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United States v. $32

United States District Court, D. Kansas

March 21, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
$32, 100 IN UNITED STATES CURRENCY, More or less, Defendant, AND SALVADOR FRANCO, Claimant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         This is a civil forfeiture action arising out of the seizure of $32, 100.00 in United States currency on March 24, 2016. The Government filed a verified complaint against the property alleging that it is subject to forfeiture under 21 U.S.C. § 881(a)(6). In response to this complaint, claimant Salvador Franco filed a Motion to Dismiss (Doc. 10). Because the Court finds that the complaint meets the heightened pleading requirement under the Supplemental Rules, the Court denies Franco's motion.

         I. Factual and Procedural Background

         The Government's verified complaint for forfeiture is supported by the affidavit of Scott Proffitt, Task Force Officer with the Drug Enforcement Administration (“DEA”). Proffitt's affidavit provides as follows. On or about March 24, 2016, Kansas Highway Patrol (“KHP”) Trooper Rodney Evinger made contact with the occupants of a parked 2007 Chevy Impala with Nevada registration at the westbound rest area on I-70 near milepost 224 in Kansas. The vehicle's occupants were later identified as Franco and Liliana Ramirez. Franco initially indicated that they were traveling from an unknown city in Missouri to Henderson, Nevada.

         During the event, a certified drug detection dog alerted to a known controlled substance being emitted from the car. KHP Trooper Rohr searched the vehicle and found two vacuum-sealed plastic bags under the rear seat containing $32, 100.00 in U.S. currency rubber banded into bundles. Ramirez then stated that she and Franco were on a trip to St. Louis to visit Franco's cousin, who just had a baby named “Jovanna.” Ramirez said that she was unaware of the currency, that it was not hers, and that it appeared suspicious to her. Ramirez later signed a disclaimer to the currency.

         Franco stated that he and Ramirez were on a trip to see his cousin, who just had a baby named “Christian.” When asked if the baby was known by any other name, Franco said no. According to Franco, all of the currency was his. He saved it from working, and even though he has a bank account, he keeps his money under his bed at home.

         A review of Ramirez's cellular phone showed several photographs of marijuana and large amounts of currency. A certified drug detection canine later alerted to the odor of controlled substances emitting from the currency.

         On April 14, 2016, United States Magistrate Judge Birzer found that probable cause existed for the federal seizure of the $32, 100.00 and issued a seizure warrant in parallel case no. 16-MJ-6047-GEB. The warrant was executed and the currency was transferred from KHP custody to the U.S. Marshals Service. On August 31, 2016, the Government filed a verified complaint against the currency. About three weeks later, after having reviewed the complaint and supporting affidavit, this Court found that probable cause existed that the defendant currency constitutes money furnished or intended to be furnished in exchange for a controlled substance, or constitutes proceeds traceable to such an exchange, or was used or intended to be used to facilitate one or more violations of 21 U.S.C. § 886(a). Notice of the action was then given to all known and unknown potential claimants. Franco filed a judicial claim to the currency on October 4, 2016. Three weeks later, Franco filed a Motion to Dismiss. The Government responded to the motion, and Franco did not file a reply. Therefore, the motion is ripe for the Court's consideration.

         II. Legal Standard

         This is an action for civil forfeiture in rem, as to which the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions apply.[1] Claimant brings this motion under Supplemental Rule G(8)(b), which allows a claimant with standing to move to dismiss a forfeiture action under Federal Rule of Civil Procedure 12(b)(6).[2] Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief may be granted.”[3] “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.”[4] All well-pleaded facts in the complaint are assumed to be true and are viewed in the light most favorable to the plaintiff.[5] Allegations that merely state legal conclusions, however, need not be accepted as true.[6]

         The Supplemental Rules impose a heightened pleading requirement, which a forfeiture complaint must meet to survive a Rule 12(b)(6) motion.[7] Specifically, Supplemental Rule G(2)(f) requires the complaint to “state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.” This particularity requirement is “one part of the process which guards against the improper use of [] seizure proceedings.”[8] It is “subject to the general standard that the complaint sufficiently notify the defendant of the incident in dispute and afford a reasonable belief that the claim has merit.”[9]

         III. Analysis

         Franco argues that dismissal is appropriate because the Government's complaint does not satisfy the heightened pleading requirement of Supplemental Rule G(2)(f). Franco claims that the complaint contains “virtually no factual allegations” to support a reasonable belief that the Government will be able to meet its burden of proof at trial. The Court disagrees.

         The Government is seeking forfeiture under 21 U.S.C. § 881(a)(6). Under that section, money that is “furnished or intended to be furnished by any person in exchange for a controlled substance, ” “traceable to such an exchange, ” or “used or intended to be used to facilitate any violation of this subchapter” is subject to forfeiture to the United States.[10] The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), 18 U.S.C. § 983(c), sets forth the Government's burden of proof in a civil forfeiture action. Under CAFRA, it is the Government's burden to show by a preponderance of the evidence that forfeiture applies.[11] Although the Government must meet this burden at trial, it is not required to meet it at the pleadings stage.[12] Both CAFRA and the Supplemental ...


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