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United States v. $67, In United States Currency

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

March 27, 2015

UNITED STATES OF AMERICA
v.
$67, 040.00, IN UNITED STATES CURRENCY, Defendant.

MEMORANDUM AND ORDER

RICHARD L. VOORHEES, District Judge.

THIS MATTER is before the Court on Motions to Dismiss filed by Claimants Steven Anthony Miller ("Miller") and George Bryan Bostwick ("Bostwick"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Rules E(2) and G of the Supplemental Rules for Admiralty or Maritime and Asset Forfeiture Claims. (Docs. 9-12). The Government filed its Answer/Response on August 1, 2014. (Doc. 13). There were no reply briefs filed.

I. Nature of Case

On May 20, 2014, the United States commenced this civil forfeiture action in rem pursuant to 18 U.S.C. §§ 981 and 983, 21 U.S.C. § 881, and 19 U.S.C. §§ 1602-1621 (to the extent applicable) by filing a Verified Complaint for Forfeiture In Rem. (Doc. 1). The defendant is "all present and future interest in the $67, 040.00 in United States Currency." (Verified Complaint, ¶ 6). A warrant for arrest of the defendant property issued on May 30, 2014. (Doc. 3). The defendant property was seized and remains in the custody of a federal agency (United States Drug Enforcement Administration). (Verified Complaint, ¶ 7; Doc. 10 - Motion to Dismiss, 2).

The factual basis for seizure of the defendant property is set forth within the Verified Complaint, which alleges that on December 22, 2013, at approximately 1:42 a.m., Claimants George Bryan Bostwick ("Bostwick") and Steven Anthony Miller ("Miller") were in a 2014 Chevrolet Traverse SUV ("Traverse"), Georgia tag CBG-3374, driven by Bostwick and traveling westbound at approximately 95 miles per hour in a 65 miles per hour zone on I-40 in Catawba County, North Carolina. (Verified Complaint, ¶¶ 8-12). North Carolina State Highway Patrol Trooper Joseph D. Connor ("Trooper Connor") initiated a traffic stop, at which time Bostwick represented that the Traverse was a rental vehicle but was unable to produce a rental agreement. (Verified Complaint, ¶¶ 12-13). Bostwick voluntarily represented that he and Miller were on their way to the Asheville airport to catch a flight because Miller had recently learned that his girlfriend was pregnant. (Verified Complaint, ¶ 18).

Trooper Connor investigated Bostwick's level of impairment after smelling alcohol and air freshener but determined that he was not legally impaired after performing field sobriety and alcohol sensor tests. (Verified Complaint, ¶¶ 14-17). Bostwick gave Trooper Connor verbal consent to search the car. (Verified Complaint, ¶ 19). Trooper Connor conducted a safety frisk on Miller and "a large wad of currency" estimated to be $800 was found in his pants pocket. (Verified Complaint, ¶ 21). A second patrolman, North Carolina State Highway Patrol Trooper Michael J. Goudelock, arrived on the scene around 2:19 a.m. to assist with the search. (Verified Complaint, ¶ 28).

During the course of the vehicle search, additional amounts of currency were discovered in various locations, including approximately $2, 000 located under the lid of the center console, approximately $23, 000 located in a brown book bag, and approximately $40, 000 found within a vacuum sealed package encased by diapers and stored in a white Priority Mail box in the rear cargo area of the Traverse. (Verified Complaint, ¶¶ 25, 29-32, 36-43). The $40, 000 was separated into four large bundles of currency and placed in a brown envelope within the vacuum sealed package. (Verified Complaint, ¶¶ 39-40). In addition, each bundle of currency was vacuum sealed and had "10" written on top. (Verified Complaint, ¶¶ 40-41). A total of $67, 040.00 was seized from the car in the following denominations: "213 hundred-dollar bills; 41 fifty-dollar bills; 2, 178 twenty-dollar bills; 12 ten-dollar bills; and 2 five-dollar bills." (Verified Complaint, ¶¶ 44-45). Miller made a voluntary statement that the $23, 000 was for a wedding he was traveling to in Asheville. (Verified Complaint, ¶ 32). The $40, 000 was explained by Bostwick, who reported that he intended to use the money to purchase vehicles and return to North Carolina and sell the cars for profit. (Verified Complaint, ¶¶ 42-43). The $67, 040 found within the Traverse was seized by the state troopers.

In addition, residue amounts of marijuana were observed in the carpet between the driver's seat and center console as well as inside a duffle bag retrieved from the rear cargo area of the Traverse. (Verified Complaint, ¶¶ 33-35). The Verified Complaint identifies two prior state felony drug convictions of the driver of the car, George Bryan Bostwick - a 2006 conviction for possession of Schedule II controlled substances in violation of N.C. G.S. § 90-95(a)(3) and felony possession of marijuana in violation of N.C. G.S. § 90-95(d)(4) in the North Carolina General Court of Justice, Carteret County Superior Court, and a 2011 conviction for possession with intent to sell and deliver a Schedule I controlled substance in violation of N.C. G.S. § 90-95(a)(1) in the North Carolina General Court of Justice, Pitt County Superior Court. (Verified Complaint, ¶¶ 46-47).

The said traffic stop on December 22, 2013, and subsequent vehicle search that resulted in seizure of the $67, 040 did not result in a criminal conviction. Bostwick was cited for possession of drug paraphernalia in light of the blue duffle bag smelling of marijuana. However, the citation against Bostwick was dismissed on March 6, 2014 by the Catawba County District Court. (Doc. 5 / Exh. A; Docs. 10, 2; 12, 2). Miller was not charged with any criminal offense.

According to the United States, seizure and forfeiture of the defendant property is legal in that the money constitutes "proceeds traceable to transactions and exchanges for controlled substances or listed chemicals in violation of Chapter 13, Drug Abuse Prevention and Control, of Title 21 of the United States Code, 801, et seq. ; and was money... used or intended to be used, in any manner or part, to commit or to facilitate the commission of violations punishable by more than one year's imprisonment of Chapter 13, Drug Abuse Prevention and Control, of Title 21 of the United States Code, 801, et seq. " (Verified Complaint, ¶ 48).

A Verified Claim contesting forfeiture was submitted on June 27, 2014 by Claimant Miller. (Doc. 5). Miller's claim alleges that his interest is $25, 000 of the defendant property. Similarly, Claimant Bostwick filed a Verified Claim and Answer on July 1, 2014 and July 2, 2014. (Docs. 6, 7). Bostwick asserts that his interest is $42, 000 of the defendant property. On July 17, 2014, Bostwick and Miller filed Motions to Dismiss alleging insufficiency of the pleadings.[1]

II. Legal Standard

A motion filed pursuant to 12(b)(6) of the Federal Rules of Civil Procedure challenges the legal sufficiency of a complaint.[2] See Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).

In order to survive a Rule 12(b)(6) motion to dismiss, the facts alleged must be sufficient "to raise a right to relief above the speculative level" and "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Requiring plausibility "does not impose a probability requirement at the pleading stage." Id. at 556. It does, however, demand more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 662 (2009). Ultimately, a claim has facial plausibility when the plaintiff ...


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