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United States v. Jerabek Personal Property

United States District Court, E.D. North Carolina, Southern Division

March 10, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JERABEK PERSONAL PROPERTY Specifically Described As: A 2008 Dodge Charger, VIN: 2B3KA43G38H286411, and all attachments thereon; and any and all proceeds from the sale of said property, Defendant, ROBERT E. JERABEK, Claimant.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on claimant's motion to dismiss and for return of property (DE 16), claimant's motion to suppress (DE 22), and the government's motion for summary judgment (DE 18). Pursuant to 28 U.S.C. § 636(b)(1), United States Magistrate Judge Robert B. Jones, Jr. entered memorandum and recommendation ("M&R") (DE 30) wherein it is recommended that the court deny claimant's motion to dismiss and for return of property, deny claimant's motion to suppress, and grant the government's motion for summary judgment. No objections to the M&R have been filed, and the time within which to make any objection has expired. Also before the court is claimant's motion to withdraw his claim in exchange for waiver of his state criminal fine (DE 28). For reasons given, the court ADOPTS the M&R in full, DENIES claimant's motions to dismiss and suppress, and GRANTS the government's summary judgment motion. Claimant's motion to withdraw will be DENIED AS MOOT.

BACKGROUND

The defendant vehicle was seized by officers with the New Hanover County Sheriff's Department ("NHCSD") who were executing a search warrant at claimant's residence on March 28, 2012. Compl. Ex. A., Jordan Decl., 4. On April 19, 2012, claimant was sentenced in New Hanover County District Court to a suspended sentence of six to seventeen (17) months incarceration for manufacture of a controlled substance in violation of N.C. Gen. Stat. § 90-95. See New Hanover Judgment Suspending Sentence ("state court judgment") (DE 16-2). Defendant was also fined five thousand dollars ($5, 000.00). The state court judgment provided that the "[s]eized vehicle is to be returned to defendant if it is not in federal custody. If [the] vehicle is in poss[ession] of federal auth[orities] and not retrievable by defendant then [the] fine is to be waived." The Drug Enforcement Administration ("DEA") subsequently "adopted" the seizure of the defendant vehicle, and mailed claimant an official notice of seizure on May 16, 2012. See Notice of Seizure (DE 16-1).

On August 28, 2012, the government filed, in this court, a complaint for forfeiture in rem against the defendant vehicle. The complaint alleges the defendant vehicle was used or intended to be used to facilitate the transportation, sale, receipt, possession, or concealment of controlled substances in violation of the Controlled Substances Act, 21 U.S.C. 841 et seq. Claimant filed his claim and answer on December 27, 2012. On April 30, 2013, claimant filed the instant motion to dismiss and for return of property. Claimant contends that pursuant to the state court judgment, the defendant vehicle must be returned to him. Claimant also asserts that the defendant vehicle was not purchased with proceeds from illegal activity, and he states that he was not convicted of any criminal charges with respect to his use of the defendant vehicle. This motion was opposed by the government.

The government then filed the instant motion for summary judgment on June 5, 2013, asserting that where claimant neither served response, nor objected, to the government's first request for admissions, the same are deemed admitted and establish that there is no genuine issue of material fact that forfeiture of the defendant vehicle is proper.

On July 3, 2013, claimant filed the instant motion to suppress all evidence resulting from the search of his home, asserting that the search warrant was invalid. Claimant contends that the affidavit submitted in support of the search warrant lacked probable cause because (1) it mis-stated his criminal history, (2) it improperly relied on information from a confidential informant, and (3) it improperly relied on electric bills.

These motions were referred for M&R. After such referral, and before M&R was entered, petitioner filed a motion to withdraw and for miscellaneous relief (DE 28), stating that he would like to withdraw his claim on the condition that the five thousand dollars in fines imposed against him by the state court be waived. This motion is opposed by the government.

In the M&R, entered February 6, 2014, it is recommended that claimant's motion to dismiss and for return of property be denied, claimant's motion to suppress be denied, and the government's motion for summary judgment be granted.

COURT'S DISCUSSION

A. The Motions Referred for M&R

Absent a specific and timely filed objection to a magistrate judge's M&R, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis , 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

1. Claimant's Motion to Dismiss

As set forth in the thoughtful and thorough M&R, the state court judgment does not preclude the instant federal forfeiture action. In an in rem proceeding "the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other.'" United States v. Winston-Salem/Forsyth Cnty. Bd. of Educ. , 902 F.2d 267, 271 (4th Cir. 1990) (quoting Penn Gen. Cas. Co. v. Pennsylvania , 294 U.S. 189, 195 (1935)). Here, the action in state court was ...


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