U.S. v. $244,320.00 in U.S. Currency, 4:03-CV-40019.

• Decision Date: 05 December 2003
• Docket Number: No. 4:03-CV-40019.,4:03-CV-40019.
• Citation: 295 F.Supp.2d 1050
• Parties: UNITED STATES of America, Plaintiff, v. $244,320.00 IN UNITED STATES CURRENCY, Defendant. George Thomas, Claimant.
• Court: U.S. District Court — Southern District of Iowa

295 F.Supp.2d 1050

UNITED STATES of America, Plaintiff, v. $244,320.00 IN UNITED STATES CURRENCY, Defendant George Thomas, Claimant.

No. 4:03-CV-40019.

United States District Court, S.D. Iowa, Central Division.

December 5, 2003.

Craig Peyton Gaumer, United States Attorney, Des Moines, IA, for plaintiff.

Maria Ruhtenberg, Des Moines, IA, Eric Honig, Honig Law Office, Marina Del Rey, CA, for claimant.

ORDER GRANTING PLAINTIFF'S MOTIONS FOR JUDGMENT ON THE PLEADINGS AND STRIKING CLAIMANT'S PLEADINGS

GRITZNER, District Judge.

This matter is before the Court on Plaintiff's Motions for Judgment on the Pleadings (Clerk's Nos. 10 and 14) and Claimant's Motion for Judgment on the Pleadings (Clerk's No. 16). An oral hearing limited to the issue of standing was held by telephone conference call on November 6, 2003. Counsel of record for the Plaintiff is Assistant U.S. Attorney Craig Peyton Gaumer; attorneys for the Claimant are Eric Honig and Maria Ruhtenberg. Based on the following, the Court grants Plaintiff's Motions for Judgment on the Pleadings. The Court strikes Claimant's claim and subsequent filings for lack of standing, thereby rendering Claimant's Motion for Judgment on the Pleadings moot.

PROCEDURAL HISTORY

The Plaintiff, United States of America ("U.S.A." or "the Government"), commenced this action by filing a Verified Complaint in Rem ("Complaint") in this Court on January 15, 2003. The action seeks forfeiture and condemnation of specific property to the use and benefit of the U.S.A., namely U.S. Currency in the amount of $244,320.00 more or less ("Defendant currency"). Forfeiture of Defendant currency is based on its involvement in violations of 21 U.S.C. §§ 846 (attempt and conspiracy) and 841(a)(1) (prohibited acts), and/or violation of 18 U.S.C. § 1960 (prohibition of unlicensed money transmitting business). The action was brought in rem by Plaintiff to condemn Defendant currency under 21 U.S.C. § 881(a)(6) (forfeitures) and 18 U.S.C. § 981(a)(1)(A) (civil forfeiture).¹

Jurisdiction over this action is proper in this Court under 28 U.S.C. §§ 1345 (United States as Plaintiff) and 1355 (fine, penalty, or forfeiture). In addition, venue is proper in the United States District Court for the Southern District of Iowa pursuant to 28 U.S.C. §§ 1355(b)(1) (fine, penalty, or forfeiture) and 1395(a), (b) (fine, penalty, or forfeiture) because the acts or omissions giving rise to the forfeiture occurred in the area covered by this district, and the property was brought into and remains within this district.

Claimant George Thomas ("Thomas") claimed and demanded restitution of the Defendant currency pursuant to Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims on February 27, 2003. Thomas claims the right to defend this action as the holder of a possessory interest in the Defendant currency. Thomas also filed an Answer to the Complaint in which he asserts several affirmative defenses.

The Government filed a Motion for Judgment on the Pleadings ("J.O.P. Motion I") on July 21, 2003, in which it reserved the opportunity to raise the question of constitutional standing at a later date. It subsequently filed a second Motion for Judgment on the Pleadings and Judgment for Plaintiff ("J.O.P. Motion II") on July 31, 2003. In J.O.P. Motion II, the Government requests that Thomas' claim be stricken for lack of jurisdiction under Article III.

Thomas has resisted the Plaintiff's motions and has filed his own Motion for Judgment on the Pleadings ("Claimant's Motion"). These motions are currently pending before the Court. Plaintiff requested oral argument,² and a hearing was conducted via telephone on November 6, 2003.

BACKGROUND FACTS

On the morning of February 20, 2002, Iowa State Patrol Trooper Ken Haas ("Trooper Haas") was on duty in a patrol car facing east on I-80 near Council Bluffs, Iowa. At or about 10:44 a.m., the radar in Trooper Haas' patrol car recorded a white GMC Yukon ("the Yukon") heading west and traveling 67 miles-per-hour (mph) in a 55 mph zone. Trooper Haas turned his patrol car around and began pursuit of the Yukon. He stopped the Yukon at approximately 10:46 a.m. The Yukon had Michigan license plates registered to George David Thomas.

Thomas John Nix ("Nix") was driving the Yukon, and Marjorie Vicari ("Vicari") was a passenger in the vehicle. Trooper Haas exited the patrol car, walked to the shoulder of the road on the passenger side of the stopped vehicle, and engaged the passengers in conversation. Trooper Haas advised Nix and Vicari that he had stopped them for speeding (67 mph in a 55 mph zone) and asked Nix for his driver's license and vehicle registration. Nix provided Trooper Haas with a Florida driver's license. Vicari was also asked for identification, which she provided.

Vicari informed Trooper Haas that she had a letter from Thomas, the owner of the Yukon. The letter, dated February 19, 2002, said, "This letter confirms permission for my Aunt Marjorie Vicari, ... to use my vehicle 2002 GMC Yukon Vehicle Number 1GKFK16Z82J136605 for moving relocation. Should you have any questions please feel free to contact me at [phone number provided]."

Nix was asked to accompany Trooper Haas to the patrol car. Nix was asked whether he had any knives or weapons on him, which he denied. Trooper Haas inquired of Nix regarding his origin and purpose of the trip. Nix stated he grew up in Michigan but currently lived in Florida. He had flown to Michigan from Florida and was headed to Las Vegas, Nevada, for a vacation that was to last three days. He further stated that Vicari was related to Thomas, he knew her because they were from the same town, and that he was a friend of her son. After the trip, he was planning on flying back to Florida.

Trooper Haas then returned to the passenger side of the Yukon to speak with Vicari. In response to questioning, Vicari stated she was on her way to Las Vegas to gamble. She said she was planning on staying for a week to ten days and would be lodging at the "Aladdin". Vicari stated Nix was a friend of her nephew and had come to Michigan from Florida to drive to Las Vegas with her.³ Vicari told Trooper Haas that she did not like to fly and this was why Nix was with her. She also stated she intended to return to Michigan after the Las Vegas trip. Later, while waiting in Trooper Haas' patrol vehicle during a search of the Yukon, Nix claimed he was on his way to Las Vegas to stay at the "Palms" and not at the "Aladdin".

After returning to his patrol car to fill out paperwork to issue Nix a speeding ticket, Trooper Haas learned that Nix had previously been stopped by law enforcement officers in Iowa, during which stop he was found to be carrying approximately $51,000 in cash. This information was received in response to an inquiry made by Trooper Haas from the radio in his patrol car. After informing Nix that he was aware of the prior stop, Trooper Haas expressed doubt to Nix about the reasons provided for the trip from Michigan to Las Vegas and sought the true reason for the trip. Nix denied there was any prior stop and was unable to offer any new reasons for the current trip.

Trooper Haas then returned to the Yukon and asked Vicari if she had any guns, alcohol, marijuana, cocaine, methamphetamine, or large amounts of cash in the car. After Vicari denied having any of these items, Trooper Haas asked her for permission to search the vehicle. Vicari expressed concerns for her safety and was told she could wait in Trooper Haas' patrol car during the search. She then asked if she had to give consent and was told that she did not. Vicari attempted to ask Nix if she should sign the consent to search form but was advised that she did not need to ask him. Vicari then proceeded to sign the form.

The search of the Yukon began at approximately 11:25 a.m., with both Vicari and Nix waiting in Trooper Haas' patrol car. By this time, Trooper Miller had arrived at the scene and assisted with the search of the Yukon. The search began at the back of the vehicle and then proceeded to the front. As the search was being conducted, Trooper John Hitchcock arrived with his canine partner, Kevin. Kevin is a canine trained to alert to controlled substances. Kevin was deployed outside the vehicle at approximately 11:25 a.m. Kevin alerted to the scent of controlled substances while outside the vehicle and was subsequently deployed inside the Yukon where he immediately alerted to the odor of narcotics, with a firm indication toward the front of the vehicle. The canine's search of the vehicle concluded at approximately 11:29 a.m.

At approximately 11:32 a.m., Nix and Vicari were advised by Trooper Haas that he was suspicious of their purported activities because they told inconsistent stories that did not make much sense, that he had learned of Nix's prior involvement with law enforcement, and that the canine alerted to the presence of narcotics during the vehicle search. Trooper Haas further advised Nix and Vicari that, based on the foregoing, the Yukon was to be taken back to the patrol post for a more safe and thorough search. A trooper drove the vehicle to the Iowa Highway Patrol Station located a short distance away.

During the search at the patrol post, Trooper Todd Bentley found several bundles of U.S. currency located under the center console of the Yukon. The bundles were vacuum sealed and totaled $244,320.00. The wrench and screwdriver used to remove the thirteen bolts and screws holding the console in place were in the pocket of the driver's seat. During a discretionary search, a drug-dog alerted to the odor of narcotics on the currency. Both Nix and Vicari disclaimed any knowledge of the currency, though neither would sign disclaimer forms.

The Defendant currency was seized and taken into custody by the Iowa State Patrol at this time.⁴ The seizure was adopted by the U.S. Drug Enforcement Agency ("DEA") on or about March 1, 2002, and the State...