UNITED STATES OF AMERICA Plaintiff.
SUSAN VENTURA and MIGUEL VENTURA Defendants.
OPINION & ORDER
KARL S. FORESTER, Senior District Judge.
This matter is currently before the Court upon the motion of the defendants, Susan Ventura and Miguel Ventura, pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure and the Supreme Court's decision in Blackledge v. Perry, 417 U.S. 21 (1974), for an order dismissing the indictment in this case. This motion is fully briefed and is ripe for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
The defendants, Susan and Miguel Ventura (the "Venturas"), own and operate Miguel's Pizza and Rock Climbing Shop ("Miguel's") in Slade, Kentucky. Miguel's provides campground services and sells pizza and rock climbing equipment and apparel. In 2010, law enforcement initiated an investigation into the Ventura banking activity based on information suggesting possible structuring activity into a business account maintained by the Venturas at Central Bank and Trust Company ("Central Bank").
On April 11, 2011, United States Magistrate Judge Wier authorized the seizure of up to $148, 070.57 from Miguel's account at Central Bank in Winchester, Kentucky. Upon execution of the warrant, $41, 185.42 was seized. On the same day, agents from the Internal Revenue Service went to the Venturas' business and home. The Venturas consented to a search of their home, which revealed a plastic bucket containing $259, 714.00 in cash. After consulting with an attorney, they consented to seizure of the cash.
On January 17, 2013, a federal grand jury returned a one count indictment against Susan Ventura, charging her as follows:
On or about March 13, 2009, continuing through September 22, 2010, in Clark County, in the Eastern District of Kentucky, SUSAN VENTURA did knowingly and for the purposes of evading the reporting requirements of 31 U.S.C. § 5313(a) and the regulations promulgated thereunder, structure and assist in structuring currency transactions, specifically currency deposits totaling $350, 385.57 into Central Bank and Trust Company, a domestic financial institution, account ****7536, all in violation of 31 U.S.C. § 5324(a)(3).
The indictment also contained a forfeiture allegation, seeking forfeiture of "all property, real or personal, involved in the offense and any property traceable to such property." Specifically, "the property to be forfeited includes, but is not limited to, the following:
FUNDS SEIZED FROM CENTRAL BANK & TRUST:
$41, 185.42 seized from account number XXXXXXXX
$309, 200.15 representing amount structured minus funds seized from Central Bank.
The indictment further provides that if the property described, due to any act or omission by Ventura:
a. cannot be located upon the exercise of due diligence;
b. has been transferred or sold to, or deposited with, ...