United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE.
matter is before the court on Claimant Troy Tompkins'
motion for summary judgment (Doc. 17.) The United States has
filed a response (Doc. 18.) No. reply was filed within the
time permitted by rule. Accordingly, the matter is ripe for
decision. For the reasons stated herein, Claimant's
motion (Doc. 17) is DENIED.
government alleges that on February 12, 2018, following a
traffic stop, the Kansas Highway Patrol seized $64, 480.00 in
United States currency from a vehicle driven by Troy Tompkins
in Kearney County, Kansas. (Doc. 1 at 2.)
February 26, 2018, U.S. Magistrate Judge Kenneth Gale issued
a seizure warrant for the $64, 480.00 and other property,
based upon a finding of probable cause that the property was
subject to forfeiture pursuant to 21 U.S.C. §§ 853
and 881(a)(6). See In re Approximately $64, 480.00 in
United States Currency, et al., D. Kan. No.
18-M-6036-01-KGG (Doc. 2.)
8, 2018, the United States initiated the instant judicial
civil forfeiture action by filing a complaint. (Doc. 1.) The
complaint alleged the Defendant property is subject to
forfeiture under 21 U.S.C. § 886(a)(6) because it
constitutes: 1) money furnished or intended to be furnished
in exchange for a controlled substance, in violation of the
Controlled Substances Act; 2) proceeds traceable to such an
exchange; or 3) money used or intended to be used to
facilitate a violation of the Controlled Substances Act.
(Id. at 3.) A declaration attached to the complaint
described the circumstances allegedly supporting forfeiture.
(Id. at 6-7.) After reviewing these materials, the
court found probable cause to believe the Defendant property
is subject to forfeiture and, on June 12, 2018, it issued a
warrant of arrest in rem for the property. (Doc. 3.)
October 20, 2018, Tompkins filed a motion for return of the
property, citing Fed. R. Crim. P. 41(g), and arguing that
because criminal charges against him had been dropped,
“the government no longer has any legitimate reason to
continue its hold on the property….” (Doc. 10 at
3.) On November 20, 2018, the court denied that motion,
noting that Fed. R. Crim. P. 41(g) has no application in this
civil proceeding, and it directed Tompkins to file a claim if
he was asserting an interest in the Defendant property. (Doc.
14.) Tompkins filed his claim on December 1, 2018, asserting
that the property was no longer subject to forfeiture because
the charges against him had been dismissed. (Doc. 15 at 2.)
He further asserted that Plaintiff had not filed its
complaint within the 90-day period provided for in 18 U.S.C.
§ 983(a)(3)(A). (Id. at 2-3.) The claim prayed
for return of the Defendant property. (Id. at 3.)
Motion for summary judgment
Claimant's current motion is labeled as one for summary
judgment, it does not contain a statement of uncontroverted
facts, and it appears to seek dismissal under Fed.R.Civ.P.
12(b)(6) for failure to state a claim upon which relief can
be granted. (See Doc. 15 at 2.) Under Rule 12(b)(6),
the issue is whether the complaint states sufficient facts to
state a claim to relief that is plausible on its face.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 1974 (2007)).
motion asserts that Plaintiff was required to file its
complaint for forfeiture “within 90 Days of filing its
claim.” (Doc. 17 at 1) (citing 18 U.S.C. §
983(a)(3)(A)). Claimant argues that Plaintiff “made
claim by SEIZURE WARRANT on February 26, 2018” but did
not file its complaint until 102 days later, on June 6, 2018.
(Id.) Claimant further argues Plaintiff cannot meet
its burden of proof because criminal charges against him have
now been dismissed. (Id. at 2.) Claimant
accordingly seeks return of the Defendant property and
summary judgment in his favor. The court finds these
arguments are unavailing.
first argument is based on a misreading of 18 U.S.C. §
983(a)(3)(A). That section provides in part that “[n]ot
later than 90 days after a claim has been filed, the
Government shall file a complaint for
forfeiture….” The “claim” referred
to is not one by the government, as Claimant suggests, but by
“any person claiming property seized in a nonjudicial
[i.e., administrative] civil forfeiture
proceeding….” Id., § 983(a)(2)(A).
In other words, the government's complaint had to be
filed no later than 90 days after Claimant (or some other
person) made a claim to the property in an administrative
(agency) forfeiture proceeding. But Claimant does not allege
or cite evidence that he submitted any such administrative
claim. The government asserts that it never initiated an
administrative forfeiture, and that “[n]o person,
including [Claimant], ever filed a claim with DEA because
there was no DEA administrative proceeding.” (Doc. 18
at 3.) Accordingly, Claimant has not shown an entitlement to
judgment based on the 90-day time limit in §
second argument is based on a misunderstanding of the
requirements for civil forfeiture under 21 U.S.C. §
881(a)(6). The dismissal of criminal charges against Claimant
does not preclude the government's claim for civil
forfeiture. The government “is not required to show
that the claimant was convicted of a crime related to the
seized property” and, likewise, a “dismissal of
criminal charges does not affect the Government's ability
to pursue a civil forfeiture action, even if the civil
forfeiture arises from the same activity.” United
States v. $12, 900 in U.S. Currency, 803 F.Supp. 1459,
1465 (S. D. Ind. 1992) (citations omitted.) See also
United States v. Sandini, 816 F.2d 869, 872 (3rd Cir.
1987) (in a civil forfeiture, “[t]he innocence of the
owner is irrelevant - it is enough that the property was
involved in a violation to which forfeiture attaches.”)
THEREFORE ORDERED this 20th day of February, 2019, that
Claimant's Motion for ...