City of Concord v. Robinson, No. 1:11–CV–734.

• Decision Date: 28 November 2012
• Docket Number: No. 1:11–CV–734.
• Citation: 914 F.Supp.2d 696
• Court: U.S. District Court — Middle District of North Carolina
• Parties: CITY OF CONCORD, NORTH CAROLINA, Plaintiff, v. Penny Bonita ROBINSON, Defendant.

914 F.Supp.2d 696

CITY OF CONCORD, NORTH CAROLINA, Plaintiff,

v.Penny Bonita ROBINSON, Defendant.

No. 1:11–CV–734.

United States District Court, M.D. North Carolina.

Nov. 28, 2012.

William L. Hill, James Demarest Secor, III, Frazier Hill & Fury, RLLP, Greensboro, NC, for Plaintiff.

Vernon Alexis Russell, Plummer Russell & Plummer, PLLC, Concord, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

CATHERINE C. EAGLES, District Judge.

Penny Robinson was arrested by Concord Police Department officers on drug charges, and officers seized over $17,000 from her hotel room. While her motion to return the seized money was pending in the criminal case in the Superior Court of Cabarrus County, North Carolina, the Police Department asked the Federal Bureau of Investigation if it would like to adopt the forfeiture of the money pursuant to federal law authorizing forfeiture of drug proceeds. The FBI said it would, and the City of Concord sent the money to the FBI, all with Ms. Robinson's motion still pending and without notice to the Superior Court, the state prosecutor, or Ms. Robinson.Ms. Robinson thereafter received notice of the federal forfeiture yet failed to object; the money was thus administratively forfeited to the United States. Later, when Ms. Robinson pled guilty to state charges, she asked the Superior Court to return the money to her and did not mention the federal forfeiture. The prosecutor consented, and the Superior Court so ordered. After the City brought the federal forfeiture to its attention, the Superior Court refused to set aside its order directing the City to return the money to Ms. Robinson and ruled that the City had acted illegally.

The City seeks a declaratory judgment that it behaved lawfully when it turned the money over to the FBI pursuant to federal forfeiture law and that the Superior Court had no jurisdiction to issue rulings concerning this money once it was seized by the FBI. In her counterclaim, Ms. Robinson asserts that the City acted unlawfully in turning over the money while her state court motion was pending; she asks this Court to issue a declaratory judgment to that effect and to order the money returned to her. The City has filed a motion for summary judgment. (Doc. 19.)

Ms. Robinson's failure to protect her rights in the federal administrative forfeiture proceeding and subsequent request to the state court for the return of the money certainly carries a whiff of forum shopping. Because the City was likely to get 80 percent of the money back for its internal use if the federal forfeiture was successful and would get nothing if disposition of the money was left up to the Superior Court, and because the City did not appeal the Superior Court's decision, there is the same unpleasant whiff of forum shopping around the City's conduct. Whether the City's conduct was illegal or resulted in an invalid federal forfeiture is, however, a different question, and one made more difficult to answer by the awkward procedural history of this case and related issues of state-federal comity.

The Court concludes that it has jurisdiction over this case to the extent this is a proceeding to enforce a forfeiture, but that it does not have jurisdiction to overrule the state court's decisions to the extent those decisions are based on state law. The Court further concludes that the state court exercised only in personam jurisdiction and did not exercise in rem or quasi in rem jurisdiction over the money. Finally, the Court concludes that once the federal forfeiture began, the federal courts had exclusive in rem jurisdiction over the seized money, and that thereafter the Superior Court could not order the City to return the seized money to Ms. Robinson based on violations of federal forfeiture law or on absence of federal jurisdiction. The motion for summary judgment is granted in substantial part.

I. PROCEDURAL AND FACTUAL BACKGROUND

The facts are undisputed. For ease of reference, a chronology of events in chart form is attached as an Appendix.

On February 12, 2010, defendant Penny Robinson consented to a search by law enforcement officers of a suite she occupied at the Embassy Suites Hotel in Concord, North Carolina. (Doc. 22 at ¶¶ 5, 7–8.) During the search, officers located and seized approximately 25 grams of marijuana, some digital scales, a magazine with a marijuana theme, a police scanner, a pocket television, two computers, a smoking pipe, a lock box, and $17,600 in currency. ( Id. at ¶ 10.) Ms. Robinson was charged in state court with Possession With Intent to Sell or Deliver Marijuana and Possession of Drug Paraphernalia. (Doc. 25–11 at 3, ¶ 4.)

On February 16, 2010, the Concord Police Department, through Officer Keith

Childers, began discussing with the FBI whether it wanted to initiate federal forfeiture proceedings against the money seized from Ms. Robinson. (Doc. 22–1 at 2–3.) On February 23, 2010, Ms. Robinson filed a motion for the return of seized property. (Doc. 25–4.) In the motion, she asserted that she received the $17,600 as a result of the settlement of a civil claim for the wrongful death of her daughter, and that the money was not subject to forfeiture under state law. ( Id. at 3–4.) In emails with the FBI, Officer Childers discussed Ms. Robinson's claim that the money came from a wrongful death settlement. (Doc. 22–1 at 4.) However, he did not mention the pending state court motion, and there is no evidence before the Court that he or anyone working for the City was personally aware of it until well after it was filed. ( See Doc. 22 at ¶ 19.)

Ms. Robinson was indicted on March 1, 2010. (Doc. 25–2.) On that same day, the FBI received the City's formal “Request for Adoption of State or Local Seizure” asking the FBI to adopt a forfeiture of the money seized from Ms. Robinson. (Doc. 22–2 at 4.) The FBI accepted the City's adoption request on March 4 (Doc. 25–5) and the City mailed a check to the U.S. Marshals Service on or about March 9. (Doc. 22 at ¶ 25; Doc. 25–6.) Neither Officer Childers nor the FBI informed anyone connected with the state court case about the forfeiture. The exact dates the FBI received the check and cashed it are not in the record.

On March 11, 2010, the Superior Court of Cabarrus County held a hearing on Ms. Robinson's motion for the return of seized property, which it denied without prejudice. (Doc. 25–7.) Because no evidence was presented, the Court held that it was “not inclined at this time to grant the motion without a full hearing on the underlying issues.” ( Id. at 2.)

On April 15, 2010, the FBI sent notices of forfeiture and of her right to contest the forfeiture of the money to Ms. Robinson, both at her home address and in care of her attorney in the criminal case. (Doc. 6 at 5, ¶ 15; Doc. 9 at ¶ 15; Doc. 24 at ¶ 3.) Ms. Robinson and her attorney each received this notice, but Ms. Robinson did not make any claim for the money in the administrative forfeiture proceedings. (Doc. 6 at 6, ¶ 16; Doc. 9 at ¶ 16; Doc. 24 at ¶¶ 6–7.)

Ms. Robinson pled guilty to misdemeanor drug charges on March 2, 2011. (Doc. 25–9.) An Assistant District Attorney advised the Superior Court that she believed Ms. Robinson had lawfully obtained the contested money through a civil action for the wrongful death of her daughter. ( Id. at 12.) Based on the opinion of the District Attorney's Office as well as documentation Ms. Robinson provided the Court regarding the wrongful death claim, the Superior Court ordered the money returned to Ms. Robinson. (Doc. 25–8; Doc. 25–9 at 19.) At no time was the City or the Concord Police Department a party to this proceeding. It appears that the City had not told the District Attorney about the forfeiture, nor had the District Attorney conferred with the City about the status of the money seized from Ms. Robinson. Neither Ms. Robinson nor her attorney ¹ mentioned the federal forfeiture proceedings.

On June 6, 2011, the City filed a motion seeking reconsideration of the Superior Court's order requiring the Police Department to return the money to Ms. Robinson. (Doc. 25–10.) On August 8, 2011, the Superior Court denied the motion after hearing from counsel, finding that the original seizure of the money was lawful, but that the City had acted improperly and unlawfully in “seeking a forfeiture of the funds by the Federal Bureau of Investigation and transferring the funds to the Federal Bureau of Investigation forfeiture program, without approval by the Court or District Attorney” while the defendant's motion for return of funds was pending. (Doc. 25–11 at 7.) It was undisputed that under the FBI's forfeiture adoption program, “the FBI retains 20% of the value of the seized property and the remaining 80% is returned to the Local or State Agency for use in future narcotics interdiction measures.” (Doc. 25 at 2 n. 2 (emphasis removed).) The Superior Court ordered the City to pay Ms. Robinson 80 percent of the money ($14,080) as soon as it received its local share of funds from the FBI Forfeiture Adoption Program, and to pay her the remaining 20 percent ($3,520) within 30 days of the original refund to her. ( Id. at 8–9.) In addition, the Superior Court made numerous findings concerning the actions of the City and the validity of the federal forfeiture. There is nothing to indicate that the City appealed this Order.

In September 2011, the City of Concord filed a Complaint for Declaratory Relief and Judgment in this court. (Doc. 1.) The City asked the Court to enter a judgment declaring the respective rights, responsibilities, and liabilities of the parties to this action with respect to the subject $17,600. After the City filed an Amended Complaint (Doc. 6), Ms. Robinson filed an Answer and Counterclaim, asking for similar declaratory relief. (Doc. 9.)

After the City of Concord filed a Motion for Summary Judgment (Doc. 19), the Court raised sua sponte the questions of whether it has jurisdiction in this case and, if it does,...