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United States v. $410

December 21, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$410,000.00 IN UNITED STATES CURRENCY, DEFENDANT-IN-REM.



The opinion of the court was delivered by: Donio, Magistrate Judge

OPINION

Presently before the Court are the motions of two claimants, Timothy Wilkes and Henry Shitrit (collectively, "claimants"), for a stay of a civil forfeiture action brought by Plaintiff United States of America (hereinafter "Government"), and the Government's cross-motion to compel the claimants to respond to Rule G(6) Special Interrogatories pursuant to the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. For the reasons that follow, the claimants' motions to stay are denied without prejudice, and the Government's cross-motion is granted.

The present suit arises in the context of a civil forfeiture action brought by the Government pursuant to 18 U.S.C. § 1956 and § 21 U.S.C. 881(a)(6) to forfeit and condemn the use of $410,000.00 in United States Currency (hereinafter the "Property") seized from a vehicle operated by Haim Shamah on August 9, 2006 while Mr. Shamah was traveling on the New Jersey Turnpike.

In its Amended Verified Complaint [Doc. No. 3], the Government alleges that Special Agents from Immigration and Customs Enforcement ("ICE") located in Miami, Florida have been conducting an investigation concerning ongoing money laundering operations being run by Russian and Israeli organized crime members in southern Florida, South Carolina, and New York. Am. Verified Compl., ¶ 7. The Government alleges that certain individuals are involved in selling illegal narcotics (MDMA, otherwise known as "Ecstacy") and importing "fraudulent and counterfeit goods" from China, and that the proceeds of these activities are being laundered in southern Florida, South Carolina and New York. Id.

According to the allegations in the Amended Verified Complaint, on August 9, 2006, Special Agents in Miami, Florida requested that ICE Special Agents in Cherry Hill, New Jersey be on a "look out" for a white GMC Envoy bearing a South Carolina license plate, as investigation revealed that Mr. Shamah was allegedly traveling in that vehicle to the New York/New Jersey metropolitan area with the proceeds from illegal narcotics transactions and the sale of counterfeit goods. Id. at ¶¶ 8, 9. The Government further alleges that on August 9, 2006, a New Jersey State Trooper stopped on the New Jersey Turnpike a white GMC Envoy bearing the South Carolina license plate identified by the Miami ICE Special Agents. Id. at ¶ 10.*fn1 The Government avers that the police officer had cause to search the vehicle, which revealed that the driver was Mr. Shamah, and that he was transporting a cardboard box containing $410,000.00 in United States Currency. Id. at ¶¶ 11, 13. The Government alleges that when questioned, Mr. Shamah told police that "the money located in the cardboard box was given to him at a Synagogue/Jewish School in Myrtle Beach, South Carolina by an individual identified as Tim Wilkes." See Am. Verified Compl., ¶ 17. The Government also alleges that Mr. Shamah stated that the Property belonged to and was to be delivered to Mr. Shamah's "friend" in New York City, an individual identified as "Heby Abe." See id. at ¶¶ 13, 17.

The Government avers that there is probable cause to believe that the Property is involved in a transaction or attempted transaction in violation of the "money laundering statute," 18 U.S.C. § 1956. See Am. Verified Compl., at Count I. The Government also alleges that there is probable cause that the Property "was furnished or was intended to be furnished by any person in exchange for a controlled substance or represents proceeds traceable to such exchange or was used or intended to be used to facilitate any violation of Title II of the Controlled Substance Act, Title 21, United States Code, Section 801, et seq." Id. at Count II.

Three individuals filed claims to the Property under Rule (G)(5) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. Specifically, claimant Wilkes claims an interest in $159,700.00 in United States Currency [Doc. No. 6]. Claimant Shitrit asserts an interest in $186,000.00 in United States Currency [Doc. No. 8]. The third claimant, Jacob Halbersberg, filed a claim for $64,300.00 in United States Currency [Doc. No. 9].*fn2 There is no assertion in the Amended Verified Complaint that the Property belongs to any of the claimants here.

Claimants seek to stay the civil forfeiture proceeding "until such time as the criminal investigation is concluded or until such time claimant is advised he is not a target of the investigation." See Proposed Forms of Order [Docket Nos. 13-4, 16-2]. Claimant Wilkes asserts that the Government "has explicitly identified a pending investigation concerning ongoing money laundering operations run by Russian and Israeli organized Crime members in Southern Florida, South Carolina, and New York," and that claimant Wilkes is the subject of that investigation. See Memorandum of Law in Support of Claimant Wilkes' Motion for a Stay of Proceedings Pending Resolution of the Ongoing Criminal Investigation [Doc. No. 13], at 2. Claimant Shitrit also asserts that his "activities are now part of the investigation" and that "the government will try to link [him] to the Russian and Israeli organized crime members who are allegedly involved in the ongoing drug trafficking and money laundering operations." Memorandum of Law in Support of Claimant Shitrit's Motion for a Stay of Proceedings Pending Resolution of the Ongoing Criminal Investigation [Doc. No. 16], at 6. The Government contends that neither of the claimants is the subject of any related "criminal investigation concerning Russian and Israeli organized crime activities referenced in the forfeiture complaint." See Brief in Opposition to Claimant Shitrit's Motion to Stay the Civil Forfeiture and Cross-Motion for Claimants to Answer Rule G(6) Special Interrogatories ("Government's Br.") [Doc. No. 22], at 4, Brief in Opposition to Claimant Wilkes' Motion to Stay the Civil Forfeiture and Cross-Motion for Claimants to Answer Rule G(6) Special Interrogatories [Doc. No. 20], at 4.

A motion for a stay filed by a claimant is governed by 18 U.S.C. § 981(g)(2), which provides:

Upon the motion of a claimant, the court shall stay the civil forfeiture proceeding with respect to that claimant if the court determines that--

(A) the claimant is the subject of a related criminal investigation or case;

(B) the claimant has standing to assert a claim in the civil forfeiture proceeding; and

(C) continuation of the forfeiture proceeding will burden the right of the claimant against self-incrimination in the related investigation or case.

18 U.S.C. § 981(g)(2). Pursuant to 18 U.S.C. § 981(g)(2), the claimant must satisfy all three elements in order for the stay to be issued. In this case, the Government asserts that the claimants ...


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