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United States v. $10

United States District Court, E.D. Kentucky, Northern Division, Covington

October 22, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
$10, 493 IN UNITED STATES CURRENCY DEFENDANT

          MEMORANDUM OPINION AND ORDER

         I. INTRODUCTION

         This in rem civil forfeiture matter is before the Court on Paintiff's Motion for Summary Judgment (Doc. # 12), seeking to have the claim filed by Claimant Paul Dones stricken, and this action dismissed. The motion is fully briefed (Docs. # 14 and 15) and ripe for review. For the reasons stated herein, the Motion for Summary Judgment is granted, and this action is stricken from the Court's docket.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         This case arises out of a seizure of money that took place at the Cincinnati/Northern Kentucky International Airport (“CVG”) on September 1, 2017. (Doc. # 1 at 1). On that day, Kyle Dones (“Kyle”) was flying from Chicago to San Francisco and connecting through CVG. (Doc. # 1-2 at 2). Kyle had purchased a one-way ticket the day before. Id. The characteristics of the ticket purchase, as well as Kyle's prior criminal history (two arrests for trafficking marijuana and a felony firearm charge) and his destination in a “known source city/state” aroused suspicion. Id.

         As a result, Drug Enforcement Administration (DEA) Task Force Officer (TFO) Richard C. Bernecker, TFO Bill Conrad, and CVG Airport Police Department Detective Ken Coyle went to the departure gate for the flight to San Francisco. Id. at 1-2. Detective Coyle identified Kyle as tickets were scanned. Id. at 2. TFO Bernecker approached Kyle, and Kyle agreed to speak with law enforcement. Id. TFO Bernecker asked Kyle if he was carrying large quantities of money, drugs, or other contraband. Id. at 2-3. Kyle indicated that he was not carrying any such items, but, according to TFO Bernecker's affidavit, looked nervous during the encounter. Id. at 3. When asked about his trip, Kyle informed TFO Bernecker that he was going to San Francisco for work. Id.

         Kyle then gave TFO Bernecker permission to search him and his bags. Id. The search turned up two cell phones, as well as stacks of U.S. currency which lined the walls of Kyle's suitcase. Id. When asked by TFO Bernecker how much money Kyle had and why Kyle denied having a large quantity of currency, Kyle responded that he was carrying $9000 to buy a car in San Francisco. Id. TFO Bernecker reminded Kyle he stated earlier that he was going to San Francisco for work, and Kyle then replied he was going to purchase a 2005 Mercedes Benz but had no proof of purchase. Id.

         When asked about where the money came from, Kyle stated he was a professional musician, but Kyle provided no proof of such employment. Id. Kyle also told TFO Bernecker that he had not paid taxes that year, and the money was a loan from his grandmother. Id. at 3-4. Kyle refused to provide TFO Bernecker with his grandmother's phone number to confirm his story. Id. at 4.

         TFO Bernecker then asked Kyle for permission to search his cell phone. Id. Kyle would not give such permission, and TFO Bernecker claims Kyle “attempted to erase something from his cell phone” before it was seized. Id. Kyle denied ever being arrested for something connected to narcotics, and then refused to answer further questions and requested his lawyer. Id.

         Following Kyle's conversation with TFO Bernecker, TFO Bernecker informed Kyle that the currency would be seized “based on probable cause that it was proceeds of drug-related activities.” Id. The currency totaled $10, 493.00. Id.

         On October 5, 2017, Kyle filed a Seized Asset Claim form with the DEA. (Docs. # 12 at 1 and 15-2). This claim, however, was found to be deficient. (Doc. # 12 at 1). On November 9, 2017, Paul and Renee Dones, Kyle's parents, filed the same claim form seeking return of the money through the DEA's administrative forfeiture proceedings and claiming that the seized money was a loan they provided Kyle to purchase a car. (Docs. # 8-1, 12 at 1 and 15-1).

         On February 2, 2018, the United States filed this in rem action in federal court pursuant to 21 U.S.C. § 881(a)(6) claiming the asset was proceeds of drug trafficking. (Docs. # 1 and 1-3). An in rem warrant was sought and issued on the same day for the proceeds. (Docs. # 2 and 5). On March 12, Paul Dones (“Claimant Dones” or “Claimant”) filed a Verified Claim in federal court claiming that the seized money was not “proceeds of any drug transactions, ” but instead was a loan to Kyle from his parents “for the purpose of purchasing a custom automobile while in California.” (Doc. # 8-1 at 1). Claimant also filed an Answer to the United States' Verified Complaint claiming the money was “obtained legally, and its intended use was for a lawful purpose” and that the Verified Complaint was insufficient to show an illegal purpose. (Doc. # 10 at 1).

         On May 2, 2018 the United States filed a Motion for Summary Judgment arguing Claimant does not have standing to claim the money he allegedly loaned to Kyle. (Doc. # 12). Claimant filed a Response on May 16, 2018 asserting the Court could find he had standing, and the United States replied on May 30, 2018. (Docs. # 14 and 15). The Motion is ripe for the Court's review.

         III. ANALYSIS

         A. ...


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