United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
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
OF THE CASE
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.
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.
OF THE FACTS
relevant facts alleged in the complaints may be summarized as
follows. 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.
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.
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
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.
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.
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.
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.