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United States v. $34, More or Less, In U.S. Currency

United States District Court, S.D. Alabama, Southern Division

February 9, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
$34, 796.49, more or less, in U.S. Currency, One Taurus.45 caliber handgun, Serial Number NQE77433, One Taurus.38 caliber revolver, Serial Number TE 3600WITH, and One Smith & Wesson.40 caliber pistol, Serial Number RAT4545, Defendants.

ORDER

WILLIAM H. STEELE, Chief District Judge.

This matter comes before the Court on claimant Jeffery Tubbs' Motion to Dismiss (doc. 14). The Motion has been briefed.

I. Background.

On December 4, 2014, the Government filed its Verified Complaint for Forfeiture In Rem (doc. 1) against the following in rem defendants: $34, 796.49, more or less, in U.S. Currency; One Taurus.45 caliber handgun, Serial Number NQE77433; One Taurus.38 caliber revolver, Serial Number TE 3600WITH; and One Smith & Wesson.40 caliber pistol, Serial Number RAT4545. The Complaint specified that this civil forfeiture action was brought against the defendant currency to enforce 21 U.S.C. § 881(a)(6) (providing for civil forfeiture of money that constitutes proceeds of a violation of the Controlled Substance Act) and 18 U.S.C. § 981(a)(1)(C) (providing for civil forfeiture of property that constitutes proceeds of an offense involving theft, conversion or sale of public money, vouchers or other things of value to the United States), among other provisions. (Doc. 1, ¶¶ 1-4.) Also by its terms, the Complaint was brought against the defendant firearms to enforce 21 U.S.C. § 881(a)(11) (providing for civil forfeiture of firearms used to facilitate the sale or possession of controlled substances) and 18 U.S.C. § 924(d)(1) (providing for civil forfeiture of firearms involved or used in violations of § 922(g)(3), which prohibits unlawful users of controlled substances from possessing firearms). ( Id., ¶¶ 5-6.)

As filed, the Complaint was neither conclusory nor vague; to the contrary, the Government's pleading set forth more than six pages of particularized factual allegations, describing the seizure of the in rem defendants in Marion, Alabama, as well as the factual grounds for the Government's contention that defendants are subject to civil forfeiture pursuant to the above-referenced statutes. ( Id., ¶¶ 10-26.) The Complaint alleged that federal subject matter jurisdiction lies pursuant to 28 U.S.C. § 1345 (inasmuch as this action was commenced by the Government) and 28 U.S.C. § 1355(a) (inasmuch as this action is one for forfeiture in rem ). With respect to venue, the Complaint relied on 28 U.S.C. § 1355(b)(1)(A), and asserted that acts or omissions giving rise to the forfeiture took place in this district.

On January 5, 2015, Jeffery Tubbs filed a Claim to Property Seized (doc. 10), in which he claimed a 100% ownership interest in two of the in rem defendants in this case, to-wit: the $34, 796.49, more or less, in U.S. Currency; and the Taurus.45 caliber handgun, Serial Number NQE77433. Eight days later, Tubbs filed a Motion to Dismiss (doc. 14), in which he sought dismissal of the Complaint as it relates to the defendant U.S. Currency on grounds of lack of subject matter jurisdiction (based on untimeliness of the Complaint), failure to state a claim, lack of in rem jurisdiction, and improper venue. The Government opposes the Motion.

II. Analysis.

A. Timeliness Objection.

Tubbs' principal ground for moving for dismissal is his contention that the Government did not file the Complaint in a timely manner. On that point, Tubbs shows that he mailed a claim of ownership concerning the $34, 796.49 in U.S. Currency to the U.S. Secret Service Deputy Director of Investigations via UPS Next Day Air on September 2, 2014. (Doc. 14, Exh. A, at 4-9.) Significantly, UPS tracking information confirms delivery of this mailing to the designated address on Wednesday, September 3, 2014, at 9:58 a.m. (Id. at 10.)[1] The Government filed its Complaint for Forfeiture In Rem on Thursday, December 4, 2014, exactly 92 days after delivery of Tubbs' claim to the Secret Service offices in Washington, DC.

In his Motion to Dismiss, Tubbs maintains that the interval preceding the Government's filing of the Complaint was excessive under applicable law. Both sides concur that this civil forfeiture action is governed by 18 U.S.C. § 983 (part of the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA")), which provides in pertinent part as follows:

" Not later than 90 days after a claim has been filed, the Government shall file a complaint for forfeiture in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims or return the property pending the filing of a complaint, except that a court in the district in which the complaint will be filed may extend the period for filing a complaint for good cause shown or upon agreement of the parties."

18 U.S.C. § 983(a)(3)(A) (emphasis added). The statute further provides that if the Government does not file a civil forfeiture complaint or return the property as provided in § 983(a)(3)(A), then "the Government shall promptly release the property... and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense." 18 U.S.C. § 983(a)(3)(B). Quite simply, Tubbs' position is that (i) the Government failed to file the civil forfeiture complaint within the 90-day period specified in § 983(a)(3)(A); and (ii) the Government is therefore bound by § 983(a)(3)(B) to release the defendant U.S. Currency and relinquish its efforts to effect civil forfeiture of same.

In its Response, the Government counters that the Complaint was filed within the requisite 90-day period. To craft such an argument, the Government disregards the September 3, 2014 delivery date of Tubbs' claim (as shown in the UPS tracking data), and instead posits that the 90-day clock commenced running on Friday, September 5, 2014, when Tubbs' claim "was received by [the Secret Service] Asset Forfeiture Division." (Doc. 19, at 2.)[2] The Government proceeds to explain in detail why the time period from September 5, 2014 to December 4, 2014 does not exceed 90 days. (Id. at 4-6.)

That's all well and good, but the Government's Response glosses over the fundamental premise underlying its computations ( i.e., the use of September 5, rather than September 3, as a start date for the 90-day clock under § 983(a)(3)(A)). Moreover, while Tubbs' Reply (doc. 20) lambasts the Government for selecting September 5 as a starting point instead of September 3, Tubbs offers neither authority nor legal argument in support of his proffered September 3 start date. The question, quite simply, is this: Does the 90-day deadline prescribed by § 983(a)(3)(A) for the Government to file a civil forfeiture complaint commence running with the delivery of the claim to the proper agency's ...


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