U.S. v. Funds in the Amount of $9,800, 96 C 2614.

• Decision Date: 23 December 1996
• Docket Number: No. 96 C 2614.,96 C 2614.
• Citation: 952 F.Supp. 1254
• Parties: UNITED STATES of America v. FUNDS IN THE AMOUNT OF $9,800, Defendant.
• Court: U.S. District Court — Northern District of Illinois

952 F.Supp. 1254

UNITED STATES of America v. FUNDS IN THE AMOUNT OF $9,800, Defendant.

No. 96 C 2614.

United States District Court, N.D. Illinois, Eastern Division.

December 23, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Samuel D. Brooks, United States Attorney's Office, Chicago, IL, for U.S.

Marc William Martin, Genson, Steinback & Gillespie, Chicago, IL, for Manuel Sanchez.

MEMORANDUM AND ORDER

MORAN, Senior District Judge.

In this civil forfeiture action arising under 21 U.S.C. § 881(a)(6), the government seeks forfeiture of $9,800 which it claims was either money furnished or intended to be furnished in exchange for a controlled substance, proceeds from the sale of a controlled substance, or money used or intended to be used to facilitate narcotics trafficking. Claimant Manuel Sanchez now moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the government's complaint fails to show probable cause for the seizure. For the reasons set forth below, claimant's motion is granted without prejudice.

FACTS

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, we accept all well pled factual allegations in the complaint as true and draw all reasonable inferences from these facts in favor of the plaintiff. Travel All Over the World, Inc. v. The Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996). Read in this light, the facts are as follows.

On April 7, 1995, William Grant (Grant), Special Agent with the United States Drug Enforcement Administration (DEA), was on assignment with the O'Hare Airport Task Force Group. At approximately 6:10 p.m., an unknown cooperating individual (CI) advised Grant that Manuel Sanchez (Sanchez) was departing Chicago O'Hare International Airport aboard American Airlines flight # 1713 to El Paso, Texas. The CI further stated that Sanchez had purchased a round trip ticket, with cash, approximately thirty minutes before the scheduled departure time of 6:20 p.m.

Grant and Task Force agent Judy Martin (Martin) proceeded to Gate K-14, from which flight # 1713 was scheduled to depart. Upon arriving at the gate, Grant and Martin were informed that Sanchez had already boarded the aircraft. Upon Grant's request, an American Airlines employee boarded the plane and asked Sanchez if he would mind talking with the Task Force agents. Sanchez agreed to cooperate and exited the plane.

Sanchez emerged from the jetway carrying a black suit bag. Grant and Martin identified themselves as DEA agents and displayed their credentials to Sanchez. Sanchez agreed to speak with the agents. Sanchez produced an American Airlines round trip ticket to El Paso which was issued in his name and indicated a return date of April 17, 1995. Sanchez told the agents that he was not carrying any other forms of identification. When the agents asked Sanchez why he was going to El Paso, Sanchez replied that he was going to visit some friends.

Grant proceeded to advise Sanchez that the Task Force was conducting routine narcotics investigations and that Sanchez did not have to speak with them. He further advised Sanchez that he was not under arrest and was thus free to leave at any time. Grant then told Sanchez that he would like to ask a few more questions. Sanchez agreed. Grant then asked Sanchez if he was carrying any large amounts of money. Sanchez stated that he had about $9,000 in cash, removed a white envelope containing fifty and one hundred dollar bills from his jacket pocket, and handed the envelope to Grant. The envelope had franking, stating: "Velasquez and Sons Muffler Shop, 2335 South Western Avenue, Chicago, Illinois."

When asked where he obtained the money, Sanchez stated that he earned it working in a jewelry store. After Grant asked the name of the jewelry store, Sanchez hesitated for a moment and then stated that he did not remember. Sanchez informed Grant that the store was located on the south side of Chicago. At this point, Grant told Sanchez that he believed that the money was related to narcotics trafficking and seized the money pending further investigation. Sanchez was given a receipt for the funds, which totalled $9,800.

At approximately 7:30 p.m. that evening, Task Force agents conducted a dog sniff exercise on the seized funds. A narcotics-detector dog alerted for the presence of narcotics on the money. Grant also learned that the address of Velasquez and Sons Muffler Shop, which appeared on the seized envelope, is known for frequent drug activity. Finally, DEA records showed that Sanchez had two prior arrests for the possession of narcotics.

On the basis of this information, the United States seeks the forfeiture of funds in the amount of $9,800 under 21 U.S.C. § 881(a)(6).

DISCUSSION

In order to have a claim dismissed under Rule 12(b)(6) the moving party must meet a high standard. The purpose of a motion to dismiss is to test the sufficiency of a complaint, not it merits. Triad Associates Inc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir.1989), cert. denied, 498 U.S. 845, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). A complaint should not be dismissed for failure to state a claim "unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In order to withstand a motion to dismiss a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Gray v. County of Dane, 854 F.2d 179, 182 (7th Cir. 1988). Generally, "mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985).

A complaint for forfeiture in rem under § 881(a), however, is subject to the particularity requirement of Rule (E)(2)(a) of the Supplemental Rules for certain Admiralty and Maritime Claims (Supplemental Rules). 21 U.S.C. § 881(b). Supplemental Rule (E)(2)(a) provides:

Complaint. In actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

Courts have agreed that Rule (E)(2)(a) requires more specificity than the simple notice pleading which is required in ordinary civil cases under Rule 8(a) of the Federal Rules of Civil Procedure. United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1216 & n. 3 (10th Cir.1986). The particularity requirement is meant to ensure that a forfeiture complaint apprises potential claimants of the circumstances which support the government's seizure of property. United States v. $15,100 in United States Currency, No. 93-C-6800, 1994 WL 240516, at *2 (N.D.Ill. May 31, 1994). By apprising potential claimants of such circumstances, the forfeiture complaint enables claimants to commence an investigation of the facts and to respond with more than a general denial to the averments in the complaint. United States v. One Parcel of Real Property, 921 F.2d 370, 375 (1st Cir.1990).

It is less clear whether the particularity requirement defines the standard for evaluating the sufficiency of a forfeiture complaint on a motion to dismiss. Specifically, there is considerable confusion over the relationship between Rule (E)(2)(a)'s particularity requirement and the government's obligation under the Comprehensive Drug Abuse Prevention & Control Act of 1970 (Drug Act), 21 U.S.C. § 881, to demonstrate that probable cause exists justifying forfeiture. See, e.g. $15,100, 1994 WL 240516, at *2 (holding that the particularity requirement of Supplemental Rule (E)(2)(a) is satisfied only if the government alleges sufficient to support a probable cause finding); United States v. South Side Finance, Inc., 755 F.Supp. 791, 795 (N.D.Ill.1991) (finding that the particularity requirement and the government's obligation to demonstrate the existence of probable cause are analytically distinct tests, each of which the government must pass in order to withstand a motion to dismiss); United States v. 10652 South Laramie, No. 89-C-8064, 1990 WL 37230, at *4 (N.D.Ill. March 16, 1990) (holding that a motion to dismiss a civil forfeiture complaint is governed exclusively by Rule (E)(2)(a) which requires that the government plead "some supporting facts" showing a connection between the seized property and drug activity but not that the government allege facts sufficient to show probable cause).

In resolving this confusion, we adopt an approach which treats the government's burden to plead facts particular enough to satisfy Rule (E)(2)(a) as analytically distinct from its burden to plead facts sufficient to state a cause of action under the motion to dismiss standard. See South Side Finance, Inc., 755 F.Supp. at 795. This standard separates the government's formal obligation to plead specific information about the circumstances underlying the seizure from its substantive obligation to allege facts sufficient to support its assertion that probable cause for the forfeiture exists. In this case, while the government has pleaded facts sufficient to satisfy the requirements of Supplemental Rule (E)(2)(a), it has failed to articulate facts which would provide a reasonable basis for its claim that there is probable cause justifying the forfeiture of defendant funds.

By requiring the government to plead its claims with a specificity sufficient to allow the claimant to "commence an investigation" and "frame a responsive pleading," Supplemental Rule (E)(2)(a) was meant to establish formal pleading rules requiring more than wholly conclusory allegations that the seized property was connected with drug activity. See United States v. 1625 S. Delaware Ave., ...