all agents of the State of Georgia, or any locality within the state, and all federal agents, including agents of the United States Customs and Border Protection acted reasonably at the time of seizure of the defendant property and at all times subsequent thereto.
5. Claimants expressly agree 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 Claimants, their successors, or assigns, 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. This agreement shall not effect any federal income tax liability of Claimants which may arise.
7. Pursuant to 28 U.S.C. § 2465, neither party shall be entitled to costs.
8. In making this stipulation, no party relies on any statement or representation, oral or otherwise, made by an opposing party which contradicts the terms of this agreement. The terms of this stipulation are contractual and are binding upon and inure to the benefit of the parties to the stipulation and to their heirs, assignees, successors, and representatives.
THEREFORE, for the foregoing reasons, the Parties jointly request the Court to enter a Consent Order forfeiting $3,300.00 of Claimant Roler's interest and $3,200.00 of Claimant Green's interest in the defendant property to Plaintiff, and releasing the balance of $15,000.00 to Claimant Green and her counsel.