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United States v. $17

United States District Court, D. Oregon

September 30, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
$17, 980.00 IN UNITED STATES CURRENCY, in rem, Defendant.

S. AMANDA MARSHALL United States Attorney, District of Oregon ANNEMARIE SGARLATA Assistant United States Attorney, Portland, Oregon, Attorneys for Plaintiff.

BRIAN L. MICHAELS, Eugene, Oregon, Attorney for Claimant Donna Dickson.

OPINION AND ORDER

MALCOLM F. MARSH, District Judge.

This civil forfeiture proceeding comes before the Court on Plaintiff's Motion for Summary Judgment or to Strike Claim (#31) and Claimant Donna Dickson's Amended Motion for Leave to File Amended Claim (#36). For the reasons set forth below, the Court denies Claimant's Motion to Amend and grants Plaintiff's Motion for Summary Judgment or to Strike Claim.

FACTUAL BACKGROUND

The material facts are undisputed and taken from the parties' submissions on summary judgment, the Declaration of Mark Cromwell (#2) submitted along with Plaintiff's Complaint, and the Declaration of Claim (#6) filed by Claimant Donna Dickson.

On January 27, 2012, Officer Rob Havice of the Medford Police Department and a narcotics-detection canine were inspecting packages being offloaded from an airplane and sorted for delivery via FedEx. The narcotics-detection canine alerted to a package addressed to Claimant. Based on the alert of the narcoticsdetection canine, Officer Havice seized the box and obtained a warrant to search the package.

Before opening the package, Detective Cromwell noted that it was addressed to Claimant at an address on Jaynes Drive in Grants Pass, Oregon. Detective Cromwell noted the shipper's address was listed as "G & CO. with an address in Astoria, New York. The phone number associated with the sender's address was the same as that listed for the recipient. In addition, Det. Cromwell noticed the exterior of the box was heavily taped with all of the edges and seams covered by multiple layers of packing tape. When Officer Havice opened the box, the officers found a second box with the seams and edges heavily taped in a similar fashion. Upon opening the second box, the officers located the Defendant Currency sealed inside several layers of vacuum-sealed plastic. The officers found a dish soap-like substance with a heavy fragrance between the layers of vacuum-sealed plastic.

After Plaintiff instituted this forfeiture proceeding on August 13, 2012, Claimant submitted a Declaration of Claim on September 24, 2012, asserting a possessory interest in the Defendant Currency. When asked in her deposition to explain her possessory interest in the Defendant Currency, Claimant responded "[i)t's my money." Claimant's Dep. at 26. Claimant invoked her Fifth Amendment privilege against self-incrimination when asked to explain "how it is [her] money, " why she believes it is her money, the circumstances surrounding her possessory interest in the currency, and under what circumstances she acquired an ownership interest in her currency. Claimant Dep. at 26, 34. Claimant also invoked her Fifth Amendment rights to avoid answering questions on a wide variety of subjects, including whether she was expecting the parcel, whether she was familiar with the listed sender or the sender's address, whether the Defendant Currency was ever in her possession, whether anybody had asked her to receive a parcel on their behalf in the past ten years, and whether she had any documentation showing that the Defendant Currency belonged to her. Claimant Dep. at 10-13, 26, 28, 34, 37, 41, 47. In sum, aside from testifying the Defendant Currency was her money, Claimant refused to answer any questions about her relationship to the Defendant Currency.

In her responses to Plaintiff's First Request for Production Claimant asserted that she had no personal or business income tax returns or wage or earnings statements for the last five years. Claimant's Resp. to Pl.'s First Request for Prod. at 3. Claimant invoked, among other objections, her Fifth Amendment privilege to avoid responding to various requests concerning financial documents, business records, and additional tax forms. Claimant's Resp. to Pl.'s First Request for Prod. at 4-9.

On June 10, 2014, after the parties litigated a Motion to Dismiss and completed discovery, Claimant moved to suppress all evidence obtained from the package and Plaintiff moved to strike the claim and, in the alternative, for summary judgment on the grounds that Claimant lacked standing. On July 14, 2014, along with her Response (#35) to Plaintiff's Motion to Strike or for Summary Judgment, Claimant filed a Motion for Leave to File Amended Claim (#36) seeking to allege an ownership interest in the Defendant Currency instead of her previously pled possessory interest. On August 4, 2014, Plaintiff submitted its Reply Memorandum and a response opposing Claimant's Motion for Leave to File Amended Claim. The Court took Plaintiff's Motion for Summary Judgment or to Strike Claim and Claimant's Motion for Leave to File Amended Claim under advisement, withholding consideration of Claimant's Motion to Suppress Evidence until after resolution of the current Motions, if necessary.

DISCUSSION

I. Claimant's Motion for Leave to File Amended Claim

When a party moves to amend a pleading outside the period for amendment as a matter of course, "[t)he court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a) (2); United States v. $11, 500.00 in U.S. Currency, 710 F.3d 1006, 1013 (9th Cir. 2013). Factors relevant to whether amendment shall be permitted are undue delay in filing the motion to amend and delay or extension of the proceedings, prejudice to the non-moving party, bad faith on the part of the moving party, and futility of the proposed amendment. See $11, 500.000 in U.S. Currency, 710 F.3d at 1009; AmerisourceBergen Corp. v. Dialysist West, Inc. , 465 F.3d 946, 953 (9th Cir. 2006); Lockheed Martin Corp. v. Network Solutions, Inc. , 194 F.3d 980, 986 (9th Cir. 1999); Acri v. Int'l Ass'n of Machinists & Aerospace Workers , 781 F.2d 1393, 1398 (9th Cir. 1986). ...


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