The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
The United States of America ("United States" or "Government")
instituted a claim of forfeiture, pursuant to
21 U.S.C. § 881(a)(6), against the Defendant funds in the amount of forty
thousand dollars (the "Funds"), based upon the United States'
belief that those funds: (1) were monies furnished or intended to
be furnished in exchange for a controlled substance; (2) were
proceeds from the sale of a controlled substance; or (3) were
monies used or intended to be used to facilitate an illegal
narcotics transaction. James Simonds and Stephen Komie
(collectively, "Claimants") have filed a motion to dismiss the
United States' complaint of forfeiture, pursuant to Federal Rule
of Civil Procedure 12(b)(6). For the reasons set forth below,
Claimants' motion is DENIED.
On May 20, 2003, United States Task Force Agent Darrell Johnson
("Agent Johnson") received itinerary information regarding the
travel plans of Amtrak passenger James Simonds. (Compl. ¶ 4).
Agent Johnson's investigation revealed that Simonds was traveling
on a one-way ticket purchased with a credit card, totaling $917.68, for travel
from New York, New York via Chicago, Illinois and Lamy, New
Mexico, with a final destination of Albuquerque, New Mexico.
Id. Special Agent Thomas Evans, who was working with Agent
Johnson, queried the name "Simonds, James" in the Narcotic and
Dangerous Drug Information System ("NADDIS"), and received a
positive response for a James Martin Simonds ("Simonds"), with a
birth date of November 24, 1931. Id. At approximately 3:00 p.m.
that same day, agents assigned to the Drug Enforcement Agency
Transportation Task Force at Union Station arrived at Amtrak
train number 3, car number 330, where they observed a male
passenger standing in the doorway of train bedroom number 11.
(Compl. ¶ 5). Agents identified themselves to the individual, who
was subsequently identified as James Simonds. Id. Among other
questions, Special Agent Evans asked Simonds if he could view his
train ticket and see a piece of photo identification. Id.
Simonds presented a California driver's license with the name
James M. Simonds. Special Agent Evans noted that the birth date
on the driver's license, November 24, 1931, was the same birth
date on a NADDIS report for an individual named James Martin
Simonds. Id. Among other information, the NADDIS report
revealed that in 1986, seventy thousand dollars ($70,000) United
States currency was seized from Simonds. Id. Subsequent to
observing Simonds' identification and train ticket, Special Agent
Evans inquired as to the purpose of Simonds' travel. Id.
Simonds replied that he was returning home. Id. Special Agent
Evans then inquired into Simonds' reasons for his travel to New
York, and Simonds responded that he was traveling. Id. Special
Agent Evans then asked Simonds if the bag in his room was his,
and if it was, had Simonds packed the luggage himself. Id.
Simonds responded that all of the bags were his, and he had
packed the luggage himself. Id. Additionally, Special Agent
Evans asked Simonds if he was aware of the contents of the luggage, to which Simonds
replied yes. Id. Additionally, Special Agent Evans asked
Simonds if he was carrying any type of illegal drug or narcotic,
including any large amounts of prescription drugs or steroids, to
which Simonds replied no. Id. Similarly, Simonds denied that he
was carrying any large amount of United States or foreign
Special Agent Evans believed that throughout the conversation,
Simonds appeared unusually nervous. (Compl. ¶ 6). Special Agent
Evans informed Simonds that Special Agent Evans was going to
remove the luggage from the train, and have a canine unit perform
a sniff test on the luggage. Id. Subsequently, as the
conversation progressed, Simonds gave the agents permission to
look into the gym bag. Id. Special Agent Evans opened Simond's
Adidas brand, black gym bag, and observed a plastic bag
containing a leafy green substance, believed to be marijuana.
Id. Simonds denied that the marijuana belonged to him. Simonds
was placed under arrest. Id. A more extensive search of the
luggage, conducted by the Amtrak police department, revealed
additional bundles of marijuana totaling approximately twelve
pounds. (Compl. ¶ 7). Subsequent to the discovery of more
marijuana, Agent Johnson called for a Chicago Police Department
canine unit to assist in the investigation. Id. Chicago Police
Department Officer Thomas O'Boyle responded with canine unit
Britt, who alerted for the presumptive odor of narcotics on the
United States currency in a black colored briefcase. Id. Among
other items, the briefcase contained eight bundles of United
States currency, wrapped in rubber bands, totaling forty thousand
dollars. Id. It is based upon these facts that the Government
believes the Funds are subject to forfeiture pursuant to
21 U.S.C. § 881(a)(6). II. Legal Standard
In ruling on a motion to dismiss pursuant to Fed.R. Civ. P.
12(b)(6), the Court, "must accept all well pleaded allegations as
true. In addition, the Court must view these allegations in the
light most favorable to the plaintiff." Gomez v. Illinois Board
of Education, 811 F.2d 1030, 1039 (7th Cir. 1987). A party's
claim should be dismissed only if it is clear that no set of
facts in support of the claim would entitle the party to relief.
Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting
Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984)).
In addition, because this is a forfeiture action, the
particularity requirements of Supplemental Rule E(2)(a), which
governs in rem and quasi in rem actions, must be satisfied.
United States v. Funds in the Amount of $29,266.00,
96 F.Supp.2d 806, 810 (N.D. Ill. 2000). Specifically, Rule E(2)(a)
provides that, "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." Id. Consequently, "the government's
formal obligation to plead specific information about the
circumstances underlying the seizure [is separate] from its
substantive obligation to allege facts sufficient to support its
assertion that probable cause for the forfeiture exists." United
States v. $29,266.00, 96 F.Supp.2d at 810 (quoting United
States v. Funds in the Amount of $9,800, 952 F. Supp. 1254, 1259
(N.D. Ill. 1996)). Most courts have agreed that the particularity
requirement of Rule E(2)(a) is satisfied by providing, "specific
information about the date and location of the seizure, the
amount of money seized, and the claimant's actions on the date of
the seizure." Id. Consequently, "pleading the cause of action
is satisfied as long as the allegations set forth a reasonable basis for believing the
property is subject to forfeiture." United States v.
$29,266.00, 96 F.Supp.2d at 810 (internal citations omitted).
The Claimants provide several reasons as to why they believe
this forfeiture action should be dismissed. The Claimants believe
that the Government failed to follow the statutory guidelines
necessary to proceed with this matter, and as a consequence, the
Court lacks jurisdiction over the Government's Complaint.
Additionally, the Claimants argue that the Complaint fails to
state a claim upon which relief can be granted, as the Government
has failed to plead probable cause properly. The Court will
address each of Claimants' arguments in turn.
A. Has the Government Met the Statutory Requirements for
Instituting a Civil Forfeiture Action?
The Claimants allege that the Government failed to follow the
rules governing civil forfeiture proceedings. Specifically,
Claimants allege that the Government failed to follow
18 U.S.C. § 983(a)(3)(B)(ii) ("§ 983(a)(3)(B)(ii)"), which in relevant part,
If the Government does not. . . . (ii) before the
time of filing has expired (I) obtain a criminal
indictment containing an allegation that the property
is subject to forfeiture; and (II) take the steps
necessary to preserve its right to maintain custody
of the property as provided in the applicable
criminal forfeiture statute, the Government shall
promptly release the property.
Claimants argue that because the Government failed to secure a
criminal indictment containing an allegation of forfeiture, the
Government is obligated to release the Funds. However,
Claimaints' interpretation of the forfeiture provisions only
results from reading § 983(a)(3)(B)(ii) in isolation. The entire section enumerating
the procedural guidelines for forfeiture must be read in order to
ascertain the appropriate procedural guidelines. In their
entirety, § 9839(a)(3)(A) and (B) state:
(A) 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.
(B) If the Government does not
(i) file a complaint for forfeiture or return the
property, in accordance with subparagraph (A); or
(ii) before the time of filing a complaint has
(I) obtain a criminal indictment containing an
allegation that the property is subject to
(II) take the steps necessary to preserve its right
to maintain custody of the property as provided in
the applicable criminal forfeiture statute, the
Government shall promptly release the property
pursuant to regulations promulgated by the Attorney
General, and may not take any further action to
effect the civil forfeiture of such property in
connection with the underlying offense.
The Government is correct that upon examination of the plain
language of the statute, in order to proceed with its forfeiture
cause of action, the Government must have: (1) filed a complaint
for forfeiture; (2) returned the property; or (3) indicted and
maintained the property before the time to file a complaint
expired. The Government took action in accordance with §
983(a)(3)(B)(i) of the statute, and filed its complaint for
forfeiture within 90 days of receiving a claim to the property.
Accordingly, pursuant to an accurate and complete reading of the
civil forfeiture provisions, the Government followed all
necessary procedural guidelines to seize the Funds, and as a
consequence, this Court has jurisdiction over this forfeiture
complaint. B. Has the Government Properly Plead Probable Cause?
Additionally, Claimants argue that the Government has not met
its initial burden of sufficiently pleading that the United
States had probable cause to believe that the Funds seized were
used to commit or facilitate a violation of the federal narcotics
laws. Claimants contend that the Government has made
generalizations and innuendos, and that the Complaint fails to
allege with well-pleaded facts that Mr. Simonds was involved in
activity to demonstrate that the money seized was used in a
narcotics transaction. The Civil Asset Forfeiture Reform Act
("CAFRA"), pursuant to 18 U.S.C. § 983(c)(1) ("§ 983(c)(1)"),
establishes the Government's burden in civil forfeiture
proceedings. § 983(c)(1) provides that, "the burden of proof is
on the Government to establish, by a preponderance of the
evidence, that the property is subject to forfeiture." Further,
18 U.S.C. § 983(a)(3)(D) states that, "No complaint may be
dismissed on the ground that the Government did not have adequate
evidence at the time the complaint was filed to establish the
forfeitability of the property." Consequently, "while the
probable cause which the government must show at trial is a
reasonable ground for belief of guilt, supported by less than
prima facie proof but more than mere suspicion, for purposes of
the complaint the allegations need only set forth a reasonable
basis for believing that the property is subject to forfeiture."
United States v. One 1997 E35 Ford Van, VIN 1FBJS31L3VHB70844,
50 F.Supp.2d 789, 796 (N.D. Ill. 1999) (citing United States
v. $9,800, 952 F.Supp at 1260). Additionally, as previously
stated, the Government must meet the heightened pleading
requirements of Supplemental Rule E(2)(a) and provide, "specific
information about the date and location of the seizure, the
amount of money seized, and the claimant's actions on the date of
the seizure." United States v. $29,266.00, (citing United
States v. $9,800, 952 F. Supp. at 1259). Clearly, the allegations enumerated by the Government in its
Complaint meet the heightened pleading requirements of Rule
E(2)(a). The Government drafted its Complaint with the requisite
specificity to enable the Claimants to launch an investigation.
At this stage of the Parties' proceedings, it is inappropriate to
entertain Claimants' arguments as to why the Government did not
have probable cause, as those arguments are more suited for a
motion for summary judgment or trial. Consequently, Claimants'
arguments that the Government's Complaint should be dismissed for
failure to properly plead probable cause are unavailing.
For the foregoing reasons, Claimants' motion to ...