United States v. $126,880 In U.S. Currency

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

UNITED STATES OF AMERICA,

Plaintiff

v. Case No: 2:19-cv-728-FtM-60MRM

APPROXIMATELY $126,880 IN

UNITED STATES CURRENCY,

Defendant.

________________________________________ /

ORDER DENYING SECOND RENEWED MOTION TO DISMISS VERIFIED

COMPLAINT FOR FORFEITURE IN REM FOR FAILURE TO STATE A

CLAIM UPON WHICH RELIEF CAN BE GRANTED

This matter is before the Court on the Second Renewed Motion to Dismiss

Verified Complaint for Forfeiture In Rem for Failure to State a Claim Upon Which

Relief Can be Granted, filed by Claimants Quenita Mara Harris and Lorenzo

Brown. (Doc. 39). Plaintiff United States of America (the “Government”) filed a

response in opposition to the motion. (Docs. 40; 31). Upon review of the motion,

response, court file, and record, the Court finds as follows:1

1 In support of an earlier motion to dismiss (Doc. 29), which this Court has denied as moot,

Claimants had filed a reply memorandum. (Doc. 32). They obtained leave to file, but have not filed,

a reply memorandum in connection with the instant motion. (Docs. 41; 43). Given the Government’s

adoption by reference of its response to that earlier motion, see (Doc. 40), the Court has considered

the Claimants’ previous reply in ruling on the current motion.

Background2

On May 23, 2019, Claimant Quenita Harris was driving a BMW, with

Claimant Lorenzo Brown as a passenger, on the Interstate heading East to Miami,

a known source city for cocaine and a major money laundering hub for drug

proceeds. A deputy sheriff pulled the car over because the license tag had expired.

Smelling marijuana, the deputy asked the passengers to step out and he searched

the car. He found $106,880 in cash in a paper Gucci bag on the passenger

floorboard, along with a loaded firearm, a small amount of marijuana, and Brown’s

identification and credit cards. The deputy found no documents indicating that the

money had come from a bank or other legitimate source. Brown had additional

marijuana in his sock and Ms. Harris also had a handgun in her purse.

Brown at first told the deputy that the money was his, but then moments

later claimed that it belonged to Harris. Brown said there was about $120,000 in

the bag and it was going to be used to buy a boat in Miami. While the deputy was

speaking with Brown, a second deputy found another $20,000 on the rear floorboard

of the BMW. All currency was bundled using currency straps; the denominations

included hundreds, fifties and twenties.

Harris and Brown were interviewed separately. Harris said that she was the

owner of the seized money, of which she claimed to have saved $55,000 - $60,000

2 The Court accepts as true the facts alleged in the complaint for purposes of ruling on the pending

motions to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen ruling on a defendant’s

motion to dismiss, a judge must accept as true all of the factual allegations contained in the

complaint.”). The Court is not required to accept as true any legal conclusions couched as factual

allegations. See Papasan v. Allain, 478 U.S. 265, 286 (1986).

over a period of 15 to 20 years, storing the money in boxes in her house. Harris said

that she was employed as a Certified Nursing Assistant and worked at a memory

care facility where she was paid $16.50 an hour, and that before this she had

worked in private nursing. Her total wages since 2003, according to Florida

Department of Revenue records, have been only approximately $140,000. She lived

in an apartment and paid $1,110 per month in rent.

Harris said that she had borrowed the rest of the money from “different

friends,” later described as “two friends,” whose names she did not disclose. She

indicated that she did not know how these friends acquired the money, that she had

not counted the money, and that she had no idea how much she money had until

law enforcement counted the currency. She said she had put the currency straps on

the funds she had saved, but that her unidentified friends had also put currency

straps on the funds they loaned her.

Harris said the money was to be used to buy a boat as a business, and that

her friends who loaned her the money were going to go in on the boat, but she did

not have a specific type of boat in mind, had not researched where she might buy a

boat or from whom, and knew only that she planned to buy one “somewhere in

Miami.” Towards the end of the interview, she said that she did not know for sure

whether any of the money was Brown’s, although she did not think so.

Brown in a separate interview said that he and Harris were going to Miami

to look for a boat to rent out, but did not know what kind of boat, did not know

where in Miami they would look for a boat or from whom they would buy a boat,

and did not know where they would moor the boat once they bought it. He admitted

that he was the owner of the loaded firearm and marijuana found in the bag along

with the cash and his identification and credit cards. Contrary to his initial

statement, Brown emphatically asserted that all of the seized money belonged to

Harris and that none of it was his.

On October 2, 2019, the Government filed its Verified Complaint for

Forfeiture In Rem, seeking that process of forfeiture be issued with respect to the

seized funds and that the funds be forfeited to the Government. Claimants’ Second

Renewed Motion to Dismiss argues that the complaint fails to state a legal claim to

initiate forfeiture proceedings.

Legal Standard

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a

short and plain statement of the claim showing the [plaintiff] is entitled to

relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual

allegations,” it does require “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). In order to survive a motion to dismiss, factual

allegations must be sufficient “to state a claim to relief that is plausible on its

face.” Id. at 570.

When deciding a Rule 12(b)(6) motion, review is generally limited to the four

corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233

(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a

court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the

[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the

complaint’s legal sufficiency, and is not a procedure for resolving factual questions

or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic

Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. 2009)

(Lazzara, J.).

Additional standards govern the sufficiency of a complaint in asset forfeiture

cases. Rule G(2) of the Supplemental Rules for Admiralty or Maritime Claims and

Asset Forfeiture Actions, Federal Rules of Civil Procedure, provides that the

complaint must, among other things, “state sufficiently detailed facts to support a

reasonable belief that the government will be able to meet its burden of proof at

trial.” Supp. R. G(2)(f). Supplemental Rule E(2)(a) provides that the complaint

must “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 and investigation of the facts and to frame a responsive pleading.”

18 U.S.C. § 983(a)(3)(D), on the other hand, provides that “[n]o complaint

may be dismissed on the ground that the Government did not have adequate

evidence at the time the complaint was filed to establish forfeitability of the

property.” See also Supp. R. G(8)(b)(ii). 18 U.S.C. § 983(c)(2) provides that the

Government may use evidence gathered after the filing of the complaint to establish

that the property is subject to forfeiture.

Analysis

The Government’s burden at trial will be to prove by a preponderance of the

evidence that the seized funds had a substantial connection to a transaction or

transactions involving controlled substances. See (Doc. 1 at ¶ 7); 18 U.S.C. §

983(c)(1) and (c)(3); United States v. All Funds in the Account of Property Futures,

Inc., No. 08-81244-CIV-MARRA/JOHNSON, 2010 WL 11447277, at *3 (S.D. Fla.

Feb. 18, 2010). The parties agree, correctly, that the Government in meeting that

burden may rely on the totality of the circumstances. See, e.g., United States v.

$242,484.00, 389 F.3d 1149, 1167 (11th Cir. 2004) (en banc). Thus, each item of

evidence is not to be “pick[ed] off one by one, by conjuring up some alternative

hypothesis of innocence to explain each circumstance in isolation.” Id. Moreover,

the Government need not “demonstrate that the seized currency was connected with

any particular drug transaction; instead, the Government need only show that the

money was ‘related to some illegal drug transaction.’” United States v. Currency

$21,175.00 in U.S., 521 F. App’x 734, 739 (11th Cir. 2013) (quoting $242,484.00, 389

F.3d at 1160).

At the pleading stage, however, the complaint needs only to “state sufficiently

detailed facts to support a reasonable belief that the government will be able to

meet its burden of proof at trial.” To be sure, a bare bones assertion that the money

is subject to forfeiture, without pleading a “whiff” of supporting evidence, would be

insufficient. United States v. Two Parcels of Real Prop. Located in Russell County,

Ala., 92 F.3d 1123, 1127 (11th Cir. 1996). But here there is more. The presence of

an unusually large amount of cash in Claimants’ car, in two separate locations on

the floorboard, suggests illegal activity of some kind and weighs in favor of a

reasonable belief that the funds were connected to illicit drugs. See $242,484.00,

389 F.3d at 1161 (“As a matter of common knowledge and common sense,” unlike

legitimate businesses, drug rings “commonly do use couriers to transport in cash

their ill gotten gains, which can be huge.”). Harris also stated that at home she

kept this money in boxes stored around the house. As the United States points out,

“[l]egitimate businesses or individuals usually keep large sums of money in banks,

not boxes.” (Doc. 31 at 13). Moreover, common sense also tells us that no one, not

even the very wealthy, carries around over $100,000 in cash in a paper bag.

Both claimants had guns with them in the car, “tools” often used by those

involved in the drug trade. See United States v. Perez, 648 F.2d 219, 224 (11th

Cir.1981) (“[S]ubstantial dealers in narcotics keep firearms on their premises as

tools of the trade almost to the same extent as they keep scales . . . glassine bags,

cutting equipment, and other narcotic equipment.”) (quoting United States v.

Wiener, 534 F.2d 15, 18 (2d Cir. 1976)); United States v. Smith, 918 F.2d 1501, 1509

(11th Cir.1990) (noting that firearms are “tools of the trade” for drug dealers).

Claimants were headed toward Miami, a known center for illegal drugs and related

money laundering. See $282,484, 389 F.3d at 1163 (citing testimony and case law

noting that Miami is a center for drug smuggling and money laundering).

Claimants’ explanations as to the source and ownership of the money were

vague and conflicting. Their purported plans for the money – to buy some kind of

boat, from someone unknown, somewhere in Miami, to be moored someplace

unknown – could be viewed as implausible. See $21,175.00, 521 F. App’x at 740

(holding that presence of large amount of currency and the fact that the owner

“failed to credibly explain why he withdrew money from his bank account and

stashed it under his grandmother's bed weighs in favor of finding the currency was

connected to illegal drug activity”); United States v. $15,740.00 in United States

Funds, No. 5:07-cv-375 (HL), 2008 WL 2227511, at *1-2 (M.D. Ga. May 27, 2008)

(holding that small amount of marijuana, presence of cash in oddly wrapped

bundles, and fact that driver claimed to be going to Atlanta to buy a truck but could

not say where in Atlanta she was going supported reasonable belief that the funds

were subject to forfeiture).

Claimants’ arguments for dismissal do not address the totality of the

circumstances alleged by the Government. Instead, their attack on the sufficiency

of the complaint seeks to “pick off” each discrete fact, take it in isolation, and argue

that it does not show a connection to a drug transaction. See (Docs. 39 at 3-7; 32 at

1-8). As Claimants admit, that is not the correct approach.

It is true that in many asset forfeiture cases, additional facts pleaded or

proved have connected the seized property more specifically to drug activity, such as

a trained police dog alerting on the funds, drug paraphernalia being found nearby,

or a prior connection of the owners to illegal drug activity. See, e.g., United States v.

$121,100.00 in United States Currency, 999 F.2d 1503, 1507-08 (11th Cir. 1993);

United States v. $22,900.00 in U.S. Currency, 8:14-CV-467-T-30MAP, 2014 WL

3809175, at *3 (M.D. Fla. Aug. 1, 2014). At trial, the Government may seek to

adduce additional evidence, if it exists, in order to increase its changes of prevailing.

But at the pleading stage the Government is not required to have adequate

evidence to establish forfeitability. 18 U.S.C. § 983(a)(3)(D). The facts set forth in

the complaint are sufficiently detailed to support a reasonable belief that the

government will be able to prove its case at trial. Supp. R. G(2)(f). The complaint is

also sufficient to allow the Claimants to frame their response and begin an

investigation. Supp. Rule E(2)(a).

It is therefore

ORDERED, ADJUDGED, and DECREED:

1. Claimants “Second Renewed Motion to Dismiss Verified Complaint for

Forfeiture In Rem for Failure to State a Claim upon which Relief Can be

Granted” (Doc. 39) is DENIED.

2. Claimants are directed to file an answer on or before July 8, 2020.

DONE and ORDERED in Chambers in Tampa, Florida, this 17t» day of

June, 2020.

~ Lets

-TOMBARBER i (asstsi‘“‘i;té;™

UNITED STATES DISTRICT JUDGE

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