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United States of America v. $7

April 30, 2013

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$7,696.00 IN UNITED STATES CURRENCY, DEFENDANT.



ORDER

I. INTRODUCTION

The matter before the court is Claimant Lashaun Maurice Perry's "Motion to Dismiss" ("Motion") (docket no. 10).

II. RELEVANT FACTUAL AND PROCEDURAL HISTORY

On June 12, 2012, law enforcement executed a federal search warrant at Perry's residence. During the course of the search, law enforcement discovered items consistent with marijuana distribution and, in Perry's bedroom, law enforcement found $7,696.00 in United States currency.

On July 31, 2012, the Federal Bureau of Investigation ("FBI") commenced an administrative forfeiture of the $7,696.00 seized from Perry's bedroom pursuant to 21 U.S.C. § 881(a)(6). The FBI sent a letter to Perry, care of Attorney Gerald J. Kucera, notifying Perry of the forfeiture and instructing him on the proper procedures for contesting the forfeiture. Specifically, the letter instructed Perry:

If you want to contest the seizure or forfeiture of the property in court, you must file a claim of ownership with the FBI by September 4, 2012. The claim is filed when it is received by the FBI Forfeiture Paralegal Specialist of the FBI Field Division mentioned below except in cases of pro se incarcerated individuals as otherwise provided by law.

July 31, 2012 Letter, Perry's Exhibit A (docket no. 10) at 3. In accordance with the procedures outlined in the letter, Perry sent via certified mail a Claim of Ownership dated August 20, 2012, to the Forfeiture Paralegal Specialist at the FBI's Omaha Division. Claim of Ownership, Perry's Exhibit B (docket no. 10) at 5-6; Certified Mail Receipt, Perry's Exhibit C (docket no. 10) at 7. On August 22, 2012, the United States Postal Service delivered the Claim of Ownership to the FBI Omaha Division. Certified Mail Receipt, Perry's Exhibit C at 7. The Forfeiture Paralegal Specialist did not physically receive the Claim of Ownership until August 23, 2012. Affidavit, United States' Exhibit 1 (docket no. 12-2) at 1.

On November 20, 2012, Plaintiff United States of America filed a "Verified Complaint of Forfeiture in Rem" ("Complaint") (docket no. 1), alleging that the money law enforcement seized from Perry's bedroom "represents proceeds from the trafficking in illegal controlled substances and/or is property that was used or intended to be used to facilitate the trafficking of controlled substances" and, therefore, is subject to forfeiture. Complaint ¶ 5. On December 12, 2012, the United States filed an "Amended Verified Complaint of Forfeiture In Rem" ("Amended Complaint") (docket no. 6). The Amended Complaint corrects "an inaccuracy regarding the dollar amount seized. The actual amount seized was $7,696.00 rather than the $7,700.00 listed in the [Complaint]." Amended Complaint at 1. On January 2, 2013, Perry filed a "Verified Claim of Interest" (docket no. 9), asserting that the seized money is not the proceeds of a Controlled Substances Act offense but, rather, is money he received as an inheritance and money he received as compensation for caring for his mother. Therefore, Perry contends that the money is not subject to forfeiture.

On January 10, 2013, Perry filed the instant Motion, in which he contends that the Complaint is untimely under 18 U.S.C. § 983(a)(3)(A). Accordingly, Perry requests that the court order the United States to "immediately release the funds of $7,696.00 to [Perry]." Motion at 2. On January 25, 2013, the United States filed a Resistance (docket no. 12), asserting that the Complaint is timely under 18 U.S.C. § 983(a)(3)(A). Perry did not file a reply, and the time for doing so has expired. See LR 7(g) (providing that a reply must be filed within seven days after a resistance is served). Neither party requests the opportunity to present oral argument on the Motion, and the court finds that a hearing is unnecessary. The Motion is fully submitted and ready for decision.

III. SUBJECT MATTER JURISDICTION

The court has subject matter jurisdiction over this action because the United States instituted the action and it is a forfeiture proceeding brought under 21 U.S.C. § 881. See 28 U.S.C. § 1345 ("[T]he district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress."); 28 U.S.C. § 1355(a) ("The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress . . . .); see also United States v. Real Property Located at Meramec View Estates, No. 99-3689, 230 F.3d 1365 (Table), 2000 WL 1248003, at *1 (8th Cir. Sept. 5, 2000) (finding that "[t]he district court clearly had subject matter jurisdiction over" an action brought pursuant to 21 U.S.C. § 881 and citing 28 U.S.C. §§ 1345 and 1355).

IV. ANALYSIS

A. Failure to Comply with Local Rules

As the United States correctly notes in its Resistance, Perry failed to comply with ...


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