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United States v. $46

United States District Court, Tenth Circuit

December 17, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
$46, 000.25 IN UNITED STATES CURRENCY, more or less, Defendant.

MEMORANDUM AND ORDER

Kathryn H. Vratil, United States District Judge.

This is a civil forfeiture action which arises from the seizure of $46, 000.25 in United States currency on April 25, 2012, at milepost 189 on 1-70 in Russell County, Kansas. On May 22, 2012, the government filed a civil complaint against the defendant property, alleging that the money constitutes drug proceeds and is forfeitable under 21 U.S.C. § 881(a)(6). Claimant Sangtae Chang contends that he lawfully obtained the currency and that it is not subject to forfeiture. This matter comes before the Court on the United States' Motion For Summary Judgment (Doc. #52) filed November 1, 2013. For reasons set forth below, the Court finds that the motion should be sustained.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co.. 11 F.3d 1535, 1538-39 (10th Cir. 1993). A "genuine" factual dispute is one on which the jury could reasonably find for the nonmoving party, and requires more than a mere scintilla of evidence. Liberty Lobby, 477 U.S. at 252. A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Id. at 248.

The moving party bears the initial burden of showing that there are no genuine issues of material fact. CelotexCorp. v. Catrett 477 U.S. 317. 322-23 (1986); Justice v. Crown Cork& Seal Co.. 527 F.3d 1080, 1085 (10th Cir. 2008). Once the moving party meets its burden, the burden shifts to the nonmoving party to show that a genuine issue remains for trial. Nat'l Am. Ins. Co. v. Am. Re-Ins. Co.. 358 F.3d 736, 739 (10th Cir. 2004); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). As to these matters, the nonmoving party may not rest on the pleadings but must set forth specific facts. Fed.R.Civ.P. 56(e)(2); Matsushita, 475 U.S. at 586-87; Justice, 527F.3dat 1085. Conclusory allegations not supported by evidence are insufficient to establish a genuine issue of material fact. Jarvis v. Potter, 500 F.3d 1113, 1120 (10th Cir. 2007); see Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996).

When applying this standard, the Court must view the factual record in the light most favorable to the party opposing the motion for summary judgment. Duvall v. Ga.-Pac. Consumer Prods., LP., 607 F.3d 1255, 1260 (10th Cir. 2010); see Ricci v. DeStefano, 557 U.S. 557, 586 (2009). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

Here, claimant has not filed a timely response, and plaintiff s motion is therefore unopposed. Under D. Kan. Rule 7.4(b), a party who fails to file a responsive brief or memorandum within the time specified waives the right to later do so, and the Court will consider and decide the motion as uncontested. Ordinarily, the Court will grant the motion without further notice. Id. A party's failure to respond to a summary judgment motion, however, is not by itself a sufficient basis on which to enter judgment. Reed v. Bennett 312 F.3d 1190, 1195 (10th Cir. 2002). Rather, the Court must determine whether judgment for the moving party is appropriate under Fed.R.Civ.P. 56. Id. The Court therefore accepts as true all material facts asserted and properly supported in the summary judgment motion. Id; see Ellibee v. Hazlett No. 03-3023-JAR, 2006 WL 3050801, at *2 (D. Kan. Oct. 23, 2006) (pro se litigants governed by same procedural rules as other litigants; on summary judgment, court accepts as true facts which pro se litigant does not controvert). Because claimant proceeds pro se, the Court has diligently searched the record to determine whether genuine issues of material fact preclude summary judgment. See Jackson v. Yellow Logistics, Inc., 24 F.Supp.2d 1206, 1209 (D. Kan. 1998).

Facts

The following facts are uncontroverted.

On April 25, 2012, Kansas Highway Patrol Trooper Jerrad Goheen stopped a 2011 Dodge passenger car for a traffic violation on 1-70 near milepost 189 in Russell County, Kansas. Trooper Goheen made contact with the driver, Sangtae Chang, the sole occupant. Chang gave Trooper Goheen a Tennessee driver's license and rental paperwork for the car. Trooper Goheen gave Chang a traffic citation and returned his license and rental documents. Chang said that he was driving to attend a fence building convention and gamble with friends in Reno, Nevada. Chang stated that he was carrying about $45, 000 in the car. He said that he had borrowed the money from a bank so that he could gamble. Chang gave Trooper Goheen consent to search the car.

When Chang got out of the car, he had a cardboard box in his hand. Trooper Goheen opened the box and saw a small amount of marijuana. Trooper Goheen then opened a duffle bag from the rear seat of the car. The duffle bag contained a bank bag wrapped in clear cellophane. Inside the bank bag were 11 bundles of cash, totaling $46, 000.[1] The packaging of the money was consistent with drug trafficking. Trooper Goheen seized the currency and transported Chang to the Kansas Highway Patrol Troop D Headquarters in Hays, Kansas.

At Troop D Headquarters, Trooper Scott Walker deployed his certified narcotics detection dog, Hook, to perform a pre-sniff around a storage room. Hook did not alert, and Trooper Walker took Hook to a vehicle while Trooper Goheen placed the seized currency behind some tables in the storage room. Trooper Walker then brought Hook back to the storage room, where Hook alerted to the odor of controlled substances coming from where Trooper Goheen had placed the currency.

Task Force Officer John Rule interviewed Chang, who waived his Miranda rights. Chang told Officer Rule that he had lied to Trooper Goheen about going to a fence building conference. He said that about six weeks earlier, he had borrowed $60, 000 from the Citizens State Bank in Gallatin, Tennessee to purchase a store, but that he had spent $15, 000 of the money to buy a jet ski and vehicle.[2] He said he had also used some of the loan to pay off bills. Chang said that approximately $35, 000 of the cash seized came from the loan and the rest was profit from selling fireworks. He also told Officer Rule that he owned a fence building company in Tennessee and had earned about $60, 000 in 2011.

On his United States income tax returns for the past four years, Chang reported adjusted gross income of $4, 443 in 2012; $7, 391 in ...


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