USA v. $13,600.00 in U.S. Currency And $1,800.00 in Money Orders

MOTION to Dismiss for Failure to State a Claim and Motion for Attorney Fees pursuant to the Equal Access to Justice Act

D.P.R.January 6, 2017

1 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO SAN JUAN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. Case No.: 16-cv-1817 (PAD) $13,600.00 U.S. Currency, $1,800.00 in Money Orders ___________________________________ / CLAIMANT’S MOTION TO DISMISS and MOTION FOR ATTORNEY FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT COMES NOW, undersigned counsel, on behalf of Claimant, Jonathan A. Casiano-Catalino, and files this his Motion to Dismiss the Complaint based upon the Plaintiff’s failure to state a claim upon which relief can be granted, and as grounds therefore, states as follows: PROCEDURAL HISTORY AND SUMMARY OF FACTS ALLEGED IN THE COMPLAINT On April 26, 2016, the Plaintiff filed a Complaint for Forfeiture in Rem (“Complaint”). Doc. 1. On December 16, 2016, the claimant, Jonathan A. Casiano-Catalino, timely filed a verified claim of ownership of the Defendant Funds. Doc. 10. The bare bones allegations in the complaint are as follows: “The defendant currency seized by law enforcement officers of the United States Drug Enforcement Administration ("DEA") consists of $13, 600.00 IN U.S. CURRENCY and $1,800.00 IN MONEY ORDERS.” Doc. 1, ¶2. “The facts and circumstances supporting the seizure and forfeiture of the defendant currency are contained in the Title 28, United States Code, Section 1746 unsworn declaration of the Drug Enforcement Administration ("DEA"), Special Case 3:16-cv-01817-PAD Document 11 Filed 01/06/17 Page 1 of 7 2 Agent Ronald Merrow attached hereto, and incorporated herein as if fully stated.” Id. at ¶7. No other facts are alleged in the complaint, moreover, the unsworn declaration referenced above is not attached to the complaint. An unsworn declaration was filed on a restricted level for government and Court viewing level only pursuant to standing order nine. Doc’s. 2, 6. MEMORANDUM OF LAW AND APPLICATION OF FACTS Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true, and view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, unlike factual allegations, conclusions in a pleading “are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). On the contrary, legal conclusions “must be supported by factual allegations.” Id. Indeed, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). Rule G(2)(a) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions provides that a complaint must meet certain verification, jurisdiction, and venue requirements. Rule G (2) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (“Rule G”). Rule G also requires that a complaint describe the property with reasonable particularity, identify the statute under which the forfeiture action is brought, and state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial. During trial, Plaintiff must prove by a preponderance of the evidence that Defendant Funds are subject to forfeiture because the funds constitute: “(1) money furnished or intended to be furnished by a person in exchange for a controlled substance in violation of the Controlled Substances Act; (2) proceeds traceable to such Case 3:16-cv-01817-PAD Document 11 Filed 01/06/17 Page 2 of 7 3 an exchange; or (3) money used and intended to be used to facilitate a violation of the Controlled Substances Act.” 21 U.S.C. § 881(a)(6). The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) eliminated the requirement that the government plead facts sufficient to establish probable cause and established that the government “need only satisfy Rule E(2)(a).” United States v. Lopez-Burgos, 435 F.3d 1, 2 (1st Cir. 2006). Rule E(2)(a) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions governs actions in rem, and states “the complaint shall state the circumstances from which the claim arises with such particularity that the ... claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.” “A claimant who establishes standing to contest forfeiture may move to dismiss the action under Rule 12(b).” Rule G (8)(b)(i). Regarding the government’s burden of proof, the government must “establish, by a preponderance of the evidence, that the property is subject to forfeiture” and “if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.” 18 USC § 983 (c) (1) and (3). The government’s obligation in this context is more stringent than the notice pleading requirements of the Federal Rules of Civil Procedure in setting forth grounds for forfeiture. United States v. Certain Real Estate Property Located at 4880 S.E. Dixie Highway, 838 F.2d 1558 (11th Cir. 1988); United States v. $38,000 in United States Currency, 816 F.2d 1538 (11th Cir. 1987); United States v. Two Parcels of Real Property Located in Russell County, Alabama, 92 F.3d 1123 (11th Cir. 1996). In $38,000, the court found the complaint insufficient because there was not a “whiff” of evidence in the complaint to suggest the property was in any way Case 3:16-cv-01817-PAD Document 11 Filed 01/06/17 Page 3 of 7 4 linked to illegal drug activity. In 4880 S.E. Dixie Highway, supra, the court held that the “bare bones” complaint was so deficient that the claimant was entitled to an award of fees under the Equal Access to Justice Act. With these forfeiture-specific requirements in mind, the Plaintiff has failed to state a claim upon which relief can be granted and the complaint must be dismissed. Supp’l Rule 8(b)(i) and Fed Rules Civ Proc R 12 (b)(6). The Plaintiff cites no facts in the complaint that justify forfeiture. No detail is stated as to how or why the money and money orders taken from the claimant are in any way linked to illicit or illegal acts, let alone drug trafficking activities. Taken individually or considered cumulatively, these factors do not support a reasonable belief that the government will be able to meet its burden of proof at trial that there is a substantial connection between the Defendant Funds and the commission of a drug offense specified in 21 U.S.C. § 881(a)(6). The quantity of cash and money orders ($13,600.00 U.S. Currency, and $1,800.00 in Money Orders) alone does not justify forfeiture. A large amount of currency, in and of itself, is insufficient to establish probable cause for forfeiture under 21 U.S.C. § 881(a)(6). United States v. $121,100.00 in United States Currency, 999 F.2d 1503 (11th Cir. 1993). Absent some evidence connecting specifically to illegal drugs even a large sum of money, there is no reasonable basis for believing that the money is substantially linked to an illegal exchange of a controlled substance. Id. at 1506, citing United States v. $ 4,255,625.39, 762 F.2d 895, 903 (11th Cir.1985), cert. denied, 474 U.S. 1056, 864 F.2d 520, 523, 106 S. Ct. 795, 88 L. Ed. 2d 772 (1986). The possession of a large amount of currency is not itself a crime, nor does it necessarily indicate drug-related activity. United States v. Daniels, 2008 U.S. Dist. LEXIS 109003, 79 Fed. R. Evid. Serv. (Callaghan) 1081 (E.D. La. Aug. 25, 2008). Though people involved in the drug Case 3:16-cv-01817-PAD Document 11 Filed 01/06/17 Page 4 of 7 5 trade may tend to carry large amounts of currency, many people with no connection to the drug trade also carry large amounts of currency. See United States v. $ 191,910.00 in United States Currency, 16 F.3d 1051, 1072 (9th Cir. 1994) ("Fifteen to twenty thousand dollars is hardly enough cash, standing alone, to justify more than a suspicion of illegal activity."); see also id. at 1071-72 (forfeiture claimant who was carrying fifteen to twenty thousand dollars "could just as easily have been a distributor of 'street money' in a political campaign, an embezzler, a jewel smuggler, an art thief, or an S & L crook as a drug conspirator"). Here, the total amount of currency seized from the claimant was $13,600.00 in U.S. Currency, and $1,800.00 in Money Orders, compared to amounts ten times that and over one hundred times more than that in the cases cited above. Id. The circumstances surrounding this amount of money as alleged in the complaint give zero indication that the money is in any way connected to anything illicit or illegal. Therefore, applying the facts as alleged in the complaint, the amount of money considered on its own and taken with the lack of any other supportive facts as alleged in the complaint does not provide a reasonable basis for believing that the cash is substantially connected to a drug offense, as required by 21 U.S.C. § 881(a)(6). ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT The Court should award attorney fees to the claimant. The Equal Access to Justice Act (EAJA) authorizes the payment of attorney's fees to a prevailing party in an action against the United States absent a showing by the government that its position in the underlying litigation "was substantially justified." 28 U. S. C. §2412(d)(1)(A). In 4880 S.E. Dixie Highway, supra, the court held that the “bare bones” complaint was so deficient that the claimant was entitled to an award of fees under the Equal Access to Justice Act. Here, the complaint is bare bones and the claimant made several efforts to resolve the matter without needless litigation. Case 3:16-cv-01817-PAD Document 11 Filed 01/06/17 Page 5 of 7 6 In an attempt to resolve the matter and forego the time and expense of litigation, the claimant through counsel made several attempts to contact the government attorney in this matter by phone calls and email communications. However, the government attorney did not respond to these repeated messages other than to have a paralegal acknowledge receipt of the communication. The only communication was several months later by service of the complaint. Therefore, the government’s failure to attempt to resolve the matter and avoid needless litigation, in addition to the baseless and legally insufficient complaint as filed justify an award of attorney fees to the claimant. CONCLUSION Contrary to Supp’l Rule G (2), the complaint fails to state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial that by a preponderance of the evidence there was a substantial connection between Defendant funds and a drug offense specified in 21 U.S.C. § 881(a)(6). USCS Admiralty and Maritime Claims R G (2)(e) and (f); 18 USC § 983 (c) (1) and (3). The Plaintiff has failed to state a claim upon which relief can be granted and therefore the complaint must be dismissed. Supp’l Rule G (8)(b)(i) and Fed Rules Civ Proc R 12 (b)(6). WHEREFORE, the Claimant, Jonathan A. Casiano-Catalino, by and through undersigned counsel, prays this Honorable Court will grant his motion to dismiss based upon the Plaintiff’s complaint failing to state a claim upon which relief can be granted. By: /s/ Tim Bower Rodriguez Tim Bower Rodriguez, Esquire Puerto Rico Federal Bar No.: 300809 Tim Bower Rodriguez, PA 601 N. Ashley Drive #310 Tampa, Florida 33602 Direct: (813) 384-7555 Facsimile: (866) 203-2532 Email: t@bowerrodriguez.com Case 3:16-cv-01817-PAD Document 11 Filed 01/06/17 Page 6 of 7 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY on January 6, 2017, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will then send notice of electronic filing to the electronic mail addresses of record. By: /S/ Tim Bower Rodriguez Case 3:16-cv-01817-PAD Document 11 Filed 01/06/17 Page 7 of 7