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United States of America v. Approximately $658

August 3, 2012

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

FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's (the "government") Motion To Strike Claim And Answer For Failure To Comply With Supp Rules G(5) And G(6); Alternatively, For Summary Judgment ("Motion") filed in this civil forfeiture action by claimant Robert D. Gibson. (Dkt. No. 77.)*fn1 Mr. Gibson is proceeding without counsel and is incarcerated at the Salinas Valley State Prison.

The government filed its motion pursuant to Rule G(8)(c)(i)(B) of the Supplemental Rules of Admiralty Or Maritime Claims and Asset Forfeiture Actions ("Supplemental Rules"), and requests that this court strike Mr. Gibson's claim and answer, and enter summary judgment for the government on the ground that Mr. Gibson lacks standing.

(Memo. In Supp. of Mot. to Strike ("Pl.'s Memo.") at 1, Dkt. No. 77, Doc. No. 77-1.) Mr. Gibson has filed three written oppositions to the government's Motion. (Dkt. Nos. 86, 88, 95.) In the interest of clarity, and because the court previously informed Mr. Gibson that it would consider only the last opposition he filed, (Dkt. No. 97), the court herein cites only to Mr. Gibson's third opposition, filed June 18, 2002. (("Opposition"), Dkt. No. 95). For the reasons discussed below, the undersigned recommends this court grant the government's motion for summary judgment and, accordingly, strike Mr. Gibson's claim against the defendant property.

I. BACKGROUND*fn2

A. Factual Background

On October 8, 2010, Special Agent Brian Fichtner of the California Department of Justice, Bureau of Narcotic Enforcement, responded to a call from the UPS shipping facility, located at 1380 Shore Street, West Sacramento, reporting that a shipping package then being audited was found to contain a large amount of U.S. Currency. (SOF 2.) Upon inspection of the package, Agent Fichtner observed that the currency was packaged inside vacuum-sealed bags and had a return address of: Josh Howell, UPS Store #4348, 2121 Natomas Crossing Drive, Sacramento, CA 95834, and a mailing address of: Jeff Howell, 2913 McKee Road, Charlotte, NC 28270. (SOF 3.)

The large amount of currency was packaged inside vacuum-sealed bags. (SOF 4.) A later bank count of the defendant currency totaled $658,830.00. (SOF 4.)

A drug-detection dog gave a positive alert to the shipping package and then again announced a positive alert after the defendant currency was unsealed from the vacuum-sealed packaging. (SOF 5.) The package containing the vacuum-sealed $658,830.00 was mailed on Friday October 8, 2010, for delivery on Saturday October 9, 2010, one of the most expensive rates offered by UPS. (SOF 6.) The shipping cost was $373.45, paid in cash. (SOF 6.)

On October 11, 2010, North Carolina officers executed a search warrant for the purported "Jeff Howell" residence located at 2913 McKee Road, Charlotte, North Carolina, and found approximately 4.9 grams of marijuana, approximately 2.5 grams of cocaine, approximately 10 tablets of Darvacet (Schedule 4 controlled substance), and large plastic bags containing marijuana residue. (SOF 7.) James Medina was the record owner of the property searched. (SOF 7.) North Carolina officers learned from a confidential informant that Medina is the sole resident of 2913 McKee Road, Charlotte, North Carolina, and that Medina was involved in the sale and distribution of marijuana. (SOF 8.) When contacted by telephone by North Carolina law enforcement, Medina denied any knowledge of any package shipped to him and has failed to meet with officers. (SOF 8.)

Between October 9, 2010, and October 11, 2010, Agent Fichtner, posing as a helpful UPS employee, spoke on the telephone several times with persons identifying themselves as Jason Howell and Jeff Howell, who sought information about the package. (SOF 9.) On October 11, 2010, Agent Fichtner disclosed to "Jeff Howell" that the package had been damaged during shipping, and a large amount of currency had been found, the individual hung up. (SOF 10.) Agent Fichtner then called the various telephone numbers provided to him earlier by "Jason Howell" and "Jeff Howell" but no one answered. (SOF 10.)

Agent Fichtner and other BNE agents checked the address provided to Agent Fichtner by "Jason Howell" when he believed Fichtner, as a UPS employee, was going to return the package to him at 4500 Truxel Road, Apt. 1322, Sacramento, California. (SOF 11.) Agents received no answer at the apartment and the apartment complex manager told agents that apartment 1322 was vacant. (SOF 11-12.) The apartment manager further stated that there was no one by the name of Josh, Jason, or Jeff Howell that had lived in that apartment, and no one by that name currently lives in the complex. (SOF 12.)

B. Procedural Background*fn3

The United States commenced this civil forfeiture action by filing its Verified Complaint for Forfeiture In Rem on April 11, 2011. (SOF 13.) The Verified Complaint alleges that the defendant currency is subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6) because it was "furnished or intended to be furnished [...] in exchange for a controlled substance" or represented proceeds "traceable to such an exchange" or moneys "used or intended to be used to facilitate [a] violation of" the Controlled Substances Act. (SOF 14.)

On April 21, 2011, Mr. Gibson filed a claim in rem and answer, asserting that he is the owner of the defendant currency. (SOF 17.) According to Mr. Gibson, "Josh Howell" is a trusted family member and "bailee." and the currency is "proceeds from the liquidation" of Mr. Gibson's father's estate. (SOF 17.) On May 11, 2011, Mr. Gibson filed a supplement to his claim, again representing that he is the owner of the defendant currency, that "Josh Howell" is a trusted family member and "bailee," and the currency is "proceeds from the liquidation" of his father's estate. (SOF 18.)

Because the claim on its face appeared to raise significant issues regarding whether Mr. Gibson had standing to contest the forfeiture, the United States, on May 20, 2011, served a set of eighteen special interrogatories pursuant to Rule G(6) of the Supplemental Rules. (SOF 19.) The special interrogatories sought information about the claimant's identity and relationship to the defendant property and advised that responses were due within twenty-one days of receipt of the interrogatories. (SOF 20.) The special interrogatories were sent to Robert D. Gibson at Salinas Valley State Prison. (SOF 20.)

On June 30, 2011, the United States moved to strike Mr. Gibson's claim and answer based on his failure to provide timely discovery responses. (SOF 21.)

Mr. Gibson opposed the motion on July 11, 2011, but did not answer any of the special interrogatories. (SOF 22.)

On October 31, 2011, the court ordered Mr. Gibson to provide responses to the special interrogatories within twenty-one days. (SOF 23.) In the event Mr. Gibson failed to provide discovery responses, the court stated that United States "may file another motion to strike" and the court will "recommend that the motion to strike be granted." (SOF 23.)

On November 16, 2011, Mr. Gibson served answers to the special interrogatories, which are excerpted below. (SOF 23.)

C. Responses to Interrogatories*fn4

i. Special Interrogatory No. 1:

The government presented Mr. Gibson with special interrogatory No. 1: Please state your full name, all prior names used (including aliases or nicknames), your social security number, your date of birth, and all of your addresses for the last five (5) years. Include the inclusive months and years lived at each address. (SOF 49.)

Mr. Gibson's Response to Special Interrogatory No. 1: Robert Douglas Gibson SSN; [Redacted] Address: 31625 Hwy # 101, California State Prison at Salinas Valley.

I am also the Fictious Consignee of the package in question, "Jeff Howell" (SOF 50.)

ii. Special Interrogatory No. 3:

The government presented Mr. Gibson with special interrogatory No. 3: Please state whether you claim to have been holding the defendant currency for another person(s), or that you claim to be the true owner of the defendant currency. (SOF 45.)

Mr. Gibson's response to Special Interrogatory No. 3: I am the true owner of the seized currency. (SOF 46.)

iii. Special Interrogatory No. 4:

The government presented Mr. Gibson with special interrogatory No. 4: If you claim to have been holding the defendant currency for another person(s), please identify that person(s) by their complete name(s), their home address(es), their business/work address(es), ...


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