United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant's motion for
release of one 2018 Toyota Land Cruiser
(“automobile”) for purposes of paying counsel in
this action. The court held hearing on defendant's motion
for release of funds (DE 186) on March 28, 2019. At hearing,
the court resolved the motion as to all property for which
defendant sought release, except for the automobile.
(See Order (DE 203)). The court directed the
government to produce evidence showing probable cause the
automobile bore a substantial connection to money laundering.
(Order (DE 203) at 3). The government timely responded, and
defendant responded in opposition. The issues raised are ripe
for decision. For the reasons that follow, defendant's
motion is denied in remaining part.
Standard of Review
government is entitled to seize assets subject to forfeiture
pending a criminal trial even if a defendant needs those
assets to retain counsel. United States v. Monsanto,
491 U.S. 600, 615 (1989). A challenge to a pretrial seizure
order does not permit the court to second-guess a grand
jury's finding that probable cause supports the charged
offense. Kaley v. United States, 571 U.S. 320,
330-31 (2014) (holding a grand jury's finding of probable
cause is “conclusive” for purposes of freezing
defendant's property). However, the court may revisit a
finding of probable cause that certain assets are subject to
forfeiture. Miller, 911 F.3d at 232 33 (citing
Kaley, 571 U.S. at 324); United States v.
Farmer, 274 F.3d 800, 803-06 (holding a defendant may
obtain pretrial hearing on the issue of whether the
government has shown probable cause to seize assets needed to
case of a money laundering offense, pretrial forfeiture of
assets is only appropriate for property “involved
in” or “traceable to” the alleged offenses,
and not substitute property. See United States v.
Miller, 911 F.3d 229, 23233 (4th Cir. 2018); United
States v. Chamberlain, 868 F.3d 290, 297 (4th Cir. 2017)
(en banc). “When legitimate funds are commingled with
property involved in money laundering or purchased with
criminally derived proceeds, the entire property, including
the legitimate funds, is subject to forfeiture.”
Miller, 911 F.3d at 232 (citing United States v.
Kivanc, 714 F.3d 782, 794 (4th Cir. 2013)).
burden is on the government to show probable cause to believe
that the assets are forfeitable, which requires showing that
they have a “substantial connection” to the crime
on which forfeiture is predicated. United States v.
Herder, 594 F.3d 352, 364 (4th Cir. 2010); United
States v. Leak, 123 F.3d 787, 79192 (4th Cir.1997).
“Probable cause” is defined as “reasonable
ground for belief of guilt, supported by less than prima
facie proof but more than mere suspicion.”
Leak, 123 F.3d at 792. When making the probable
cause determination, the court is not to consider evidence
piecemeal, but rather must consider evidence within the
totality of the circumstances at issue. United States v.
Thomas, 913 F.2d 1111, 1117 (4th Cir.1990). “Under
the substantial connection test, the property either must be
used or intended to be used to commit a crime, or must
facilitate the commission of a crime. At minimum, the
property must have more than an incidental or fortuitous
connection to criminal activity.” United States v.
$95, 945.18, U.S. Currency, 913 F.2d 1106, 1110 (4th
Cir. 1990) (citing United States v. Schifferli, 895
F.2d 987, 990 (4th Cir.1990)).
government first argues that the court does not have
jurisdiction to order the release of the automobile. (Gov.
Resp. (DE 207) at 3). However, the government also concedes a
grand jury in this district has returned a third superceding
indictment listing the automobile in the forfeiture
allegation. (Gov. Resp. (DE 207) at 3). Accordingly, the
government's jurisdictional objection is moot.
to the merits, the government has established a substantial
connection between the automobile and the alleged money
laundering. The automobile was purchased for $82, 677.58.
(Purchase Agreement (DE 207-1) at 1). Approximately $27,
307.00 of the purchase price was covered by trade-in
allowance, while the remaining $55, 370.58 was paid by
cashier's check. (Purchase Agreement (DE 207-1) at 1;
Cashier's Check (DE 207-2) at 1). The cashier's check
was funded through defendant's Bank of America
(“BOA”) account ending in 9748. (Check Order (DE
207-3) at 1). The court has already found probable cause that
BOA 9748 bears a substantial connection to the money
laundering offenses charged. (See Order (DE 203) at
4). Consequently, defendant's motion for release of the
automobile is denied.
counsel proceeds in this case under a notice of limited
appearance. Motion for which he has appeared now has been
fully resolved. Defendant must determine how she wishes to
proceed with her representation, as set forth below.
foregoing reasons, remaining part of defendant's motion
seeking release of the 2018 Toyota Land Cruiser (DE 186) is
DENIED. Within 14 days, defendant is ORDERED to cause
retained counsel to file a general notice of appearance or
request the court to appoint counsel. If defendant seeks the
court to direct the Federal Public Defender to appoint
counsel under the Criminal Justice Act (“CJA”),
defendant must also complete a revised CJA 23 financial
affidavit evidencing inability to retain counsel. The