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United States of America v. Approximately $658

October 31, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
APPROXIMATELY $658,830.00 IN U.S. CURRENCY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is plaintiff's (also referred to as the "government") motion to strike the claim and answer filed in this civil forfeiture action by claimant Robert D. Gibson. Mr. Gibson is proceeding without counsel and is incarcerated at the Salinas Valley State Prison (Dkt. No. 45).*fn1 Because Mr. Gibson is incarcerated, this matter was submitted on the briefs and record in the case (Order, July 15, 2011, at 1, Dkt. No. 51). See also E. Dist. Local Rule 230(l).

The government filed its motion pursuant to Rule G(8)(c)(i)(A) of the Supplemental Rules of Admiralty Or Maritime Claims and Asset Forfeiture Actions ("Supplemental Rules"), and seeks an order striking Mr. Gibson's claim and answer on the grounds that Mr. Gibson failed to respond to special interrogatories served on him by the government pursuant to Supplemental Rule G(6)(a). Alternatively, the government seeks an order compelling Mr. Gibson to respond to the government's special interrogatories within ten days and staying the government's obligation to respond to discovery requests served on it by Mr. Gibson. (Pl.'s Memo. of P. & A. In Supp. of Mot. to Strike ("Pl.'s Memo.") at 7, Dkt. No. 45, Doc. No. 45-1.) Mr. Gibson filed two written oppositions to the motion to strike (Dkt. No. 50, 54), and the government filed a reply brief (Dkt. No. 56) consistent with the court ordered briefing schedule (Order, July 15, 2011, at 2). The undersigned has considered the parties' briefs and the appropriate portions of the record in this case and, for the reasons stated below, grants plaintiff's motion in part and denies it in part. The undersigned does not strike Mr. Gibson's claim and answer at this time, but orders Mr. Gibson to serve responses to the government's special interrogatories within 21 days of service of this order. The undersigned also stays the government's obligation to respond to Mr. Gibson's discovery requests-to the extent no responses have been served-until 21 days after Mr. Gibson serves the government with responses to the government's special interrogatories.*fn2

Also pending before the court are: (1) eight post-answer motions to dismiss filed by Mr. Gibson (Dkt. Nos. 18, 23, 30, 37, 47, 48, 52, 70); and (2) four motions to suppress evidence (Dkt. Nos. 49, 53, 57, 66). The undersigned denies these motions for the reasons stated below. However, such denials are without prejudice, and Mr. Gibson may subsequently file a single motion to dismiss and a single motion to suppress as appropriate under the Federal Rules of Civil Procedure, the Supplemental Rules, and the court's Local Rules.

I. BACKGROUND

On April 11, 2011, the government filed its Verified Complaint For Forfeiture In Rem (Dkt. No. 1). The particular facts pertaining to the seizure of the res at issue, i.e., approximately $658,830 in U.S. currency that is presently in the custody of the U.S. Marshals Service, are not central to the pending motion to strike and are therefore not recounted with great detail here. In short, the government alleges that "[o]n October 8, 2010, Special Agent Brian Fichtner ("Fichtner") of the California Department of Justice, Bureau of Narcotic Enforcement, responded to a call from the United Parcel Service ("UPS") shipping facility located at 1380 Shore Street, West Sacramento, California reporting that a shipping package then being audited was found to contain a large amount of U.S. Currency." (Verified Compl. ¶ 5.) It further alleges that the listed return address was for "Josh Howell" in Sacramento, California, and that the mailing address was for "Jeff Howell" in Charlotte, North Carolina. (Id. ¶ 6.) The government alleges that Fichtner, posing as a UPS employee, spoke to persons named Jason Howell and Jeff Howell on the telephone, but law enforcement was ultimately unable to locate persons named Josh, Jason, or Jeff Howell. (See id. ¶¶ 10-11.)

On April 21, 2011, Mr. Gibson filed a claim in rem and answer, asserting that he is the owner of the currency seized on October 8, 2011. (See Claim & Answer, Dkt. No. 10). On May 11, 2011, Mr. Gibson filed a supplement to his claim in rem, again representing that he is the owner of the res seized on October 8, 2011. (Suppl. Claim, Dkt. No. 17). The undersigned refers to Mr. Gibson's filings generally as Mr. Gibson's claim and answer. Mr. Gibson appears to be the only claimant to date.

On or about May 20, 2011, the government mailed its First Set of Rule G(6) Special Interrogatories to Mr. Gibson at Salinas Valley State Prison. (Teglia Decl. ¶ 4 & Ex. B, Dkt. No. 45, Doc. No. 45-2.) The special interrogatories advised Mr. Gibson that his responses to the 18 special interrogatories were due within 21 days of receipt of the interrogatories. (Id. ¶ 4 & Ex. B at 1.) The government represents that Mr. Gibson has not served responses to the special interrogatories on the government as of the date it filed its reply brief in support of the pending motion to strike. (Reply Br. at 3; see also Teglia Decl. ¶ 5.)

II. DISCUSSION

A. The Government's Motion to Strike

The government's motion to strike Mr. Gibson's claim and answer is premised on Mr. Gibson's failure to respond to special interrogatories propounded by the government after Mr. Gibson filed his claim and answer. The undersigned concludes that although the government has stated a permissible basis for striking Mr. Gibson's claim and answer pursuant to Supplemental Rule G, it would be more prudent to permit Mr. Gibson to promptly serve responses to the government's interrogatories in order to cure the present deficiency.

Supplemental Rule G was adopted in 2006 "to bring together the central procedures that govern civil forfeiture actions." See Suppl. Rule G advisory committee notes to 2006 adoption; accord United States v. Real Property Located at 1 Mile Up Hennessey Road, Burnt Ranch, Cal., No. 2:09-cv-1940 GEB KJM, 2010 WL 456922, at *2 n.1 (E.D. Cal. Feb. 3, 2011) (unpublished). Supplemental Rule G(1) provides that "[t]o the extent that [Supplemental Rule G] does not address an issue, Supplemental Rules C and E and the Federal Rules of Civil Procedure also apply." See also Suppl. Rule A(2) (providing that with respect to actions including forfeiture actions in rem arising from a federal statute, "[t]he Federal Rules of Civil Procedure also apply . . . except to the extent that they are inconsistent with these Supplemental Rules").

Supplemental Rule G(6)(a) authorizes the government to serve limited special interrogatories on a claimant, and provides:

The government may serve special interrogatories limited to the claimant's identity and relationship to the defendant property without the court's leave at any time after the claim is filed and before discovery is closed. But if the claimant serves a motion to dismiss the action, the ...


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