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United States v. Dortch

United States District Court, W.D. Tennessee, Western Division

April 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RICKY DORTCH, Defendant.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE

         Before the Court is the Magistrate Judge's Report and Recommendation (the “Report”), dated December 20, 2017. (ECF No. 225.) The Report recommends denying Defendant Ricky Dortch's motion for the release of pretrial assets (the “Motion for Traceability Hearing”), filed on October 16, 2017. (ECF Nos. 169, 174.) Dortch filed an objection to the Report on January 3, 2018. (ECF No. 227.) The government responded on January 24, 2018. (ECF No. 235.)

         For the following reasons, the Report is MODIFIED in part and ADOPTED AS MODIFIED. Dortch's Motion for Traceability Hearing is DENIED.

         I. Background

         Dortch and eleven co-defendants are charged with conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. (Second Superseding Indictment, ECF No. 308.) The indictment also alleges criminal forfeiture of all property defendants acquired from the conspiracy, pursuant to 21 U.S.C. § 853(a)(1)-(2) and (p). (Id. at 770-71.)

         The government obtained a seizure warrant from United States Magistrate Judge Diane K. Vescovo on August 29, 2017. (ECF No. 190-1 at 331.) The warrant authorized seizure of up to $39, 825.00 from a Bank of America account in the name of Ricky A. Dortch DBA Floor Maintenance and Janitorial Service. (Id.) In the application and affidavit for seizure warrant (the “Affidavit”), the government represented that Dortch had withdrawn $39, 825.00 over a twelve-month period, and that those funds had been used to buy cocaine. (Id. ¶¶ 32-33.) The government froze Dortch's account on August 24, 2017. (Id. at 35.) The account contained approximately $41, 000. (Id.)

         The government seized $39, 692.74 from Dortch's account on August 30, 2017. (ECF No. 190.1 at 332.)

         On October 30, 2017, the government filed a bill of particulars, which described the funds seized from Dortch's account as “property constituting or derived from proceeds [the defendants] obtained, directly or indirectly, as a result of the conspiracy [or] used to facilitate that violation.” (ECF No. 191 at 339.)

         On October 16, 2017, Dortch moved for a traceability hearing to determine whether there is probable cause to believe that his Bank of America account funds are traceable to the criminal conduct alleged in the indictment. (Mot. for Traceability Hr'g, ECF No. 169-1.) Dortch contends that the funds are untainted and that their seizure is interfering with his right to retain counsel of his choosing. (Id.) In an affidavit, Dortch represents that his retained attorney, Linda Garner, has been working for him for free because the government has seized all of the funds he could use to pay her. (ECF No. 218-1.) Dortch also provides copies of his 1099s and W-2s for the past 16 years, a description of his income and expenses, and a selection of deposit slips from the frozen account. (ECF Nos. 219-1 to 219-19.)

         United States Magistrate Judge Tu M. Pham held a hearing on Dortch's Motion for Traceability Hearing on December 8, 2017. (Min. Entry, ECF No. 215.)

         The Magistrate Judge filed the Report on December 20, 2017. (ECF No. 225.) The Report concludes that Dortch must make a two-prong showing to be entitled to a traceability hearing. (Id. at 468.) It concludes that Dortch satisfies the first prong, but fails to satisfy the second. (Id. at 469.) The Report recommends denying Dortch's Motion for Traceability Hearing. (Id. at 470.)

         On January 3, 2018, Dortch filed his objection to the Report. (ECF No. 227.) He objects to the Report's application of the two-prong test, conclusion that Dortch did not satisfy the second prong, and failure to release a portion of Dortch's funds. (Id.)

         II. Legal Standard

         A. Report ...


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