U.S. v. $7,000.00 IN U.S. CURRENCY Civil Action No. 1:07cv00277.
583 F.Supp.2d 725 (2008)
UNITED STATES of America, Plaintiff, v. $7,000.00 in U.S. CURRENCY and 2003 Nissan 350Z, Vin JN1AZ34E43TOO2843, Defendants.
United States District Court, M.D. North Carolina.
October 30, 2008.
Lynne P. Klauer, Office of U.S. Attorney, Greensboro, NC, for Plaintiff.
Kendal Brumby, McCleansville, NC, pro se.
Joseph Brumby, Greensboro, NC, pro se.
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is a forfeiture action pursuant to 21 U.S.C. §§ 881(a)(4) and 881(a)(6) and 18 U.S.C. § 981(a)(1)(C). Before the court are various motions by Kendal Brumby a/k/a Ken d El Bey ("El Bey") and Joseph Brumby, Jr., a/k/a Yasir Justice El Bey ("Brumby") seeking release of the seized defendant property, and motions by the Government to dismiss or strike their claims. For the reasons set forth below, the court dismisses El Bey's claim as frivolous, strikes Brumby's claims, and otherwise denies their motions.
At approximately 2:06 p.m. on November 20, 2006, Deputy S. Canter of the Guilford County Sheriff's Office stopped a 2003 Nissan 350Z automobile, occupied solely by driver Brumby, for speeding. (Doc. 1 Ex. A ¶ 3.) Upon conducting a computerized check of the driver's license, Deputy Canter learned that Brumby had an outstanding warrant for arrest and placed him under arrest. (Id. ¶¶ 3-4.) Deputy Canter searched the vehicle incident to the arrest and located four bundles of thousands of dollars in U.S. currency inside a leather satchel on the passenger seat. (Id. ¶¶ 4, 6.) Because the currency was bundled in a fashion and in amounts suggestive of illegal drug activity, Deputy Canter had the car searched by a narcotic-detecting canine, "Rico," who positively alerted to the odor of narcotics in the leather satchel which contained the currency and in the passenger side rear seat/speaker area. (Id. ¶ 5.) Officers discovered a non-factory hidden compartment
Brumby told the officers at the scene that the currency was from his rental property business, "Showtime Realty," and that he was on his way to deposit it into his bank account. (Id. ¶ 7.) According to the officers, Brumby said that he had collected the money over a period of time from 100 rental properties that he owned and that he possessed the money for a "long time." (Id. ¶¶ 7-8.) Brumby also said that the currency was given to him by his brother, El Bey, who had withdrawn it from his bank account. (Id. ¶ 8.) El Bey, who was not at the scene, claims that Brumby never said that he had the currency in his possession for a "long time" and charges that the officers made racially motivated comments. (Doc. 9 at 3.) Despite their claims, neither Brumby nor El Bey has offered any evidence whatsoever that any portion of the currency resulted from any legitimate business. On the other hand, the Government has proffered uncontradicted evidence that Brumby owns only one parcel of property in Guilford County and that there is no registered business by the name of "Showtime Realty." (Doc. 1 Ex. A ¶ 11; Doc. 9 at 3; Doc. 36 at 5.)
The Drug Enforcement Administration ("DEA") adopted the seizure of the U.S. currency and the vehicle as illegal drug proceeds and instituted administrative forfeiture proceedings under statute. (Doc. 1 Ex. A ¶¶ 10-11.) Brumby filed claims of entitlement to the seized items and, as a consequence, the administrative forfeiture proceedings were terminated and this matter was referred to the United States Attorney's Office for judicial forfeiture. (Id.)
On April 10, 2007, the Government initiated this action by filing a Verified Complaint of Forfeiture alleging that the currency and vehicle were used or intended to be used in connection with a controlled substance exchange. (Doc. 1 ¶¶ 1-3.)
Beginning August 2, 2007, El Bey filed a series of motions and demands seeking the seized items.
The Government moves to dismiss El Bey's various claims on the ground that he lacks standing to assert them (Doc. 17) and to strike Brumby's claims on the ground that he filed them untimely (Doc. 26). The Government also moves to amend the Complaint to correct the vehicle identification number.
A. El Bey's Claims
To seek return of seized property, a claimant must prove an interest in it
The Government does not contest that El Bey has statutory standing under 18 U.S.C. § 983. (Doc. 17 Ex. A at 5.) The central issue therefore is whether El Bey has demonstrated constitutional standing to contest the seizure. Article III standing exists only if the claimant "has a legally cognizable interest in the property that will be injured if the property is forfeited to the government." $38,000.00 in U.S. Currency, 816 F.2d at 1543 n. 12. A claimant must show some direct injury that is real and immediate, and not conjectural or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). "Courts generally do not deny standing to a claimant who is either the colorable owner of the [property] or who has any colorable possessory interest in it." United States v. Contents of Accounts Nos. 3034504504 and 144-07143, 971 F.2d 974, 985 (3d Cir.1992).
Courts differ on the applicable test to determine whether a claimant has a possessory or ownership interest in the seized property for purposes of establishing standing to contest a civil forfeiture. While some "courts have ... considered an affirmation or statement under oath that one is the owner of seized property sufficient to establish standing," other courts require the claimant to proffer "some evidence of ownership interest." United States v. Funds from Prudential Sec., 300 F.Supp.2d 99, 106-07 (D.D.C. 2004) (listing courts that ascribe to each test). In applying the second test, courts "generally look to dominion and control, such as possession, title, [and] financial stake, as evidence of an ownership interest." Id. at 107 (internal quotation marks and citation omitted).
Though there is no published Fourth Circuit opinion adopting either test for civil forfeitures, the Fourth Circuit would almost assuredly apply the "dominion and control" test, which it has applied in an unpublished civil forfeiture opinion and in the criminal forfeiture context.
Although legal title is an indicium of ownership under the dominion and control test, "[b]are legal title, standing alone, is insufficient to confer standing upon a
The burden of establishing standing rests with the claimant, United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1505 (11th Cir.1993); 328 Pounds, More or Less, of Wild Am. Ginseng, 347 F.Supp.2d at 245-46, and must be supported at each stage of the litigation, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
1. U.S. Currency
El Bey cannot establish constitutional standing to contest the forfeiture of the defendant currency. On August 2, 2007, El Bey filed an "answer" to the complaint of forfeiture, as well as a demand for return of the defendant currency. (Docs.9, 10.) He claims the release of the defendant currency under 18 U.S.C. § 983(f) on the grounds that he has a possessory interest in it by virtue of an international treaty. (Doc. 9 at 1, 4; Doc. 10 at 2.) El Bey subsequently claimed to have a power of attorney from Brumby, who is the apparent owner of the currency. (Doc. 38 at 2, Ex. A.) In an addendum to a motion for summary judgment, sworn under the penalty of perjury, El Bey has attached what purport to be receipts from a Wachovia Bank in Greensboro, North Carolina, reflecting transactions to account for withdrawal of $4,900.
(Doc. 9 at 1.) El Bey further explains that:
(Id. at 3.) Based on these admissions, El Bey relinquished any right he may have had to the currency, thereby giving up any right to dominion or control over it. He therefore lacks standing to seek its return. United States v. One 1971 Porsche Coupe Auto., 364 F.Supp. 745, 748 (E.D.Pa.1973) (holding that father who gave car to son as a gift could not oppose its forfeiture).
El Bey also fails to demonstrate any possessory or ownership interest by virtue of his elaborate filings alleging international treaty rights. In his pleadings, El Bey claims to be a United States citizen and a member of the "International Society of Indigenous Sovereigns Abannaki Aboriginal Nation," which he alleges is "a Native American Nation recognized by the Federal Government [Department of State authentication document 06013144-1]." (Doc. 9 at 1; see id. at 4; Doc. 10 at 2.) In support of this claim, El Bey has filed multiple documents that purport to be official papers of recognition from the "International Indigenous Society of Abannaki Aboriginal Tribal Council," the U.S. Department of State, the Commonwealth of Pennsylvania, and other entities. (Doc. 9 Ex. A; Doc. 20 Ex. A.) He also filed alleged diplomatic identification cards from the Great Seal National Association of Moorish Affairs (Moorish Nation), the International Society of Indigenous Sovereigns ("ISIS"), and the Washitaw. (Id.) As an alleged member of the Abannaki, El Bey claims to be a beneficiary of the Treaty of Watertown of 1776 between the Abannaki Miqmaq Tribe and the United States. (Doc. 9 at 4; Doc. 10 at 2.) Based on this alleged tribal membership and treaty, El Bey argues that the defendant currency was proceeds from his labors as a tribal minister and that he has a "perfected priority possessory interest" in such currency, pursuant to North Carolina's Uniform Commercial Code, N.C. Gen.Stat. §§ 25-9-310(a), 25-9-311 and 25-7-103, and 8 U.S.C. § 1401. (Doc. 9 at 1, 4; Doc. 10 at 2.)
These arguments are so completely and utterly without merit that they are an
Furthermore, El Bey has not shown that he is a member of the Abenaki.
Even if El Bey were a member of the Abenaki, he has not demonstrated his immunity from the civil forfeiture statutes of the United States. Federal statutes of general applicability presumptively apply to individual Indians and Indian tribes, absent some clear indication that Congress did not intend for them to be subject to the legislation. Fed. Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 116, 120, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960); Taylor v. Ala. Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1035 (11th Cir.2001); EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246, 248 (8th Cir.1993). The civil forfeiture statute contains no such express or implied exemption for Indians. Furthermore, the Abenaki are not a federally recognized tribe that is eligible for certain funding and services. 73 Fed.Reg. 18,553, 18,553 (Apr. 4, 2008). In fact, just last year the U.S. Bureau of Indian Affairs rejected an application for federal recognition filed by the St. Francis/Sokoki Band of Abenakis of Vermont. 72 Fed.Reg. 36,022, 36,022 (July 2, 2007).
Finally, El Bey may not rely on Brumby's ownership interest to assert standing to contest the forfeiture of the defendant currency. On February 26, 2008, El Bey filed an "Addendum to Motion for Summary Judgment," claiming that almost six months earlier Brumby had given him a power of attorney over the "[m]onies took from Joseph Brumby Jr. on 11/20/06." (Doc. 38 at 2, Ex. A at 3, 4.) The power of attorney claims to authorize El Bey to engage on Brumby's behalf in tangible personal property transactions, banking transactions, and litigation involving the defendant currency. (Doc. 38 Ex. A at 1-2.) Although Brumby purportedly executed the power of attorney on September 15, 2007 (id. at 4), El Bey mentioned it for the first time in this pleading.
The Addendum, apart from its highly suspicious facial appearance, seems to constitute a transparent attempt either to cure Brumby's late claims or to contradict El Bey's initial claims to the defendant currency in order to cure his lack of standing. Brumby's claim is addressed in Section II.B below. As to the latter, it is reminiscent of the Abbott and Costello "Who's on first?" routine. El Bey has already staked himself out on the position (under penalty of perjury) that at the time of seizure the currency was Brumby's. (Doc. 9.) The power of attorney, even assuming its validity, only allows El-Bey to act as agent for Brumby, the grantor. Black's Law Dictionary 1209 (8th ed.2004) (defining the instrument as only authorizing another to act as one's agent); Pecheles v. Pecheles (In re Pecheles), No. 97-2428, 1998 WL 398821, at *1, 1998 U.S.App. LEXIS 12723, at *2 (4th Cir. June 15, 1998). El Bey cannot now claim to have dominion and control over the currency himself simply by asserting Brumby's rights over it. Thus, El Bey may not rely on the power of attorney to claim his standing to contest the forfeiture of the defendant currency.
Based on this record, the court finds that El Bey has failed to demonstrate constitutional standing over the defendant currency.
El Bey also cannot establish standing for the defendant vehicle. In the initial claim and answer, which were filed on August 2, 2007, El Bey purports to have a possessory interest in the vehicle,
These attempts fail to constitute a sufficient possessory or ownership interest to demonstrate standing under the "dominion and control" test. The "treaty rights" are bogus, as earlier explained. El Bey provides absolutely no evidence regarding his dominion and control for purposes of his alleged possessory interest in the vehicle. His only claim to an ownership interest is the power of attorney from Yarbrough, who holds legal title to the vehicle. As a matter of law, whatever rights El Bey would claim under a power of attorney are necessarily derivative of those of Yarbrough. As discussed above, however, "[b]are legal title, standing alone, is insufficient to confer standing upon a claimant." El Bey has proffered no evidence of any other indicia of Yarbrough's dominion and control over the vehicle. To the contrary, the record indicates that Brumby exhibited several indicia of dominion or control, including possession of the vehicle at the time of its seizure and control over the keys to the vehicle.
Based on this record, the court finds that El Bey has not demonstrated that he has dominion and control over the defendant vehicle. Therefore, El Bey lacks standing to assert any interest in the seized vehicle, and his claim for this property is dismissed.
B. Brumby's Claims
Apparently emboldened by El Bey's multiple filings in this case, Brumby filed his own claims to the seized defendant properties on October 29 and November 26, 2007. (Docs.21, 24.) Like El Bey, Brumby filed these claims under an alias, Yasir Justice El Bey, and requests the return of the defendant currency and vehicle under the same bogus ground of a federal treaty and North Carolina's Uniform Commercial Code, pursuant 18 U.S.C. § 983(f).
Rule G(5)(a) of the Supplemental Rules imposes a deadline on the filing of a claim for seized defendant property.
In this action, Brumby was served with direct notice, a copy of the Verified Complaint of Forfeiture and related documents on July 13, 2007. (Doc. 8.) The Government informed Brumby that he could file a verified claim within thirty-five days after the date of the letter, which was sent on July 2, 2007. (Doc. 27 Ex. A.) Brumby therefore had until August 6, 2007, to file a claim in this forfeiture proceeding.
For the reasons set forth above, it is ORDERED that:
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