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United States v. $18

United States District Court, W.D. Virginia, Harrisonburg Division

April 8, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
$18, 690.00 IN U.S. CURRENCY, Defendant.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

This matter is before the court on the Government's motion to strike the claim for seized property by Brahim M. Elkory. (Dkt. No. 20). For the reasons set forth below, the court GRANTS the Government's motion.

I. Facts and Procedural History

In this in rem civil forfeiture action, the Government seeks the forfeiture of $18, 690.00 in United States currency. The facts are set out in the affidavit of David T. Liu, a special agent with the Department of Homeland Security, Immigration and Customs Enforcement. (Dkt. No. 1-1). The currency was seized during a traffic stop on August 9, 2012, near mile marker 277 of the southbound lanes of Interstate 81. A Virginia State Trooper pulled over a Dodge Caravan for a suspected violation of Va. Code § 46.2-1078 (operating a vehicle while wearing headphones). The driver of the vehicle, Hacen Ouldelhakem, was in fact wearing headphones. According to the Trooper, he also appeared to be extremely nervous. There was one passenger in the vehicle, Saleck Bakary, who also appeared nervous. Based on paperwork given to him by Ouldelhakem, the Trooper determined that the van was rented, but not in either Ouldelhakem's or Bakary's name. Additionally, Ouldelhakem and Bakary told somewhat conflicting versions of their travel history to the Trooper.

Suspicious, the Trooper asked to search the vehicle and Ouldelhakem consented. During the course of his search of the vehicle, the Trooper discovered eight bundles of U.S. currency wrapped in a black plastic trash bag located under the back of the driver's seat. Both Ouldelhakem and Bakary disavowed ownership or knowledge of the money. A drug dog alerted for the presence of narcotics on the currency and it was taken into custody. Brahim M. Elkory contacted the Government the next day, asserting that the currency belonged to him. He stated that he had received half of it as a loan and the other half was proceeds of his work as a taxi driver. Elkory did not, however, follow up on his claim by providing any additional information.

The Government brought this in rem action on March 14, 2013, asserting that pursuant to 21 U.S.C. § 8810)(6), the currency is subject to forfeiture as property that was used, or was intended to be used, to facilitate a drug trafficking offense in violation of 21 U.S.C. 801 et seq., and/or represents proceeds from a violation thereof. (Dkt. No. 1). Elkory, through counsel, filed an answer and a claim for the seized property on April 19, 2013. In his claim, Elkory simply states that his "interest in the specific property claimed lies solely with the fact that it belong to him." (Claim for Seized Property, Dkt. No. 4, at 1). The Government sent special interrogatories to Elkory on September 5, 2013. Both parties agreed to extend the time to respond to the interrogatories by two weeks. On October 8, 2013, Elkory responded. Elkory provided his full name, stated that he was an American citizen, and noted that he "claims the full $18, 690 seized." He also stated that the currency was not narcotics proceeds and denied having had currency seized from him on other occasions or having criminal history. He provided no further information, objecting to the overwhelming majority of the Government's interrogatories. (See Dkt. No. 20-2).

On January 15, 2014, the Government filed the pending motion. The court heard oral argument on February 20, 2014.

II. Discussion

Claims made for defendant property in an in rem forfeiture actions are governed by the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, specifically Supplemental Rule G(5)(a). Supplemental Rule G(5)(a) states as follows:

(5) Responsive Pleadings.
(a) Filing a Claim.
(i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must:
(A) identify the specific property claimed;
(B) identify the claimant and state the claimant's interest ...

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