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United States v. $240

United States District Court, M.D. North Carolina

May 25, 2017

$240, 100.00 in U.S. CURRENCY, Defendant.


          OSTEEN, JR., District Judge

         The United States of America (“Plaintiff” or the “Government”) brought a civil forfeiture proceeding against $240, 100.00 in U.S. currency (the “Defendant Property”). (Doc. 1.) Claimant Shunika Hemingway Henderson (“Claimant”) filed a Verified Notice of Claim and Answer. (Docs. 5, 6.) Presently before the court is the Government's Motion for Summary Judgment. (Doc. 25.) Claimant has responded in opposition (Doc. 29), and the Government has replied (Doc. 30). For the reasons that follow, the motion will be granted.


         The following facts are presented in the light most favorable to Claimant:

         The Durham Police Department (“DPD”) began making controlled purchases of small quantities of crack cocaine from Anthony Henderson (“Henderson”), Claimant's husband, beginning in 2011. (Pl.'s Br. in Supp. of Summ. J. (“Pl.'s Br.”), GE A, Declaration of David M. Walker (“Walker Decl.”) (Doc. 26-2) ¶ 4.) In April 2014, a DPD officer used a confidential informant to make two controlled purchases of $20 worth of crack cocaine from Henderson at his body shop business in Durham. (Pl.'s Br., GE B, Declaration of Brian T. Black (“Black Decl.”) (Doc. 26-3) ¶ 3.) On May 1, 2014, DPD officers executed a search warrant for the body shop. (Id. ¶ 4.) DPD officers searched Henderson and found a set of keys in his pockets, which were used to unlock the office in the business. (Id. ¶ 5.) DPD officers also found a single key in Henderson's pocket that fit the lock to a locked drawer of a desk in the office. (Id. ¶ 7.) Inside the drawer was a loaded 9mm Taurus handgun, various pill bottles, and two plastic bags containing a substance that later tested positive for crack cocaine. (Id. ¶ 5; Walker Decl. (Doc. 26-2) ¶ 14.) The five employees present on the premises were also searched and none of their keys were found to fit the drawer's lock. (Black Decl. (Doc. 26-3) ¶ 7.)

         During the search of the body shop, DPD officers also brought a certified narcotics detection canine to perform an exterior sniff of a Ford F-150 truck parked in the business parking lot. (Pl.'s Br., GE C, Declaration of Kelly Stewart (“Stewart Decl.”) (Doc. 26-4) ¶¶ 1, 4.) The truck had been seen at Henderson's residence earlier that day. (Black Decl. (Doc. 26-3) ¶ 4.) The canine positively alerted to the presence of an illegal narcotic odor on the passenger side door of the truck. (Stewart Decl. (Doc. 26-4) ¶ 4.)

         Also on May 1, 2014, DPD officers executed a search warrant for Henderson's residence. During the search, Claimant arrived at the residence with her attorney. (Pl.'s Br. at 4; Black Decl. (Doc. 26-3) ¶¶ 8, 9.) DPD officers located a safe in the master bedroom closet. (Id. ¶ 9.) Inside the safe, officers found $240, 100.00 in U.S. currency, all of which was in $100 bills wrapped in rubber bands. (Id. ¶ 10; Pl.'s Br., GE H, Deposition of Shunika Hemingway Henderson (“Claimant's Dep.”) (Doc. 26-9) at 41.)[1] Officers seized and sealed the $240, 100.00 in currency in front of Claimant and her attorney; it was later taken to the Raleigh DEA Office where it was secured. (Walker Decl. (Doc. 26-2) ¶ 19.)

         On April 11, 2016, Henderson pleaded guilty in Durham County Superior Court to possession with intent to distribute, in violation of N.C. Gen. Stat. § 90-95(a)(1). (Pl.'s Br., GE L, Doc. 26-13 at 3.) Henderson received a suspended sentence for twelve months of supervised probation. (Id. at 4.) He was also ordered to “forfeit all seized property and contraband.” (Id.)

         For the tax years 1999 through 2010, Henderson reported income ranging from $11, 586 to $33, 734. (Pl.'s Br., GE I (Doc. 26-10) at 6, 9, 14.) In 2001 and 2002 Henderson filed jointly with Claimant wherein the total income reported was $34, 249 and $37, 219. (Id. at 6.) Henderson's income came from his business, rental properties, and interest. (Doc. 26-10.) Henderson did not provide more recent tax returns, but testified that his recent income “probably just went up a little bit.” (Pl.'s Br., GE G, Deposition of Anthony Henderson (“Henderson Dep.”) (Doc. 26-8) at 12.)

         Claimant's reported income from 2008 to 2014 ranged between $28, 940 and $36, 850. (Pl.'s Br., GE J (Doc. 26-11).) Her job as a probation/parole officer has been her only source of income since 2004. (Pl.'s Br., GE F, Interrogatories Directed to Claimant (Doc. 26-7) at 9.)

         In addition to Henderson's reported income, he testified he earned money landscaping and doing “side tows” towing cars, but he could not estimate how much he earned or present any documentation to evidence this income. (Henderson Dep. (Doc. 26-8) at 4-10.) Claimant stated in her Interrogatories that in addition to Henderson's body shop business, Henderson was moonlighting by painting cars. (Doc. 26-7 at 7.) Henderson testified he put some of these earnings in the bank and some he put in the safe or gave to Claimant to put in the safe. (Henderson Dep. (Doc. 26-8) at 17.) Henderson testified that he did not make any money from selling drugs. (Id. at 28-29.)

         At the time of Henderson's arrest, Claimant was driving a BMW 7 Series, with a current tax value estimated at $23, 530. (Id. at 33; Doc. 26-7 at 11.) Henderson testified that he purchased the BMW using insurance money from a totaled Mercedes, money from selling another Mercedes, and cash from his business. (Henderson Dep. (Doc. 26-8) at 34-39.) Henderson testified that Claimant never asked him where the cash came from. (Id. at 39.)

         Henderson also owned a 2004 Cadillac Escalade, a 2009 BMW 7 Series, and a 2011 Ford F-150. (Id. at 14, 41-42.) He testified he paid for these with money saved from either his body shop, landscaping, or towing. (Id. at 15.) As for other household expenses, Henderson testified that he and his wife split the mortgage (id. at 31-32), and that he also paid for groceries, kids' clothes, and dental bills (id. at 41).

         Claimant testified that Henderson had paid the full $1, 900 monthly mortgage since 2009. (Claimant's Dep. (Doc. 26-9) at 23-24.) Claimant also testified that since approximately 2008, Henderson paid household expenses such as food, necessities, kids' clothes, utility bills, and the full mortgage, as well as paying approximately $600 per month in child support to another woman. (Id. at 6-7, 20-21.) Claimant testified that her expenses exceed her income. (Id. at 56.)

         Henderson testified that he bought the safe. (Henderson Dep. (Doc. 26-8) at 24.) However, he testified that Claimant was also putting money in the safe. (Id. at 20-21, 30.) Claimant testified that she bought the safe but she never used it and never put any money into it. (Claimant's Dep. (Doc. 26-9) at 27-28, 44.) She further testified she saw the safe open only once or twice in the early 2000s. (Id. at 29.) She testified she never questioned Henderson about the safe or asked how much money was in it. (Id. at 30-31, 39, 45.) Claimant was aware that Henderson had nice cars and that he paid for them with cash but this did not cause her any concern and she did not ask him where the cash came from. (Id. at 47-51.)

         Claimant was a probation/parole officer in Durham from 2004 to 2013, and has been a supervising officer since 2013. (Id. at 9-10.) During that time, she has supervised drug offenders and is familiar with the drug scene in Durham. (Id. at 11.) She is aware that cocaine is a big issue in Durham, and she has supervised parolees who sold crack cocaine. (Id. at 12-13.) Claimant has performed searches of parolees when something triggered suspicion, such as the parolees being around a certain crowd or if the parolees were wearing expensive things even though they were not working. (Id. at 15, 17.)

         Claimant testified that she would go to the body shop every day up until Henderson was arrested. (Id. at 34.) The body shop was in a drug-infested area, and Claimant believed some of the employees may have had a chemical addiction but she never expressed any concerns about it to Henderson. (Id. at 35-38.)

         Claimant and Henderson separated on May 19, 2014, following his arrest. (Id. at 26-27.) They are not divorced, nor is there any agreement regarding ...

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