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United States v. $40

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

May 24, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
$40, 000.00 IN UNITED STATES CURRENCY, Defendant. UNITED STATES OF AMERICA, Plaintiff,
v.
$40, 000.00 IN UNITED STATES CURRENCY, Defendant.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         These matters come before the court on motions to dismiss of claimants Jason Do (No. 5:17-CV-398-FL at ¶ 12) and Son Ba Do (No. 5:17-CV-485-FL at ¶ 18). The motions have been fully briefed, and in this posture the issues presented are ripe for ruling. For the reasons noted, the motions are denied.

         STATEMENT OF THE CASE

         The government initiated these civil forfeiture actions on August 3, 2017, as to claimant Jason Do, and September 21, 2017, as to claimant Son Ba Do, by filing the same complaint in each case for forfeiture in rem against $40, 000.00 in U.S. currency to enforce 18 U.S.C. § 981(a)(1)(c) and 21 U.S.C. § 881(a)(6), providing for the forfeiture constituting or derived from proceeds traceable to violations of 21 U.S.C. § 841, specifically possession with intent to distribute a controlled substance. On October 22, 2017 and January 5, 2018, claimants Jason Do and Son Ba Do, respectively, filed claims alleging ownership and possessory interest in defendant funds.

         On November 16, 2017 and January 26, 2018, claimants Jason Do and Son Ba Do, respectively, filed the instant motions to dismiss, both arguing the government has failed to allege sufficient facts to support a reasonable belief that the currency at issue is subject to forfeiture.

         STATEMENT OF THE FACTS

         The relevant facts alleged in the complaints may be summarized as follows.[1] Homeland Security Investigations (“HSI”) Task Force Officers (“TFO”) at Raleigh Durham International Airport encountered claimants after Transportation Security Administration Officers located a large amount of bulk currency their carry-on items. Claimants provided implausible and vague statements as to the origins of the money and the reason for their travel. HSI TFO seized the bulk currency for violations of 18 U.S.C. §1956, money laundering, and also seized cell phones and electronic media from claimants.

         HSI TFO Aaron Woodlief (“Woodlief”) began his investigation by interviewing claimant Jason Do, who claimed to be a nail care specialist in “High Park” in Raleigh, North Carolina, and a successful gambler who had won $20, 000.00 at the Harrah's Casino in Cherokee. Claimant Jason Do claimed he and claimant Son Ba Do, his brother, were traveling to the Seattle, Washington area to gamble, but was unable to produce the name of the casino where they were planning to gamble or the hotel where they were planning to stay. Claimant Jason Do was unable to produce any information of further accommodations or travel plans once claimants arrived in Washington.

         A criminal history check for claimant Jason Do revealed a July 9, 2013, arrest in Wake County, North Carolina for possession with intent to sell and deliver marijuana, conspiracy to sell/deliver marijuana, conspiracy to sell/deliver marijuana, possession of drug paraphernalia, and resist, delay and obstruction a public officer. The case was dismissed without leave by the district attorney's office with a note stating claimant Jason Do's co-defendant accepted responsibility.

         A criminal history check for claimant Son Ba Do revealed a January 22, 2015, arrest by the city of Raleigh Police Department for possession with intent to sell/deliver marijuana, felony maintaining a dwelling for controlled substances, and conspiracy to sell/deliver marijuana. Claimant Son Ba Do pleaded guilty and successfully completed deferred prosecution and the charges were dismissed by the district attorney's office. In this case, an individual Calvin Lee had shipped approximately 4.5 pounds of marijuana to claimant Son Ba Do from an address in Renton, Washington.

         Woodlief spoke with Harrah's Cherokee Manager who stated that claimant Jason Do was last at Harrah's Cherokee on April 2, 2017, but had not been a big money winner since December 2015. On April 10, 2017, Woodlief requested TFO Carl Rodriguez and his narcotics detection canine partner (K-9) Arko to conduct a controlled K-9 search. The K-9 search was conducted at the RDU Police Headquarters. The large amount of money was placed in a piece of empty luggage and randomly lined up with 5 other similar empty bags out of the K-9 and handler's view. TFO Rodriguez and Arko conducted the search. Arko alerted to the presence of narcotics on the bag containing the seized money.

         On April 10, 2017, Woodlief took the seized currency to a Wells Fargo Bank, where employees counted and found the combined total of the currency found in the possession of claimants was $80, 000.00. Claimants had claimed they were each carrying $30, 000.00.

         Summons was issued to the Cherokee Gaming Commission. In response, officers received currency transaction reports (“CTR”) on both claimants. Since 2014, claimant Jason Do has had $441, 385.00 reported as cash into the Cherokee Casinos and $307, 250.00 cash out. Claimant Son Ba Do has had $47, 020.00 cash into the Cherokee Casinos and $168, 706.00 cash out. Additionally, a review of the players reports with regard to some of the dates and times referenced by the CTRs show winnings reported that do not match the amount reported won by the casino. Finally, claimant Jason Do has lost a total of approximately $47, 499.00 at the Cherokee Casino since 2014, and claimant Son Ba Do has won approximately $32, 493.00 during that same time frame.

         COURT'S ...


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