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UNITED STATES v. 15824 WEST 143RD ST.

April 27, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
15824 West 143rd STREET, LOCKPORT, ILLINOIS, Defendant, YOHANN THURMAN; REPUBLIC SAVINGS BANK, Claimants



The opinion of the court was delivered by: KOCORAS

 CHARLES P. KOCORAS, UNITED STATES DISTRICT JUDGE

 This matter comes before the Court on plaintiff's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, plaintiff's motion is granted.

 Background

 On December 5, 1989, the United States filed a complaint seeking forfeiture of the defendant realty pursuant to 18 U.S.C. § 981. The verified complaint alleges that the defendant realty was purchased by claimant Yohann Thurman on October 16, 1987, with more than seventy separate money orders from twenty-two different currency exchanges, in violation of the currency transaction reporting requirements of 31 U.S.C. §§ 5313 and 5324. These money orders were allegedly purchased by agents of the claimant's husband George.

 Briefly, these sections require a financial institution, including a currency exchange, to file a report of each deposit, withdrawal, or exchange of currency to which the institution is a party, that involves a transaction in currency of more than $ 10,000. 31 U.S.C. § 5313(a); Treas.Reg. 31 C.F.R. § 103.22(a)(1) (July 11, 1987). Additionally, multiple currency transactions are to be treated as a single transaction if the financial institution is aware that the multiple transactions will total more than $ 10,000 in one day. Treas.Reg. § 103.22(a)(1). Section 5324 makes it unlawful for any individual to structure or assist in structuring a transaction with such a financial institution for the purpose of evading the reporting requirements. 31 U.S.C. § 5324.

 Section 981 provides the mechanism by which the government can first seize and later bring an action for the forfeiture of property involved in a transaction which violates Section 5313(a) or 5324 of Title 31. The government has previously obtained an order of seizure and now seeks a judgment of forfeiture.

 Specifically, the government's complaint alleges that George Thurman, through three of his agents, structured financial transactions to evade the reporting requirements imposed upon domestic financial institutions. Thurman allegedly purchased with cash, a series of more than seventy money orders from twenty-two different currency exchanges from October 5 through 16, 1987. These money orders totalled $ 585,000.00 and allegedly were used to purchase the defendant realty.

 On December 14, 1989, this Court found that there was probable cause to believe that the defendant realty was forfeitable to the United States. The Court issued an order authorizing the United States Marshal to seize the property pursuant to Rule C of the Admiralty Rules. In support of both its action to seize and this forfeiture action, plaintiff submitted a verified complaint and the affidavit of William T. Coughlin, a special agent with the Internal Revenue Service.

 In response to the forfeiture action, Yohann Thurman filed an answer and a claim for the defendant property. In her answer, the claimant raises the affirmative defense of innocent ownership set forth in 18 U.S.C. § 891(a)(2). However, in response to the material allegations in plaintiff's complaint, the claimant invokes her fifth amendment privilege against self-incrimination.

 In her response brief, the claimant focuses almost exclusively on the question of whether an adverse inference may be drawn from her choice to invoke the fifth amendment privilege. Not surprisingly, she argues that an adverse inference may not be drawn. On the burden of proof issue, claimant offers little in the way of argument. Claimant simply asserts that the government cannot rely on this Court's prior probable cause determination but must prove probable cause in a trial. Claimant also contends that the government must prove all the elements of the money laundering statute, including wilfulness.

 I. Procedure

 Judgment on the pleadings is appropriate when, after the pleadings are closed, the court determines that there is no material issue of fact presented and that one party clearly is entitled to judgment. National Fidelity Life Ins. Co. v. Karangis, 811 F.2d 357 (7th Cir. 1987). For purposes of determining whether a material issue of fact exists, uncontested allegations to which a party had an opportunity to respond are taken as true. Flora v. Home Federal Sav. and Loan Ass'n, 685 F.2d 209 (7th Cir. 1982). In this case, the critical question is whether claimant's invocation of her fifth amendment privilege against self-incrimination creates a material issue with respect to those facts for which it is invoked. As discussed below, we ...


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