United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman, United States Magistrate Judge.
March 17, 2017, the United States filed an in rem forfeiture
proceeding against personal property in accordance with
Supplemental Rule G(2) of the Supplemental Rules for
Admiralty or Maritime Claims and Asset Forfeiture Actions
("Supplemental Rules") and the Federal Rules of
Civil Procedure. (Doc. 1). This matter has been referred to
the undersigned for initial review. (Doc. 9).
motions are currently pending before the Court: (1) a motion
to dismiss the complaint filed by Claimant Abdullah
Luqman (hereinafter "Claimant" or
"Luqman"); (2) Claimant's motion for release of
property; and (3) the motion of the United States to strike
Luqman's claim. For the reasons that follow, the
undersigned recommends that all three pending motions be
denied without prejudice to renew. In addition, by separate
order filed herewith, the undersigned directs Claimant Luqman
to supplement his responses to the Special Interrogatories
propounded by the United States, and further directs the
United States to supplement its explanation for declining to
release additional property seized in this case as to which
forfeiture is not being sought.
complaint alleges that on September 21, 2016,  the United States
(hereinafter the "Government") seized pursuant to a
warrant certain items of personal property from 777 Jackson
Street, in Cincinnati, Ohio, including eight counterfeit
watches ("Defendant 1"), and assorted counterfeit
articles of clothing, shoes, and accessories ("Defendant
2"). It appears from the context of the pending motions
that additional property was seized at the same time,
pursuant to the same warrant, that is not the subject of this
civil forfeiture proceeding.
the Government alleges that Defendants 1 and 2 are subject to
forfeiture under 18 U.S.C. § 2323(a)(1), because all of
the listed property either constitutes articles of which the
making or trafficking is prohibited under 18 U.S.C. §
2320, or alternatively, constitutes property that was used or
intended to be used "in any manner or part to commit or
facilitate the commission of an offense referred to in 18
U.S.C. § 2320" (concerning the making or
trafficking of counterfeit articles). (Doc. 1 at ¶ 8).
The Government alleges that more than three years prior to
the execution of the warrant, on July 22, 2013, a
confidential source ("CHS") made a controlled
purchase of several items from Claimant Luqman at the same
address, including watches, jeans, and a counterfeit
"Gucci" belt, for the sum of $240.
motion to dismiss asserts that on July 22, 2013, the CHS
first attempted unsuccessfully to purchase a firearm from
him, prior to engaging in "a story stating that he [had
been] a victim of robbery and was in need of clothing."
(Doc. 4 at 1). Luqman asserts that Claimant "generously
offered to [sell] his personal clothing out of his own
closet, " which is how the CHS "ultimately obtained
the counterfeit articles." (Id.). Luqman does
not dispute that the items listed in the complaint are
counterfeit, but argues that "federal law does not
prohibit an individual from buying counterfeit products for
personal use, even if they do so knowingly."
(Id.) Claimant's motion maintains that the
seized property was "for his personal use" and was
not "made [or]...used for trafficking" in
counterfeited goods, and therefore is not subject to
convenience of the Court, the undersigned first addresses the
Government's motion to strike Luqman's claim before
turning to the Claimant's motions.
The Government's Motion to Strike (Doc. 15)
Civil Asset Forfeiture Reform Act of 2000 (CAFRA) governs
civil forfeiture actions. 18 U.S.C. § 981 et
seq. Under CAFRA, "any person claiming an interest
in the seized property may file a claim...." 18 U.S.C.
§983(a)(4)(A). However, in order to contest a civil
forfeiture, a claimant must have both statutory standing and
Article III standing. United States v. $515, 060.42 in
U.S. Currency, 152 F.3d 491, 497 (6th Cir. 1998). While
statutory standing is satisfied by filing a claim that
complies with the requirements of Rule G(5) of the
Supplemental Rules, in order to establish Article III
standing, the claimant must have "a colorable ownership,
possessory, or security interest in at least a portion of the
property." Id. at 497-498.
Government has moved to strike Luqman's claim in this
case based upon his failure to fully respond to Special
Interrogatories served by the Government pursuant to
Supplemental Rule G(6) of the Federal Rules of Civil
Procedure. The Government asserts that it requires
the Claimant's responses in order to establish his
identity and standing. Luqman has filed no timely response to
the Government's motion.
initial responses to the Special Interrogatories were due on
June 2, 2017, but on June 14, 2017, the Government extended
his deadline to June 23, 2017. In lieu of any substantive
response, Luqman has filed a document captioned "Special
Interrogatory No. 1, " which states:
On all Interrogatory request[s] I would like to exercise my
Miranda Rights. And avoid the circus of these question[s]
which [are] virtually impossible to answer except my name[, ]
addresses[, ] previous address, social security no. and other
information which is public record and the court has access
too! Also in reference to establishing ownership to the
property seized. The majority of the property in question was
brought from street vendors and given as gifts.
(Doc. 12). Despite being provided with a Declaration for
execution, Claimant has failed to make even this limited
response under oath, as required by the Federal Rules of
Civil Procedure. See Rule 33(b)(3), Fed. R. Civ. P.
United States does not dispute that Luqman had physical
possession of the subject property at the time that it was
seized, but notes that case law supports that simple physical
possession is insufficient to establish standing under
Article III, and that the claimant must also allege facts
"regarding how the claimant came to possess the
property, the nature of the claimant's relationship to
the property, and/or the story behind the claimant's
control of the property. See $515, 060.42 in U.S.
Currency, 152 F.3d at 498. Because of the danger of
false claims, even Supplemental Rule G(5)(a)(i) requires more
than a conclusory statement of ownership. See also $25,
982.28 in U.S. Currency, 2015 WL 410590 at *1 (N.D. Ohio
Jan. 29, 2015) (internal citations omitted). Thus, courts
have consistently held that claimants in civil forfeiture
cases must answer interrogatories regarding their interest in
the defendant property where the claimant's ownership
interest in the property forms a central issue in the
proceeding. See $133, 420.00 in U.S. Currency, 672
F.3d 629, 642-43 (9th Cir. 2012).
other hand, courts have found that in some cases, the
Government's own allegations can establish a
claimant's standing. See, e.g., $515, 060.42 in U.S.
Currency, 152 F.3d at 499-500 (collecting cases). In the
instant case, the Government's complaint alleges that all
of the defendant property was seized from Claimant Luqman by
the Federal Bureau of Investigation ("FBI") on
September 21, 2016. The complaint alleges that Luqman
operated a snack business out of the front room of 777
Jackson Street in Cincinnati, Ohio, which appears to be the
Claimant's residence, though that fact is not entirely
clear from the complaint. Unlike a sum of cash in a vehicle,
the subject property consists largely of clothing and similar
personal property items found in what appears to have been
the Claimant's residence. Thus, the allegations of the
Government's complaint and the nature of the property
seized raise some question, in the undersigned's view, as
to the centrality of the information sought and legitimacy of
any challenge to Article III standing that the Government
claims to be exploring through the Special Interrogatories.
there is no question that the Special Interrogatories, a copy
of which are attached to the Government's motion, all
generally relate to the Claimant's identity and to his
relationship to the seized property. Although the Government
does not allege that anyone else lived in the residence or
that it has some other basis for challenging standing,
it's argument that it requires the information to more
fully determine Luqman's standing remains unopposed by
Luqman. The Government has ...