United States v. Approximately $13,205.54 in U.S. Currency

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:19-cv-00007-MR

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

APPROXIMATELY $13,205.54 IN U.S. )

CURRENCY SEIZED FROM RAHKIM )

FRANKLIN ON AUGUST 21, 2018 IN )

RUTHERFORD COUNTY, NORTH )

CAROLINA, )

)

Defendant. )

_______________________________ )

THIS MATTER is before the Court on the Claimants’ Motion to Strike

Certain Paragraphs of First Amended Complaint. [Doc. 23].

I. BACKGROUND

According to the Amended Complaint, on August 21, 2018, an officer

with the Rutherford County Sheriff’s Office stopped Rahkim Franklin

(“Franklin”) and searched his vehicle. [Doc. 17 at ¶¶ 8-12]. During the

search, the officer discovered a concealed firearm, marijuana shake, and

$13,205.54 (the “Defendant Currency”). [Id. at ¶13-15]. The officer arrested

Franklin for possession of a concealed firearm and seized the Defendant

Currency. [Id. at ¶ 19-20]. While the arrest was occurring, Shelly Medrano

(“Medrano”) arrived at the scene and claimed that the Defendant Currency

is hers. [Id. at ¶ 16].

The Drug Enforcement Administration (“DEA”) initiated an

administrative forfeiture action following the seizure of the Defendant

Currency. [Id. at ¶ 25]. On January 7, 2019, the Government filed its original

Complaint alleging that the Defendant Currency is subject to forfeiture

pursuant to 21 U.S.C. § 881(a)(6). [Doc. 1].

On February 7, 2019, Franklin and Medrano (collectively “Claimants”)

filed a Verified “Joint Claim of Ownership,” asserting that the Defendant

Currency belongs to both of them “and is money they obtained through

employment and personal savings.” [Doc. 5]. On February 21, 2019,

Claimants filed an Answer to the Government’s Complaint, which included a

motion to strike certain paragraphs of the Complaint. [Doc. 7].

On May 21, 2019, the Claimants filed a motion pursuant to Rule 12(f)

of the Federal Rules of Civil Procedure to strike paragraphs 21(a), 21(b), 22,

23, and 24 of the Government’s Complaint as immaterial, impertinent, and

scandalous. [Docs. 15, 16]. In response to the Claimant’s motion, on June

3, 2019, the Government filed an Amended Complaint that corrected certain

errors and revised certain paragraphs that were in the original Complaint.

[Doc. 17]. The Court denied the Claimants’ motion to strike as moot on June

4, 2019. [Text-only Order entered June 4, 2019].

On June 19, 2019, the Claimants filed their Answer to the Amended

Complaint, which included a motion to strike certain paragraphs of the

Amended Complaint. [Doc. 19]. On August 12, 2019, the Claimants again

filed a motion pursuant to Rule 12(f) of the Federal Rules of Civil Procedure

to strike paragraphs 21(a), 21(b), 22, 23, and 24 of the Government’s

Complaint as immaterial, impertinent, and scandalous. [Docs. 23, 24].

Those paragraphs read as follows:

21. Franklin has been implicated in numerous reports

and incidents, including but not limited to incidents

involving narcotics. Reports and incidents include the

following:

a. On February 4, 2015, law enforcement visited the

residence at 121 Hill Street Forest City, North

Carolina, in order to arrest Iykiemie Franklin, Rakhim

[sic] Franklin’s brother, on an outstanding warrant for

Simple Possession of Schedule II Controlled

Substance in violation of North Carolina General

Statute § 90-95 (d)(2). Although Iykiemie Franklin

was not at the residence, law enforcement did locate

Rakhim [sic] Franklin and one other individual exiting

a laundry room from which an overwhelming smell of

marijuana was emanating. One of the individuals

advised that the two had just smoked marijuana.

Although Franklin and the individual declined

consent to search the room, the owner of the

residence consented to a search whereby law

enforcement ultimately found two large bags of

marijuana in the laundry room.

b. In January 2017, a concerned parent delivered a

backpack that contained three vacuum sealed bags

of marijuana to the Forest City Police Department.

The parent advised that the parent had found the

backpack while cleaning the child’s room in the

parent’s house. The parent relayed the parent’s

suspicion that Franklin and his family kept the child

high on marijuana and paid small amounts of money

to the child so that the child would work for Franklin.

The total amount of marijuana in the bags was 470

grams in the first bag, 469 grams in the second bag,

and 484 grams in the third bag.

22. Although Franklin purportedly operates a

detailing business, law enforcement has not

identified any information to suggest that Franklin

serves customers or generates revenue, much less

substantial revenue sufficient to justify his

possession of a large amount of currency, via this

business, nor has law enforcement identified

customers at the purported business location.

23. Franklin has previously been charged in North

Carolina with, among other things, Felony

Possession of Cocaine in violation of N.C.G.S. § 90-

95(d)(2); Simple Possession of Marijuana in violation

of N.C.G.S. § 90-95(d)(4); and Possession of Drug

Paraphernalia in violation of N.C.G.S. § 90-

113.22(a).

24. Franklin has previous convictions, including for

Simple Possession of Marijuana in violation of

N.C.G.S. § 90-95(d)(4).

The Government has filed an opposition to the Claimants’ motion.

[Doc. 25].

Having been fully briefed, this matter is ripe for disposition.

II. STANDARD OF REVIEW

Rule 12(f) states that the Court “may strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” Fed. R. Civ. P. 12(f). “Rule 12(f) motions are generally viewed with

disfavor because striking a portion of a pleading is a drastic remedy and

because it is often sought by the movant simply as a dilatory tactic.” Waste

Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (citation

and quotation marks omitted). “A motion to strike places a ‘sizable burden

on the movant,’ and would typically require a showing that denial of the

motion would prejudice the movant.” Miller v. Rutherford County, No. 1:08-

cv-441, 2008 WL 5392057, at *4 (W.D.N.C. Dec. 19, 2008) (citations

omitted). Such motion will be denied unless the “challenged allegations have

no possible relation or logical connection to the subject matter of the

controversy and may cause some form of significant prejudice to one or more

of the parties.” Scherer v. Steel Creek Prop. Owner Ass’n, No. 1:13-cv-121,

2014 WL 813824, at *1 (W.D.N.C. Mar. 3, 2014) (citation omitted).

III. DISCUSSION

A. Paragraphs 21(a) and 21(b)

Paragraphs 21(a) and 21(b) allege that Franklin previously had some

connection to two drug-related incidents. [Doc. 17 at ¶ 21]. The Claimants,

however, argue that paragraphs 21(a) and 21(b) “have no other purpose than

to prejudice the Court and the trier of fact” and are “immaterial.” [Doc. 24 at

5-6]. The Government counters that “[p]revious incidents that concern Mr.

Franklin’s involvement with drugs bear directly on the subject matter of this

litigation, and indeed, support the Government’s case.” [Id.]. The

Government argues that it is “[t]he Government’s theory in this case that the

Defendant Currency seized from Mr. Franklin constitutes drug proceeds, or

was money used or intended to be used to facilitate a violation of the drug

trafficking laws.” [Doc. 25 at 9].

“A claimant's record of drug activity is a highly probative factor in the

forfeiture calculus.” United States v. $67,220.00 in U.S. Currency, 957 F.2d

280, 286 (6th Cir. 1992) (citation omitted). As such, it is possible that a

person’s “history of involvement with illegal drugs,” United States v.

Currency, U.S., $147,900.00, 450 F. App'x 261, 264 (4th Cir. 2011), or their

“contemporaneous affiliation with known drug traffickers,” United States v.

Ten Thousand Seven Hundred Dollars & No Cents in U.S. Currency, 258

F.3d 215, 224 (3d Cir. 2001), can serve as evidence in a forfeiture

proceeding.

The allegations contained in paragraphs 21(a) and 21(b) are not

“immaterial, impertinent, or scandalous” because they put the Claimants on

notice of evidentiary avenues in which the Government may seek to connect

Franklin to drug activities. As such, the Claimants’ motion to strike

paragraphs 21(a) and 21(b) will be denied.

B. Paragraph 22

Paragraph 22 alleges that law enforcement has not found information

related to Franklin’s detailing business that suggests that Franklin has any

legitimate income. [Doc. 17 at ¶ 22]. The Claimants argue that paragraph

22 consists of “innuendo and insult” and represents “Orwellian allegations”

that are “immaterial and impertinent” and made “for one purpose: to create

prejudice.” [Doc. 24 at 6]. The Government counters that “allegations

involving Mr. Franklin’s lack of legitimate income bear a direct and logical

connection to the facts of this case.” [Doc. 25 at 11].

A person’s reported income and work history can help determine if

currency implicated in a forfeiture proceeding is connected to drug activities.

See United States v. $174,206.00, 320 F.3d 658, 662 (6th Cir. 2003); see

also Currency, U.S., $147,900.00, 450 F. App'x at 264.

The allegations contained in paragraph 22 are not “immaterial,

impertinent, or scandalous” because they put the Claimants on notice of

evidence the Government may adduce to show that the Defendant Currency

is connected to drug activities rather than Franklin’s legitimate business. As

such, the Claimants’ motion to strike paragraph 22 will be denied.

C. Paragraphs 23 and 24

Paragraph 23 lists Franklin’s prior drug charges and paragraph 24 lists

a single conviction for marijuana possession. [Doc. 17 at ¶ 23, 24]. The

Claimants argue that those paragraphs fail to mention that “most [of the]

charges were dismissed” and that this Court has previously ruled that the

inclusion of a criminal record “is immaterial, impertinent and prejudicial.”

[Doc. 24 at 6-7] (citing E.E.O.C. v. Bo-Cherry, Inc., No. 3:13-CV-00210-

MOC, 2013 WL 2317724, at *2 (W.D.N.C. May 28, 2013). The Government

counters that the criminal charges are facts in their own right and that Bo-

Cherry and this case are incomparable. [Doc. 25 at 12].

The Complaint alleges facts regarding drug charges that have been

brought against Franklin. The Government did not have to include that some

of those charges were dismissed because the complaint is not required to

include every fact that the Claimants deem relevant or contextual. Moreover,

the Claimants have failed to show that denial of their motion would “cause

some form of significant prejudice to one or more of the parties to the action.”

Scherer, 2014 WL 813824, at *1.

The Claimants further argue that Bo-Cherry requires criminal records

to be stricken from complaints as immaterial, impertinent, and scandalous.

[Doc. 24 at 6]. Bo-Cherry, however said that “[a] pleading should only be

stricken when the pleading bears no relationship to the controversy.” Bo-

Cherry, Inc., 2013 WL 2317724 at *1 (citing Brown & Williamson Tobacco

Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953)). Bo-Cherry was

an employment discrimination case, where the criminal record was irrelevant

to the issues involved. 2013 WL 2317724, at *2.

This case, however, involves civil asset forfeiture related to drug

activities. While it may be questionable as to whether evidence of prior

convictions may be admissible at trial, there is a possibility that they will be.

See Currency, U.S., $147,900.00, 450 F. App'x at 264 (evidence of a

person’s “history of involvement with illegal drugs” is relevant in a forfeiture

proceeding). Therefore, the allegations contained in paragraph 24 are not

“immaterial, impertinent, or scandalous” because they connect Franklin to

drug activities and will not be stricken.

The allegations in paragraph 23 are more problematic. They simply

set forth that Franklin has previously been accused of drug activities. It is

unlikely that the mere fact of his arrest would be relevant to prove his

participation in drug activities, or that such evidence would be admissible at

trial. To the extent, however, that the allegations in paragraph 23 are merely

a short-hand manner of giving notice of the facts that may have prompted

such charges, this paragraph is not immaterial, impertinent or scandalous.

Therefore, this paragraph will likewise not be stricken. In the future,

however, the Government’s counsel is encouraged not to plead the basis for

forfeiture in such an imprecise manner.

IV. CONCLUSION

The Claimants have failed to meet their high burden to show that denial

of their Rule 12(f) motion would prejudice them or that the allegations

contained in the Amended Complaint are “immaterial, impertinent, or

scandalous.” Fed. R. Civ. P. 12(f). Accordingly, Motion to Strike Certain

Paragraphs of First Amended Complaint [Doc. 23] will be denied.

ORDER

IT IS, THEREFORE, ORDERED that the Claimants’ Motion to Strike

Certain Paragraphs of First Amended Complaint [Doc. 23] is DENIED.

ITIS SO ORDERED. Signed: September 30, 2019

A Reidinger ie Re

United States District Judge Aas

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