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United States v. $63

United States District Court, W.D. North Carolina, Charlotte Division

July 1, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
$63, 289.00 IN UNITED STATES CURRENCY, Defendant.

ORDER

FRANK D. WHITNEY, Chief District Judge.

THIS MATTER is before the Court following a bench trial held on March 25, 2014. After hearing the evidence presented at trial and reviewing both parties' Proposed Findings of Fact and Conclusions of Law (Docs. Nos. 31, 32), the Court finds (1) the United States established by a preponderance of the evidence that Defendant property, sixty-three thousand two hundred eighty-nine dollars ($63, 289) in U.S. Currency, was used to facilitate the commission of illegal narcotics activity, and was proceeds traceable to transactions and exchanges for controlled substances; and (2) Claimant Brenda McClure ("Claimant") failed to satisfy her burden in proving she was an "innocent owner" of Defendant property. Accordingly, Defendant property is subject to forfeiture pursuant to 21 U.S.C. ยง 881(a)(6). The following constitutes the Court's findings of fact and conclusions of law.

I. FINDINGS OF FACT

1. On December 19, 2012, Claimant Brenda Jones McClure ("Claimant"), age 65, was the sole owner of the property as the head of a household of six people; daughters Monesha McClure, age 16, and Doris McClure, age 48; grandson Marico Antwain McClure ("Rico"), age 31; and two great-grandchildren, Serena McClure, age 7, and Jain McClure, age 8; at 113 Forest Drive, Harrisburg, Cabarrus County, North Carolina. (Doc. No. 19; Tr. at 98-100, 207-08).

2. Marico McClure lived continuously at 113 Forest Drive from 2009 through March 25, 2014. (Doc. No. 19; Tr. at 183, 196).

3. On November 22, 2012, Marico McClure was convicted of Possession with the Intent to Manufacture, Sell, and Deliver Marijuana, a Felony under North Carolina law, in Brunswick County, North Carolina. (Docs. Nos. 19, 21-8). Marico McClure resided at 113 Forest Drive with Claimant and three minor children at the time of the conviction. (Doc. No. 19; Tr. at 183-84). Despite the conviction, Claimant did not evict Marico McClure from 113 Forest Drive. (Tr. at 185, 273).

4. On March 24, 2003, Marico McClure was convicted of felony possession of marijuana in Cabarrus County, North Carolina. The offense date was January 11, 2003. (Docs. Nos. 17-9, 19). On the date of the offense and of the conviction, Marico McClure was living at 113 Forest Drive. (Tr. at 105, 183, 197). Despite this conviction, Claimant did not evict Marico McClure from 113 Forest Drive. (Tr. at 272-73).

5. That 2003 conviction of Marico McClure was based on the discovery of two pounds of marijuana in the ceiling of the residence at 113 Forest Drive. (Tr. at 18-19, 186).

6. Charlotte-Mecklenburg Police Officer Chris Newman ("Officer Newman"), testified that he has known both Marico McClure and Claimant for a number of years, has been to 113 Forest Drive "numerous times, " and knows Doris (Dora) McClure. (Tr. at 18-19, 21, 274-75).

7. On December 19, 2012, Claimant owned a white Lincoln Navigator (the "Navigator"), license PWT9485. (Docs. Nos. 1, 6, 19).

8. Claimant testified that all members of the Claimant's household, including Marico McClure, knew Claimant stored extra keys to the Navigator in a jewelry box in her bedroom. (Tr. at 135-36, 244).

9. Eduardo Sanchez Garcia, a person cooperating with law enforcement, testified that on or about December 17, 2012, he met Marico McClure at an International House of Pancakes where Marico showed Garcia what appeared to be cocaine. (Tr. at 63-66, 72-74). On December 19, 2012, at about nine or ten a.m., Marico McClure again met Garcia at a Hardee's restaurant. Garcia testified that the two agreed that Marico McClure would purchase two kilos of cocaine from Garcia later that day for thirty-one thousand five hundred dollars ($31, 500) per kilo. (Tr. at 63-66, 72-74).

10. Between mid-day and 2:00 p.m. on December 19, 2012, City of Gastonia Police Officer Morris Elliot observed Marico McClure drive a white Lincoln Navigator up to 113 Forest Drive. When Marico McClure got out of the Navigator and entered the residence from the back, he had nothing in his hands. When he subsequently left the residence and returned to the Navigator, Officer Elliot observed Mr. McClure carrying a white plastic bag and a black suitcase-type bag. (Tr. at 57-61, 100) ("Rico lives on the back end of the house.")

11. After leaving 113 Forest Drive, Task Force Officer Lindsey Lail observed Marico McClure leave the K-mart in Concord, North Carolina with a small bag. (Tr. at 52, 55).

12. At about 1:55 p.m., Officer Newman executed a stop on the Navigator in response to law-enforcement information he had received about a drug investigation involving a white Lincoln Navigator. As he approached the vehicle "in plain view was a - like a shopping bag that had money falling out of it." (Tr. at 12-14, 21-22, 41, 76).

13. Officer Newman has known Marico McClure for ten years. Marico McClure greeted Officer Newman from the Navigator's driver side window by saying "Hello, Mr. Newman." Marico McClure was ...


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