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United States v. Two Thousand Eight Hundred Seventeen Dollars in U.S. Currency

January 19, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TWO THOUSAND EIGHT HUNDRED SEVENTEEN ($2,817.00) DOLLARS IN U.S. CURRENCY, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, District Judge

OPINION

This matter comes before the Court on Claimant John Beard's Objection to Order Directing Portion of Returned Property Be Used to Satisfy any Outstanding Judgments (Objection) (d/e 12) and his Motion for Post Judgment Interest and Reimburstment [sic] of Costs (Motion) (d/e 13). For the reasons set forth below, Claimant's Objection is SUSTAINED, and his Motion is DENIED.

A. OBJECTION

Claimant Beard objects to this Court's Order directing that one-half of Defendant Currency be used to satisfy Claimant's outstanding child support arrearage. See Text Order entered November, 21, 2006. The Court entered the November 21, 2006, Text Order based upon Claimant's consent and agreement. Beard now objects to the Order as entered and requests that one-half of the Currency formerly ordered to be applied toward Claimant's outstanding child support arrearage be released to the Claimant in full. The Government does not object to the amendment requested by Claimant to pay him the full amount of Defendant Currency. Therefore, the Court sustains Claimant Beard's Objection and orders that $1,408.50 formerly ordered to be applied toward Claimant's outstanding child support arrearage be released to the Claimant in full.

B. MOTION

1. CAFRA

In his Motion, Claimant Beard contends that he is entitled to the interest earned by the Government on Defendant Currency ($2,817.00) pursuant to the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 28 U.S.C. § 2465(b)(1)(C). Section 2465(b)(1) reads in relevant part:

Except as provided in paragraph (2), in any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for-- . . . .

(C) in cases involving currency, other negotiable instruments, or the proceeds of an interlocutory sale-- (i) interest actually paid to the United States from the date of seizure or arrest of the property that resulted from the investment of the property in an interest-bearing account or instrument; . . . .

28 U.S.C. § 2465(b)(1). Section 2465(b)(2)(B), however, provides that: "[t]he provisions of paragraph (1) shall not apply if the claimant is convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law." 28 U.S.C. § 2465(b)(2)(B). Following a jury trial, the Claimant in this case was found guilty of two counts of Possession of a Controlled Substance in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(B). See Case No. 02-30040. Any currency seized in connection with the two drug offenses is subject to criminal forfeiture pursuant to 21 U.S.C. § 853. The Claimant's request for post-judgment interest is therefore barred by § 2465(b)(2)(B). The Claimant's request for post-judgment interest pursuant to CAFRA is denied.

2. EAJA

Claimant also seeks costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Under § § 2412(a)(1) and (d)(1)(A), Claimant seeks to recover total costs of $957.85.*fn1 Specifically, pursuant to § 2412(a)(1), Claimant seeks to recover expenses for the following: (1) Filing Fee in the District Court ($150.00); (2) Filing Fee in the Court of Appeals ($455.00); and (3) Copying Costs ($125.00).*fn2 Pursuant to § 2412(d)(1)(A), Claimant seeks to recover expenses for the following: (1) Typing Ribbons ($35.85); (2) Correction Ribbons ($15.00); (3) Legal Pads ($12.00); (4) Postage ($65.00); and (5) Phone Calls ($100.00).

As discussed supra, § 2465(b)(2)(B) bars the Claimant from recovering costs. Claimant cannot attempt to avoid the effect of this provision by seeking costs under the EAJA. Moreover, even if subsection 2465(b)(2)(B) did not apply here, Claimant's argument for costs pursuant to the EAJA lacks merit.

An award of costs under the EAJA is proper if the following factors are satisfied: (1) the claimant is a prevailing party; (2) the Government's position was not substantially justified; (3) no "special circumstances make an award unjust"; and (4) the claimant timely filed a fee application, which is supported by an itemized statement. 28 U.S.C. § 2412(d)(1)(A), (b); Golembiewski v. Barnhart, 382 F.3d 721, ...


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