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United States v. Ten Thousand Six Hundred Forty-Eight $10

United States District Court, First Circuit

October 8, 2013

United States of America
v.
Ten Thousand Six Hundred Forty-Eight $10, 648.00 dollars in United States Currency, more or less, seized from Karla Schulz No. 2013 DNH 131 P

ORDER

Landya McCafferty United States Magistrate Judge

This is a forfeiture action in rem, brought by the United States of America, under Rule G of the Supplemental Rules for Certain Admiralty and Maritime Claims and Asset Forfeiture Actions. Specifically, the United States seeks the forfeiture of $10, 648 in United States currency that was seized from the residence of Karla Schulz by police officers executing a search warrant. Schulz has filed a claim for the currency. Before the court is the government’s motion for summary judgment. Schulz has neither objected to the government’s motion nor moved for summary judgment. For the reasons that follow, the government’s motion for summary judgment is denied.

Summary Judgment Standard

“Summary judgment is warranted where ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” McGair v. Am. Bankers Ins. Co. of Fla., 693 F.3d 94, 99 (1st Cir. 2012) (quoting Fed. R. Civ. P. 56(a); citing Rosciti v. Ins. Co. of Penn., 659 F.3d 92, 96 (1st Cir. 2011)). “The object of summary judgment is to ‘pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.’” Dávila v. Corporactión de P.R. para la Diffusión Pública, 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep’t Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)). “[T]he court’s task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).

Background

The following facts are undisputed because each of them is either admitted in Schulz’s verified answer, see Fed.R.Civ.P. 56(c)(1)(A), or deemed admitted because it is properly supported in plaintiff’s unopposed motion for summary judgment, see LR 7.2(b)(2).

In May of 2009, Schulz was convicted of possession of heroin with intent to sell. In October of 2010, an officer of the Haverhill Police Department (“HPD”) went to the residence Schulz shared with her son Logan to serve her with a Notice Against Trespass and a Notice Against Harassment. While serving the notices, the officer noticed several firearms.

Two days later, HPD officers returned to Schulz’s home with a warrant to seize the firearms. While executing the warrant, the officers noticed a lockbox that, in their view, was large enough to hold a handgun. When the officers asked Schulz and her son to open the lockbox, they said it could not be opened because it was broken. Schulz told them that the lockbox did not contain a handgun, but did contain cocaine and money. The officers stopped their search and obtained a second search warrant, this one for drugs and drug paraphernalia. As a result of their second search, the officers seized:

One plastic bag containing 1.22 grams of cocaine, one plastic bag containing 6.63 grams of cocaine, one plastic bag containing 21.52 grams of cocaine, one plastic bag containing 27.70 grams of cocaine, all of which were located in a lockbox in Logan Schulz’s bedroom; two digital scales; a multi colored glass pipe; a green pipe; a metal spoon with burnt residue; two white paring knives with residue; a paper clip, metal rod, glass cylinder, glass pipe, empty ziplock baggies, and scissors, all with residue; a box of zip lock bags; $1, 190.00 in U.S. Currency, seized from Karla Schulz’s bedroom; $1, 015.00 in U.S. Currency, seized from Logan Schulz’s bedroom; and $8, 443.00 in U.S. Currency, seized from the lockbox in Logan Schulz’s bedroom.

Am. Verfied Compl. (doc. no. 4) ¶ 5.

Based upon the evidence seized during the second search, Schulz was charged with, and convicted of, violating New Hampshire Revised Statutes Annotated (“RSA”) § 318-B:2 by: (1) possessing cocaine, see Pl.’s Mem. of Law, Ex. A (doc. no. 20-2), at 1, 2; and (2) possessing cocaine with the intent to distribute it, see id., at 5, 6.

The United States filed the instant action against all of the currency seized by HPD officers during the second search of Schulz’s home. Specifically, the government seeks the forfeiture of

[t]he defendant in rem, Ten Thousand Six Hundred Forty-Three ($10, 648.00) [sic] dollars in United States Currency, more or less, seized from Karla Schulz, was furnished or intended to be furnished in exchange for a controlled substance, in violation of the Controlled Substances Act, 21 U.S.C. § 801, et seq., or represents proceeds traceable to such exchanges, or money used or intended to be used to facilitate violations of the Act.

Am. Verified Compl. (doc. no. 4) ΒΆ 9. Neither in its complaint nor in its memorandum of law does the government distinguish between the currency that was found in the lockbox along with bags of cocaine and the ...


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