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United States v. $48

United States District Court, D. Nebraska

October 10, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
$48, 100.00 IN UNITED STATES CURRENCY, Defendant.

MEMORANDUM AND ORDER

CHERYL R. ZWART, Magistrate Judge.

Claimant John R. Nelson filed a Motion for Taxation of Costs, Attorney Fees and Interest, (Filing No. 77). For the reasons set forth below, the motion will be granted in part and denied in part.

BACKGROUND

The Defendant currency in this case was seized from Claimant John R. Nelson by law enforcement officials following a traffic stop on October 19, 2009. The United States initiated civil forfeiture proceedings alleging the currency was used to facilitate the transportation, sale, receipt, possession, concealment, or distribution of a controlled substance. (Filing No. 1). Claimant Nelson filed a claim asserting ownership of the Defendant currency. (Filing No. 10).

The matter was tried before the undersigned Magistrate on August 20, 2012. The court denied Nelson's claim and ordered the forfeiture of the property. (Filing No. 62). Claimant Nelson filed an appeal with the Eighth Circuit Court of Appeals. (Filing No. 67). The decision of this court was reversed and remanded back to the District Court with instructions to dismiss the forfeiture action. (Filing No. 72). The undersigned entered an Order and Judgment dismissing the action and ordered that the Defendant currency be returned to Claimant Nelson. (Filing No. 76)

Nelson filed the motion now before the court seeking payment of costs, reasonable attorney fees and expenses, and interest. The United States has not responded and the deadline for doing so has now passed. See NECivR 7.1(b)(1)(B).

ANALYSIS

Under 28 U.S.C. 2465(b)(1) a claimant who "substantially prevails" in a forfeiture proceeding is entitled to:

(A) reasonable attorney fees and other litigation costs reasonably incurred by the claimant;
(B) post-judgment interest, as set forth in section 1961 of this title; and
(C) in cases involving currency, other negotiable instruments, or the proceeds of an interlocutory sale -
(i) interest actually paid to the United States from the date of seizure or arrest of the property that resulted from the investment of the property in an interest-bearing account or instrument; and
(ii) an imputed amount of interest that such currency, instruments, or proceeds would have earned at the rate applicable to the 30-day Treasury Bill, for any period during which no interest was paid (not including any period when the property reasonably was in use as evidence in an official proceeding or in conducting scientific tests for the purpose of collecting evidence), commencing 15 days after the property was seized by a Federal law enforcement agency, or was turned over to a Federal law enforcement agency by a State or local law enforcement agency.

In this case, Nelson asserts he is entitled to attorney's fees and expenses, costs, and interest because he not only "substantially prevailed" - he was wholly successful on the merits of the case. The United States has not argued to the contrary and the court ...


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