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United States of America v. $225

August 22, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$225,894 IN U.S. CURRENCY,
DEFENDANT IN REM.



The opinion of the court was delivered by: William J. Martini, U.S.D.J.:

OPINION HON. WILLIAM J. MARTINI

This matter comes before the Court on the Government's motion to strike Sabak Fajngold's claim to $217,702.00 of the $225,894.00 in U.S. Currency that is the subject of this civil forfeiture action. For the reasons set forth in this Opinion, the Court will GRANT the Government's motion and STRIKE Mr. Fajngold's claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts in this matter are fairly straightforward. For purposes of this Opinion, it is sufficient to note that on May 16, 2008 and May 30, 2008, the Government seized a total of $225,894.00 in United States currency (the "Seized Funds") from three bank accounts held in the name of Roman Fajngold*fn1 ("Roman") based on its belief that certain deposits made to those accounts between June 25, 2007, and April 17, 2008, were structured in violation of 31 U.S.C. § 5324, and thus subject to civil forfeiture pursuant to 31 U.S.C. § 5317(c)(2).

On August 25, 2008, Claimant Sabak Fajngold, Roman's brother, filed a claim challenging the validity of the forfeiture. Specifically, Claimant asserts that because he is the sole legal and bona fide owner of $217,702.00 of the Seized Funds (hereinafter, the "Claimed Funds"), he is entitled to that money. (Verified Claim, ECF No. 4.) Claimant's September 5, 2008 Answer echoes that assertion. (ECF No. 5.)

In response to Claimant's filings, and pursuant to Rule G(6)(a) of the Supplemental Rules*fn2 of the Federal Rules of Civil Procedure, the Government served special interrogatories upon Claimant on September 25, 2008. In his October 12, 2008 sworn responses to those interrogatories, Claimant stated that he would withdraw cash from his bank accounts in Israel and give it to Roman to save for him until he moved to the United States. (Claimant's Resp. to Interrog. ¶¶ 8, 11, Decl. of Jordan M. Anger, Ex. E, ECF No. 6-4.) He also stated that Roman was allowed to use those funds for any purpose as long as they were ultimately returned to Claimant. (Id. at ¶ 10.)

Thereafter, at his March 23, 2011 deposition, Claimant elaborated on his sworn interrogatory responses. In that deposition, he explained how he initially acquired the Claimed Funds. He further explained that he gave the Claimed Funds to his brother in cash increments to hold for him. (Sabak Fajngold Dep. Mar. 23, 2011, Anger Decl. at Ex. F.) However, Claimant did not provide any details on the exact dates and exact amounts given to Roman. In fact, the portions of Claimant's deposition testimony and interrogatory responses in which he explains why he has an ownership interest in the Seized Funds can properly be characterized as vague, incomplete, and confusing. Moreover, based on his testimony, it is clear that even if Claimant gave his brother an amount of cash equivalent to the Claimed Funds, he cannot be certain that the any portion of the Seized Funds was derived from the money he entrusted to his brother because Claimant exercised no control over that money once he turned it over. That conclusion is evidenced by the following exchange:

"Q. . . . Since that first time you gave your Roman the $100,000, have you ever given him any more money to hold for you?

A. First of all, I didn't give it to him. I told him to keep it for me and then -- and afterwards, whenever I was able to, I would give him money in order to reach an amount sufficient for a house.

Q. Okay. When you said you gave it to him to keep it for you, did you give him any instructions on what to do with the money?

A. No.

Q. Did you tell him there was anything he could not do with the money?

A. What could I have told him? No.

Q. Do you know what he did with ...


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