United States District Court, S.D. Alabama, Southern Division
ORDER AND MEMORANDUM OPINION
V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on a motion to dismiss the
petition of Loan Nguyen (“Nguyen”) seeking to
adjudicate her interest in certain personal and real property
addressed within the Court's Amended Preliminary Order of
Forfeiture (“APOF”) filed by the Government (Doc.
109), Nguyen's objection thereto (Doc. 112), and the
Government's reply (Doc. 115). Based on the following
reasons, the Government's motion is GRANTED.
husband, Manila Chicago (“Chicago”), pleaded
guilty to three counts within an indictment charging, in
Count 4, possession with intent to distribute marijuana, in
Count 5, using, carrying, possessing a firearm in relation to
and in the furtherance of a drug trafficking felony, and in
Count 11, money laundering. (Doc. 70). The Indictment also
alleged and included criminal forfeiture under 21 U.S.C.
§ 853 and 18 U.S.C. § 982(a)(1), regarding certain
properties. (Doc. 1, pp. 7-8). The Government later produced
a Bill of Particulars naming additional properties. (Doc.
27). In the plea agreement, Chicago agreed “to the
forfeiture of any interest he has in the properties
identified in the forfeiture allegations in the indictment
and the bill of particulars.” (Doc. 70, p. 23). Upon
motion of the Government (Doc. 77), the Court entered a
Preliminary Order of Forfeiture (Doc. 78), which was later
amended and is the APOF now in question (Doc. 80).
APOF, which Nguyen would have the Court amend in her favor,
was entered on August 16, 2016. Therein, the Court found
that, based upon Chicago's guilty plea and the
Government's brief, adequate factual and legal support
existed to issue the APOF. The APOF forfeited from Chicago
the following property:
1. The contents of PNC Bank Account No. XXXXXX7406, a joint
checking account held in the names of Manila Chicago and/or
2. The contents of PNC Bank Account No. XXXXXX1595, a
checking account held in the name of Loan Nguyen;
3. The residence of real property at 13915 Sprinkle Avenue,
Mobile, Alabama, 36509;
4. The real property identified as Mobile County Parcel #
R021309320000107.02 containing approximately 5.41 acres and
legally described as following:
COMG AT THE INT OF THE N/L OF THE S1/2 PF SEC 32, R2W, 7 THE
E ROW/L OF U.S. HWY 45 RUN 06 DEG 08MIN 58 SEC W ALG S.D. E
ROY/L 441.77 FT TO THE POB OF THE PARCEL HEREIN DESC.;
5. One black 2014 Ford Mustang Coupe, VIN 1ZVBP8CF7E5280204;
6. One Husqvarna lawn tractor, Model M-ZT61, Serial No.
042514B002339, including Kawasaki engine with Serial No.
7. $14, 769.00, more or less, in United States Currency.
(Doc. 8, p. 2-3). After the Government provided notice of the
APOF, Nguyen timely filed her Petition as a third party with
an interest in the property contained within paragraph 1, 2,
3, 4, and 7 above. (Doc. 84). On the same day, Nguyen filed
her Supplemental and Amended Petition. (Doc. 85). The
Government now moves to dismiss Nguyen's petitions for
failure to state a legally sufficient claim upon which relief
can be granted.
21, United States Code, Section 853(n) protects third parties
who may have an interest in property subject to forfeiture by
giving them a limited right to participate temporarily in a
criminal case through a hearing called an ancillary
proceeding. United States v. Cone, 627 F.3d 1356,
1358 (11th Cir. 2010). The purpose of an ancillary proceeding
is to exempt the interest of qualifying third parties from
criminal forfeiture. United States v. Ramunno, 599
F.3d 1269, 1273 (11th Cir. 2010). Any third party asserting a
“legal interest” in forfeited property
“may, within thirty days of the final publication of
notice or h[er] receipt of notice … whichever is
earlier, petition the court for a hearing to adjudicate the
validity of h[er] alleged interest in the property.” 21
U.S.C. § 853(n)(2).
32.2 of the Federal Rules of Criminal Procedure, however,
provides that in “an ancillary proceeding, the court
may, on motion, dismiss the petition for lack of standing,
failure to state a claim, or for any other lawful
reason.” Fed. R. Crim. Proc. 32.2(c)(1)(A). A motion to
dismiss a third party's claim is treated like a 12(b)
motion in a civil case; all facts are assumed to be true.
See United States v. Grossman, 501 F.3d 846, 848
(7th Cir. 2007) (concluding under Rule 32.2(c)(1)(A), the
Government may move to dismiss a third party claim on any
ground to which a 12(b) motion would apply in a civil case);
Pacheco v. Serendensky, 393 F.3d 348, 352 (2d Cir.
2004) (finding a motion to dismiss a third party claim in an
ancillary proceeding is treated like a 12(b) motion in a
civil case). If, taking all facts alleged in the petition as
true, it fails to set forth ground upon which the claim would
prevail, the claim must be ...