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United States v. Contents of Pnc Bank Account No. Xxx6926 In The Name of Mon Amour, Inc.

United States District Court, Sixth Circuit

September 20, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
CONTENTS OF PNC BANK ACCOUNT NO. XXX6926 IN THE NAME OF MON AMOUR, INC., et al., Defendants.

REPORT AND RECOMMENDATION

KAREN L. LITKOVITZ, Magistrate Judge.

This matter is before the Court on the United States of America's motion for summary judgment (Doc. 41), to which defendants have not responded. For the following reasons, the undersigned recommends that the motion be granted.

I. Background

In January 2011, the United States of America (the Government) initiated this forfeiture action alleging that the three named bank accounts were subject to forfeiture because the monies contained therein were fraudulently obtained in violation of federal law. (Doc. 1). Nabih Shteiwi (Mr. Shteiwi) and Mon Amour, Inc. (Mon Amour) filed notices of claims in February 2011 asserting ownership interests in the named accounts.[1](Docs. 7, 8). The Court subsequently granted the Government's motion to strike Mr. Shteiwi's claim for failure to comply with Rule G(8)(c) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. (Doc. 23). On March 13, 2013, this Court recommended that the Government's motion for default judgment against Mr. Shteiwi be granted; no objection was filed and the District Judge adopted this recommendation the following month. (Docs. 30, 38).

The party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253 (1968)). In response to a properly supported summary judgment motion, the non-moving party "is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial." Sixty Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987) (quoting First Nat'I Bank, 391 U.S. at 288-89). Although the non-movant need not cite specific page numbers of the record in support of its claims or defenses, "the designated portions of the record must be presented with enough specificity that the district court can readily identify the facts upon which the non-moving party relies." Guarino, 980 F.2d at 405 (citing Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989)).

The movant bears the burden of demonstrating that no material facts are in dispute. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party's failure to respond to the motion does not lessen the burden on either the moving party or the Court to demonstrate that summary judgment is appropriate. Mongan v. Lykins, No. 1:09-cv-00626, 2010 WL 2900409, at *3 (S.D. Ohio July 21, 2010) (citing Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991)). The District Court in Mongan explained the Court's obligation when evaluating an unopposed motion for summary judgment as follows:

[T]he Court must review carefully those portions of the submitted evidence designated by the moving party. The Court will not, however, sua sponte comb the record from [the non-moving party's] perspective. Instead, the Court may reasonably rely on [the movant's] unrebutted recitation of the evidence, or pertinent portions thereof, in reaching a conclusion that certain evidence and inferences from evidence demonstrate facts which are uncontroverted. If such evidence supports a conclusion that there is no genuine issue of material fact, the

Court should determine that [the movants] have carried their burden.... Id. (internal quotations and citations omitted).

III. Facts

The Supplemental Nutrition Assistance Program (SNAP) is a federally funded program administered by the United States Department of Agriculture. Recipients of SNAP benefits can purchase food from authorized retailers at the face value of the benefit. To participate in the program, retailers must be authorized by the Food and Nutrition Service of each state. Retailers may not exchange SNAP benefits for cash and they may only redeem SNAP benefits in connection with the sale of eligible food items. (Doc. 1, ¶ 8, Verified Complaint).

In Ohio, SNAP benefits are available through the use of magnetic strip cards or Electronic Benefit Transfer (EBT) cards. SNAP beneficiaries receive a unique account number and encrypted personal identification number (PIN) for their Ohio Direction Card. Much like a debit card, the SNAP account is accessed real time by authorized retailers' point-of-sale devices via telephone lines. Beneficiaries must enter their PIN for each transaction. ( Id., ¶ 9).

Authorized retailers are provided with card reading devices for SNAP customers buying eligible items. Every time a customer uses the card to make a purchase at an EBT authorized store, the EBT system automatically debits the beneficiary's account and credits the retailer's store account. ( Id., ¶ 10).

In April 2009, the United States Secret Service (USSS) joined the United States Department of Agriculture (USDA), the Office of Inspector General, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Ohio Department of Public Safety Investigative Unit and the Cincinnati Police Department in an ongoing investigation into the illegal use of food stamp benefits in violation of 7 U.S.C. § 2024(b) and (c). ( Id., ¶ 11). The investigation demonstrated that from August 2008 to July 2010, Mr. Shteiwi and others were involved in the illegal acquisition and redemption of SNAP/EBT cards in exchange for ineligible items, including stolen tobacco products, cash, and firearms. ( Id., ¶ 12).

On approximately March 14, 2006, Nazih Shteiwi, as owner and president of Sutton Pony Keg, completed and submitted an application to the USDA to become an authorized SNAP retailer. Nazih Shteiwi had previously owned and/or managed three SNAP authorized stores in the Cincinnati, Ohio area. Mr. Shteiwi, Nazih ...


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