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United States v. Dream

United States District Court, Sixth Circuit

October 24, 2013

WOODLAND DREAM, et al., Defendants.


JOSEPH M. HOOD, Senior District Judge.

This matter is before the Court upon Claimants Richard Banks and Travis Banks' Motion to Appeal the Order of the Magistrate Judge to sell the mare Woodland Dream. [D.E. 13]. The United States filed a Response to the motion. [D.E. 14]. This matter having been heard for argument on October 18, 2013, and the Court being otherwise sufficiently advised, this matter is now ripe for review.

I. Procedural Background

This matter arose in a preliminary forfeiture action before Magistrate Judge Wier. See United States v. Johnston, 5:13-mj-5181-REW. Magistrate Judge Wier granted Plaintiff's motion for a pre-indictment temporary restraining order. [D.E. 12 at 1]. Plaintiff then moved for a ninety-day extension of the temporary restraining order. Id. Magistrate Judge Wier construed this motion as a motion to convert the temporary restraining order into an injunction under 21 U.S.C. § 853(e)(1), and granted Plaintiff's motion. [D.E. 12 at 2].

Magistrate Judge Wier then scheduled an evidentiary hearing, which took place over two days, to allow the parties to present evidence on the issue of whether the mare Woodland Dream should be sold. [D.E. 12 at 2, 19, 20]. After considering the evidence presented at the hearing, Judge Wier issued an order recommending that Woodland Dream be sold based on the risks to her value and the specialized costs of upkeep attributable to this mare. [D.E. 12]. Specifically, Judge Wier stated:

there is a substantial risk that Woodland Dream's value will diminish significantly if she is not sold at this time, thereby rendering her current value, effectively unavailable for forfeiture. Pregnancy, foaling risks, and age threaten the mare's worth. Accruing and unpaid expenses dilute any owner's equity in the mare. The horse plainly is perishable and in danger of diminished value. A sale now preserves her current value against the indeterminacy of future risks and the assured equity loss from upkeep of this worrisome mare. There is good cause to sell the mare, premised on the nature of the asset, her peculiar history and properties, and timely access to a location sure to offer the most efficient and knowledgeable of marketplaces for property of this type, Keeneland.

[D.E. 12 at 17]. Judge Wier further directed that any appeal of his decision should be made to this Court, based upon the pendency of a related civil forfeiture in rem action before this Court. Id. at 18.

The Banks' then filed their motion appealing Judge Wier's order to sale the mare Woodland Dream. Because the United States is requesting injunctive relief under 21 U.S.C. § 853(e)(1), the Court entered an order treating Judge Wier's order as a report and recommendation and the Banks' motion as an objection to the report and recommendation. See 28 U.S.C. § 636(b)(1); [D.E. 5]. Additionally, because Woodland Dream is also subject to forfeiture in the forfeiture in rem action before this Court, the Court also ordered that all future filings be made in that action. [D.E. 5]. Thus, the Banks' Motion for Reconsideration was submitted to this Court and the Government filed its Response. The Court held a hearing on the motion on October 18, 2013 in Lexington, Kentucky.

In their Motion to Reconsider, the Banks make four objections to Judge Wier's report and recommendation. The Banks' argue (1) that there is no legal precedent for a pre-indictment interlocutory sale of an asset subject to forfeiture; (2) that the Government did not show a substantial likelihood that the property would decrease in value or that the cost of maintenance of the property exceeded its value; (3) that Magistrate Judge Wier improperly relied on the filing of a civil forfeiture in rem action; and (4) that Magistrate Judge Wier's reliance on the testimony of FBI Agent Moutz's testimony given at the evidentiary hearing was inappropriate.

II. Standard of Review

Pursuant to this Court's Order of September 26, 2013, this matter is before the Court upon the Banks' motion for reconsideration of Magistrate Judge Wier's report and recommendation to order the sale of the mare Woodland Dream. See [D.E. 5]; 28 U.S.C. § 636(b)(1). In reviewing Magistrate Judge Wier's recommendation to sale Woodland Dream, this Court must make a de novo review of those portions of the report to which the Banks object. See 28 U.S.C. § 636(b)(1)(C). This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by" Magistrate Judge Wier. Id.

In performing a de novo review, because the Government's motion was made pursuant to § 853(e), the Court must apply the standards found in § 853(e) to determine if action is warranted in this matter.

Upon application of the United States, the court may... take any other action to preserve the availability of property [subject to] forfeiture under this section... prior to the filing of such an indictment or information, if... the court determines that (i) there is a substantial probability that the United States will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and (ii) the need to preserve the ...

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