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United States v. $77

United States District Court, M.D. Tennessee, Nashville Division

January 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
$77, 090.00 UNITED STATES CURRENCY, Defendant. TROY TOMPKINS and CHERIE BANKS, Claimants.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE

         The United States has filed a Verified Complaint In Rem against $77, 090 in currency seized at Nashville International Airport in January of 2014. (Doc. No. 1.) Troy Tompkins and Cherie Banks (collectively, “Claimants”) have filed Verified Claims to portions of the funds. (Doc. No. 7; Doc. No. 8.) The United States filed a Motion to Strike Claimants' Claims (Doc. No. 12), a Motion for Default Judgment against all persons other than Claimants (Doc. No. 18), and a Motion for a Protective Order to Stay Government Response to Interrogatories and Request for Documents pending the resolution of its other pending motions (Doc. No. 20). Claimants have filed a Motion to Dismiss for Lack of Prosecution. (Doc. No. 23.) For the reasons discussed herein, the government's Motion to Strike Claimants' Claims is DENIED, its Motion for Default Judgment against all other persons is GRANTED, its Motion for a Protective Order is DENIED, and Claimants' Motion to Dismiss is DENIED. The Court will refer this matter to Magistrate Judge Alistair Newbern for the purpose of overseeing discovery and discovery-related disputes.

         I. BACKGROUND

         The United States relies on the affidavit of Matthew J. Moore, a task force officer (“TFO”) with the United States Drug Enforcement Administration (“DEA”), to allege the facts surrounding the seizure of the funds at issue in this case. (Doc. No. 3.) According to TFO Moore, at approximately 11:00 AM on January 19, 2014, an explosive detection system at the Nashville International Airport alerted Transportation Security Administration (“TSA”) personnel to a piece of luggage that had been checked for transportation to San Francisco, California. (Id. at ¶¶ 15, 22.) A tag identified the luggage as belonging to Claimant Tompkins. (Id. at ¶¶ 15-16.) Inside the luggage, the TSA found a brown mailing envelope and a white box, each of which held a vacuum sealed plastic bag containing currency bundled with plastic bands. (Id. at ¶¶ 17-18.) The envelope was addressed to Tompkins' girlfriend and fellow Claimant Banks at an address in Newberg, Oregon. (Id. at ¶ 19.) The box was addressed to Bradley Mejarg at an address in Junction City, Oregon. (Id. at ¶ 20.) Tompkins allegedly told law enforcement that the packages contained about $70, 000, $50, 000 of which was given to him by his mother and $20, 000 of which represented profit from buying and selling cars and property. (Id. at ¶ 23.) When counted, the currency amounted to $77, 090, mostly in twenty dollar bills. (Id. at ¶ 32.)

         According to TFO Moore, investigators detected an obvious odor of marijuana from some portion of the seized materials, and a trained canine identified the currency as having the odor of narcotics. (Id. at ¶¶ 24-27.) TFO Moore further states that Tompkins' stepfather Ted Lang “advised that . . . Tompkins told him he was a money courier.” (Id. at ¶ 33.) Tompkins was also involved in an earlier forfeiture of funds in December of 2012, when $169, 271 of currency was seized from him during a traffic stop in Kansas involving a car allegedly belonging to Banks. (Id. at ¶¶ 7-12.)

         To explain the source of the funds at issue in this case, Tompkins provided law enforcement with a five-page letter to him from his mother, Angel Tompkins, dated March 11, 2013, discussing a wide range of topics, including their respective dental work, the quality of Ms. Tompkins' recent bus ride, and events of Tompkins' childhood that were emotionally challenging for Ms. Tompkins, Claimant Tompkins, or both. (Doc No. 3-1.) Relevant to this case, Tompkins' mother also describes a gift of $59, 800 dollars from her to Tompkins, made from funds she accumulated by saving $25 per week from mid-1968 through March 2013. The letter says that Tompkins' mother is giving Tompkins the money as “my appreciation for who you have become and chosen to grow up to be.” (Id. at 4.) She discusses the possibility of Tompkins' investing the money in real estate: “I know you want to look at trailer parks or land[.] I would prefer horse property with land to grow special crops like vegetables, salad and herbs, baby squash or [edible] flowers[, ] with great water rights and good open sunny plots.” (Id.) The letter appears to be notarized by a commissioned California notary public. (Id. at 5.)

         On February 26, 2014, each Claimant filed an administrative claim with the DEA related to the funds. Tompkins claimed an ownership and possessory interest in the entirety of the seized funds (Doc. No. 13-6), and Banks claimed an ownership and possessory interest in $10, 000 (Doc. No. 13-7). On June 12, 2014, the United States filed its Complaint. (Doc. No. 1.) On August 1, 2014, Claimants filed separate claims in this Court opposing forfeiture. (Doc. No. 7; Doc. No. 8.) Tompkins' claim revises his earlier assertion of ownership of the full amount, instead asserting a possessory interest over all of the funds but an ownership interest in only $67, 090, with the remainder belonging to Banks. (Doc. No. 7 at 1.) Banks' claim similarly asserts a possessory interest in all of the funds, but asserts ownership of just $10, 000, with the rest belonging to Tompkins. (Doc. No. 8 at 1.)

         The United States served claimants with special interrogatories related to the matter on November 7, 2014. Tompkins received twenty-seven interrogatories, seeking a wide array of information about his assets, sources of income, and associations, as well as the events surrounding the seizure. (Doc. No. 13-5 at 2-20.) A number of the interrogatories demanded that Tompkins both “IDENTIFY and DOCUMENT” the requested information. (E.g., id. at 3, 5, 7.) Banks received twenty-one interrogatories, generally requesting similar information. (Doc. No. 13-4 at 2-16.) Tompkins and Banks individually responded to the interrogatories on or around December 18, 2014. (Id. at 16; Doc No. 13-5 at 22.) While each provided some responsive details, they declined to produce the majority of the information requested, instead raising a number of objections, including the following: (1) the interrogatories improperly sought production of documents, which is not authorized by Rule G(6) (Doc. No. 13-5 at 3); (2) the subject matter of the interrogatories exceeded the scope of Rule G(6)(a) (Id. at 4); (3) some information sought was beyond the scope of permissible discovery because it was not relevant, admissible, or calculated to lead to admissible evidence (Id. at 5); (4) some interrogatories reflected an improper purpose and/or were unduly duplicative (Id. at 7); and (5) some interrogatories were overbroad, burdensome, and oppressive (Id. at 8).

         According to Claimants' counsel, they heard nothing more from the United States about the objections until on or around July 1, 2015, when he contacted counsel for the United States on Claimants' behalf to inquire about the status of their claims. (Doc. No. 24 at 3; Doc. No. 24-1 at 1.) An additional month and a half later, the United States sent Claimants letters, dated August 18, 2015, taking issue with Claimants' interrogatory responses. Each letter alleged that the respective Claimant's response did “not appear to be a good faith answer” to the special interrogatories and warned that the Claimant's allegedly inadequate response “could be the basis for a motion to dismiss after a hearing for lack of standing.” (Doc. No. 13-8 at 1; Doc. No. 13-9 at 1.)

         On November 17, 2015, the United States filed it motion asking the court to strike Claimants' claims due to their lack of constitutional or statutory standing (Doc. No. 12), and on February 24, 2016, it filed its motion for default judgment with regard to all nonclaimants (Doc. No. 18). In the meantime, Claimants served the United States with their own interrogatories, and the United States moved for a protective order staying its response. (Doc. No. 20.) On March 25, 2016, Claimants filed a motion seeking dismissal of the government's case based on its violation of their due process rights arising out of the government's failure to expeditiously bring the matter to trial. (Doc. No. 23.)

         II. MOTION FOR DEFAULT JUDGMENT

         The United States asks the Court to enter a judgment extinguishing all interest, right, liens or title of any persons other than Claimants in the funds at issue pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. The government in particular identifies Angel Tompkins and Bradley Meharg a/k/a Bradley Mejarg as persons to be covered by the judgment. Neither Angel Tompkins, Bradley Meharg, nor any other third party has come forward to challenge the government's motion.

         “A judgment of forfeiture may be entered only if the government has published notice of the action within a reasonable time after filing the complaint or at a time the court orders.” Supp. R. G(4)(a)(i), Fed.R.Civ.P. For property located within the United States, publication should be made either “in a newspaper generally circulated in the district where the action is filed, where the property was seized, or where property that was not seized is located” or “on an official internet government forfeiture site for at least 30 consecutive days.” Supp. R. G(4)(a)(iv)(A), (C), Fed.R.Civ.P. The government is also required to provide direct notice of the complaint “to any person who reasonably appears to be a potential claimant on the facts known to the government.” Supp. R. G(4)(b)(i), Fed.R.Civ.P. Absent good cause to the contrary, a potential claimant who received direct notice must file his claim before the deadline established in the notice provided; if a potential claimant did not receive direct notice but notice was published on a government forfeiture website, he must file his claim no later than sixty days after the first publication. Supp. R. G(5)(a)(ii), Fed. R. Civ. P.

         Bradley Mejarg was sent direct notice of these proceedings on June 27, 2014, and informed that he should file any claim within thirty-five days. (Doc. No. 16 at 2.) Notice of the action was also published to www.forfeiture.gov, where it remained published for at least thirty days beginning on June 18, 2014. (Id. at 3.) Because the time for any party to file a timely claim has long expired, ...


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