United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PAUL R. CHERRY, Magistrate Judge.
This matter is before the Court on a Motion to Dismiss Verified Complaint in Rem [DE 7], filed by Claimant Manuel De Jesus Velasquez on October 27, 2014. Plaintiff the United States of America filed an opposition brief on November 10, 2014. Velasquez has not filed a reply, and the time to do so has passed.
The Government filed a Verified Complaint in Rem for forfeiture of $20, 000.00 pursuant to 21 U.S.C. § 881, making the following factual allegations:
1. On May 29, 2014, a police officer was stationed in the median on I-65 observing north bound traffic, when the officer observed a red vehicle in the left lane about to pass a semi-tractor in the right lane. Approximately ½ mile away from the officer, the red vehicle quickly slowed and pulled behind the semi-tractor trailer. As the red vehicle passed the officer, he observed it traveling at a speed of 65 mph approximately one car length behind the semi-tractor trailer. The officer pulled out and behind the red vehicle and observed it cross the fog lane. As a result of the two infractions, the officer pulled over the vehicle.
2. The red vehicle was occupied by two individuals, the driver, Velasquez, and a passenger. The vehicle was registered to a third-person. Velasquez appeared extremely nervous and his hands were shaking. The officer had Velasquez sit in the police vehicle while he conducted a license check.
3. While in the police vehicle, the officer asked Velasquez where he was coming from and Velasquez stated he was looking for a house and then stuttered and changed it to looking for a car. The officer asked Velasquez where he looked at cars and for what type of cars. Velasquez was vague indicating only that they had come from Cicero, Illinois, and driven to Indianapolis, Indiana, where they drove around the streets looking for cars.
4. The officer then went back to the red vehicle to identify the passenger. The passenger stated that he and Velasquez went to Indianapolis to look for a location for a new restaurant, but that they did not stop anywhere, but just drove around. The officer then went back to his vehicle and asked Velasquez if they were looking for a restaurant location and Velasquez said no.
5. The officer asked Velasquez for consent to search the vehicle which was given. The passenger was then seated in the police car with Velasquez while the officer searched. The police vehicle's audio-video recorder was on and Velasquez is heard telling the passenger what he should say regarding the purpose of the trip. The passenger told Velasquez that he told the officer the wrong story.
6. During the search of the vehicle, the officer found a laptop bag containing the defendant property ($20, 000.00 in U.S. Currency). The currency was folded into $1, 000.00 stacks and each stack was combined with four other stacks. A drug detecting canine was summoned and the dog reacted positively to the presence of controlled substances in the vehicle and to the laptop bag containing the currency.
Under 21 U.S.C. § 881(a)(6), currencies or negotiable instruments are subject to forfeiture if they are furnished or intended to be furnished in exchange for a controlled substance, used or intended to be used to facilitate a prohibited narcotics transaction, or are proceeds traceable to an exchange of controlled substances. The Government must prove, by a preponderance of the evidence, that the property is subject to forfeiture. See 18 U.S.C. § 983(c)(1). If the Government's theory is that the seized property was used to commit or facilitate the commission of a crime, it must establish that there was a substantial connection between the property and the offense. See 18 U.S.C. § 983(c)(3).
In the instant motion, Claimant Velasquez seeks dismissal of the Verified Complaint in Rem for failure of the Government to allege a nexus between the $20, 000.00 and alleged violations of 21 U.S.C. § 841. Although Velasquez does not cite any rule in support of his Motion to Dismiss and although Velasquez has not filed a separate brief as required by Northern District of Indiana Local Rule 7-1(b), the motion is governed by Rule G(8)(b) of the Supplemental Rules for Certain Admiralty and Maritime Claims and Federal Rule of Civil Procedure 12(b)(6):
(b) Motion To Dismiss the Action.
(i) A claimant who establishes standing to contest forfeiture may move to dismiss the ...