U.S. v. Dempsey

• Citation: 55 F.Supp.2d 990
• Decision Date: 27 October 1998
• Docket Number: No. 1:96CR00057.,1:96CR00057.
• Parties: UNITED STATES of America, Plaintiff, v. Sammie L. DEMPSEY, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

55 F.Supp.2d 990

UNITED STATES of America, Plaintiff, v. Sammie L. DEMPSEY, Defendant.

No. 1:96CR00057.

United States District Court, E.D. Missouri, Southeastern Division.

October 27, 1998.

Curtis Poore, Cape Girardeau, MO, for U.S.

Jeffrey J. Rosanswank, St. Louis, MO, for defendant.

FINAL ORDER OF FORFEITURE

WEBBER, District Judge.

WHEREAS, on September 10, 1997, this Court entered a preliminary order of forfeiture pursuant to the provisions of Title 21, United States Code, Section 853 based upon the defendant's plea and stipulation of facts relative to sentencing regarding the total amount of currency subject to forfeiture in the amount of $37,588.80. The Government has now seized a total of $17,006.91, which is in the custody of the United States Marshals Service.

AND WHEREAS, on October 8, 15, and 22, 1997, the United States published in a newspaper of general circulation, to wit: The Daily Dunklin Democrat, notice of this forfeiture and of the intent of the United States to dispose of the property in accordance with the law and further notifying all third parties of the right to petition the Court within thirty (30) days for a hearing to adjudicate the validity of their alleged interest in the property, and,

WHEREAS, the Court has been advised of one claim filed by Genny Talbert Dempsey. For the reasons set forth below, Ms. Dempsey's claim is dismissed.

Ms. Dempsey, the former wife of the defendant, has filed a pro se petition requesting the Court to "turn over" $6,200.00 to her for unpaid child support payments and a reasonable amount of medical expenses. Pursuant to 21 U.S.C. § 853(n), third parties asserting a legal interest in forfeited property are entitled to a judicial determination of the validity of the interests they assert. However, for Ms. Dempsey to bring a claim under subsection 853(n), she must first demonstrate that she has an interest in the seized assets sufficient to give her standing to contest the forfeiture of the seized assets. See United States v. Five Hundred Thousand Dollars, 730 F.2d 1437, 1439 (11th Cir.1984) (citations omitted). Ms. Dempsey bears the burden of establishing standing. Id. If Ms. Dempsey fails to allege all the elements necessary to recover, including those relating to standing, this Court may dismiss her petition without a hearing. See e.g., United States v. BCCI Holdings, 919 F.Supp. 31, 36 (D.D.C.1996), and cases cited therein. Thus, the Court must decide whether Ms. Dempsey's petition contains all the elements necessary for her to recover.

Under Section 853(n), the Court can amend an order of forfeiture if Ms. Dempsey can demonstrate, by a preponderance of the evidence, that she

"has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property." 21 U.S.C. § 853(n)(6)(A)

Ms. Dempsey is unable to claim that the drug money forfeited by the defendant was vested in her rather than the defendant. Therefore, she must show that her own interest in such money was superior to her former husband's interest at the time of the commission of the acts which gave rise to the forfeiture of the drug money.

As to Ms. Dempsey's claim for back child support payments, her claim must fail, because she is unable to demonstrate that her interest was superior "at the time of the commission of the acts which gave rise to the forfeiture of the drug money." The Order of the Circuit Court of Dunklin County, Missouri ordering defendant to pay Ms. Dempsey $300.00 per month in child support payments was entered on March 21, 1996. According to the indictment against defendant, he was in possession with the intent to distribute methamphetamine in January of 1996. Therefore, Ms. Dempsey had no interest, in the form of child support payments,¹ in defendant's drug money at the time defendant committed the acts giving rise to the forfeiture of the drug money.

In addition, the Court does not find that Ms. Dempsey's interest in medical expenses, as well as the child support payments, were superior to the defendant's interests in the drug money. In order to determine an individual's "legal right, title, or interest," the Court is required to turn to Missouri state law. See generally United States v. Alcaraz-Garcia, 79 F.3d 769, 774 (9th Cir.1996); United States v. Certain Real Property Located at 2525 Leroy Lane, West Bloomfield, Mich., 910 F.2d 343, 347-48 (6th Cir.1990).

Under Missouri law, past due support payments owed by a former husband pursuant to a court order constitute a debt, meaning "that accrued and unpaid installments become judgments in favor of [the] former wife." Helfenbein v. Helfenbein, 871 S.W.2d 131, 134 (Mo.Ct.App. 1994) (citing Sagos v. Sagos, 729 S.W.2d 76, 79 (Mo.Ct.App.1987)). Under Missouri Revised Statute § 513.085, a person is required to levy against the subject property in order to acquire a lien on a judgment owed.² See Dugan v. Missouri Neon & Plastic Advertising Co., 472 F.2d 944, 949 (8th Cir.1973) (noting that under Missouri law, a "garnishment issued in aid of execution created a lien upon the debt owing to the judgment debtor that could not be impaired by subsequent action of others seeking the same fund"). Ms. Dempsey has not provided the Court with any evidence indicating that she filed a summons against the defendant to receive unpaid...