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United States v. Seven Thousand Six Hundred Ninety-Six Dollars ($7

United States District Court, N.D. Iowa, Cedar Rapids Division

January 29, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
SEVEN THOUSAND SIX HUNDRED NINETY-SIX DOLLARS ($7, 696.00) IN UNITED STATES CURRENCY, Defendant, And Concerning LASHAUN MAURICE PERRY, Claimant.

RULING ON MOTION FOR SUMMARY JUDGMENT

JON STUART SCOLES, Chief Magistrate Judge.

I. INTRODUCTION

This matter comes before the Court on the Motion for Summary Judgment (docket number 30) filed by the United States on December 30, 2013, the Response (docket number 32) filed by the Claimant on January 7, 2014, the Reply (docket number 34) filed by the United States on January 14, and the Sur-Reply (docket number 35) filed by the Claimant on January 23. Pursuant to Local Rule 7.c, the issue will be decided without oral argument.

II. PROCEDURAL HISTORY

On November 20, 2012, the United States filed a verified complaint of forfeiture in rem, seeking forfeiture of $7, 700 seized from the residence of Lashaun Perry on about June 12, 2012. On December 12, 2012, the United States filed an amended verified complaint, stating that the amount seized was actually $7, 696.

On January 2, 2013, Claimant Lashaun Maurice Perry filed a verified claim of interest, stating that the $7, 696 seized from his residence belongs to him. On January 10, 2013, Perry, who at that time was represented by attorney Gerald J. Kucera, filed a motion to dismiss claiming the complaint was not timely filed, and asked that the money be immediately released. The motion to dismiss was denied without prejudice by Chief Judge Linda R. Reade on April 30, 2013. Judge Reade concluded the complaint was timely, but ordered that it be recast to appropriately allege its timeliness. On May 10, 2013, the United States filed a second amended complaint to correct perceived deficiencies in the amended complaint. Perry filed an answer to the second amended complaint on May 21, 2013.

On July 31, 2013, the Court adopted a proposed Scheduling Order and Discovery Plan submitted by the parties. Also at that time, the case was referred to the undersigned magistrate judge for the conduct of all further proceedings in accordance with 28 U.S.C. ยง 636(c) and the consent of the parties. After consulting with counsel, a bench trial was scheduled for May 5, 2014.

On September 4, 2013, Mr. Kucera moved to withdraw as counsel, stating that Perry had filed a motion in a criminal action pending before the Eighth Circuit Court of Appeals, claiming Kucera had provided ineffective assistance of counsel in the criminal case. Accordingly, Mr. Kucera believed that a conflict of interest existed requiring his withdrawal. Perry did not resist Mr. Kucera's motion to withdraw, but asked that counsel be appointed to represent him or, alternatively, that he be permitted to represent himself. The Court granted Mr. Kucera's motion to withdraw, found that Perry was not entitled to court-appointed counsel, and stated that Perry may proceed pro se.

On December 30, 2013, the United States timely filed the instant motion for summary judgment.

III. RELEVANT FACTS [1]

A. June 12, 2012 Search

On June 11, 2012, a federal search warrant was issued for a residence on 5th Avenue SE in Cedar Rapids, Iowa.[2] Claimant Lashaun Maurice Perry resided at the residence. The affidavit submitted in support of the search warrant established that Perry, who was a convicted felon, was seen by law enforcement officers at his residence in possession of a firearm. When law enforcement officers executed the search warrant on June 12, they found a Smith & Wesson handgun, ammunition, and a holster.

During the search, officers also found a scale with marijuana residue, a mason jar with a baggie containing marijuana residue, and a substantial amount of cash. In Perry's bedroom, where the handgun was located, officers also found a black tennis shoe containing $4, 000 in cash[3] and a white tennis shoe containing $3, 130 in cash.[4] Officers also seized $566 from Perry's pocket, making the total amount seized $7, 696. Parked at the residence was a vehicle known to be driven by Perry. After a drug dog indicated on the odor of narcotics coming from the vehicle, officers obtained a state search warrant. Inside the center console of the vehicle was a cup with two baggies of marijuana, and underneath the center console officers found three mason jars.

B. Criminal Charges

On June 12, 2012 - the day the search warrant was executed - Perry was charged by criminal complaint with being a felon in possession of a firearm.[5] On June 20, 2012, a grand jury returned an indictment, charging Perry with the same offense.[6] Pursuant to Perry's guilty plea, he was sentenced on December 4, 2012 to 78 months' imprisonment. The judgment was affirmed on appeal by the Eighth Circuit Court of Appeals.

C. Claimed Source of the Money

When the search was executed on June 12, 2012, Perry initially told law enforcement officers that he had no knowledge of the cash found in the shoes in his bedroom. Perry later stated that he knew about ...


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