United States District Court, D. Nebraska
United States of America, Plaintiff: Douglas J. Amen, Nancy
A. Svoboda, U.S. ATTORNEY'S OFFICE - OMAHA, Omaha, NE.
Jonathan A. Shulkin, Claimant: J. William Gallup, GALLUP LAW
FIRM, Omaha, NE.
Smith Camp, Chief United States District Judge.
matter is before the Court on the Findings and Recommendation
(Filing No. 28), issued by Magistrate Judge F.A. Gossett
recommending that the Motion to Compel (Filing No. 10) filed
by the Claimant, Jonathan A. Shulkin (" Claimant"
), be denied. Claimant filed an Objection to the Findings and
Recommendation (Filing No. 29) as allowed by 28 U.S.C. §
636(b)(1)(C). The Government did not respond to the
Defendant's Objection. For the reasons set forth below,
the Findings and Recommendation will be adopted, and the
Motion to Compel will be denied.
does not object to the Magistrate Judge's factual
findings and they are adopted in their entirety. The
following facts are provided and summarized by way of
background. On January 7, 2015, Richard Lutter ("
Lutter" ), an investigator with the Nebraska State
Patrol, together with other law enforcement officers
conducted a review of the passenger manifest of a passenger
train at the Omaha Amtrak railroad station. Based upon their
review, officers had concerns about the Claimant because his
ticket from Iowa to Sacramento, California, was purchased
less than 48 hours prior to departure.
boarded the train and knocked on Claimant's sleeper cabin
door and asked Claimant if he could speak with him. Lutter
then engaged Claimant in conversation about his travel plans
and asked him whether he had any drugs or large amounts of
money, to which Claimant responded, " no." Lutter
then asked for permission to search. Lutter testified at the
hearing on the Motion to Compel that while Claimant gave no
verbal response to his question, Claimant offered the bag to
Lutter and did not object to the search. Lutter found three
bundles in Claimant's backpack which, based upon
Lutter's experience and training, he perceived to be
bundles of currency. Lutter eventually seized $35,140.00 (the
" Defendant Currency" ) found within Claimant's
carry-on backpack and checked luggage. The Government
instituted forfeiture proceedings on the Defendant Currency
on June 1, 2015 (Filing No. 1).
23, 2015, Claimant moved to compel the government to return
the Defendant Currency to Claimant. Claimant argues that the
Court lacks jurisdiction to enforce the forfeiture of the
Defendant Currency because the Government instituted these
forfeiture proceedings after January 16, 2015, the date the
United States Department of Justice instituted a new policy
(the " Policy" ) prohibiting the Government from
causing money to be forfeited if it was seized by local law
enforcement agencies in a manner not necessary to protect
public safety. (Filing No. 10 at 2.) Claimant also argues
that Lutter illegally seized the Defendant Currency because
Lutter lacked any legal justification to support a
Magistrate Judge held a hearing on Claimant's Motion to
Compel on July 21, 2015 (Filing No. 23; see also
Transcript of Hearing (" Tr." ), Filing No. 31.)
The Magistrate Judge concluded that the Policy did not vest
Claimant with any enforceable rights. (Filing No. 28 at 3.)
Further, the Magistrate Judge concluded that Lutter lawfully
conducted a " knock and talk" with Claimant and
obtained Claimant's consent to search his bag. (Filing
No. 28 at 5-6.) Claimant argues the Magistrate Judge erred in
concluding that the forfeiture was not barred by the Policy.
Claimant further argues the Magistrate Judge erred in
concluding that Lutter seized the Defendant Currency through
28 U.S.C. § 636(b)(1)(C), the Court must make a de novo
determination of those portions of the findings and
recommendation to which the Defendants have objected. The
Court may accept, reject, or modify, in whole or in part, the
Magistrate Judge's findings or recommendation.
Id. The Court may also ...