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United States v. Chicago

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

March 16, 2017

UNITED STATES OF AMERICA
v.
MANILA CHICAGO, Defendant.

          ORDER AND MEMORANDUM OPINION

          Callie V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         I. FACTUAL BACKGROUND

         Nguyen's 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).

         The 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 Loan Nguyen;
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. FS691VA29169; and
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.

         II. ANALYSIS

         Title 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).

         Rule 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 ...


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