United States District Court, D. Nebraska
MEMORANDUM AND ORDER
CHERYL R. ZWART, Magistrate Judge.
The government's complaint seeks civil forfeiture of a 2009 Dodge Challenger, VIN 2B3LJ74W49H582194, seized on December 29, 2013. Claimant Carol Scarborough asserts she is an innocent owner of the Dodge Challenger.
A bench trial was held before the undersigned magistrate judge on September 30, 2015. For the reasons stated below, Carol Scarborough's claims will be denied and the defendant vehicle will be ordered forfeited to the government.
STATEMENT OF FACTS
Having observed and heard the witnesses as they testified, the court finds the credible evidence as follows:
Claimant Carol Scarborough is 71-years-old. She lives alone at a single-family home in Northeast Omaha. The home has a one-stall garage and a covered carport.
Carol Scarborough is the mother of four children and a grandmother of nine, including Adrian Scarborough. Carol Scarborough began employment with the United States Postal Service around 1983. In addition to her income from the U.S. Postal Service, beginning at age 62, she received $1, 500 a month from her ex-husband's Social Security Pension.
In July of 2011, a 2009 Dodge Challenger was purchased, registered and titled in Carol Scarborough's name. She continued to own and use her previously purchased 1998 Infiniti. Scarborough testified that the purchase price for the Challenger was $35, 000: She paid $6, 000 down and used a bank loan to pay the rest.
Carol Scarborough testified that she bought the 2009 Dodge Challenger because she was "getting ready to retire and wanted to buy [herself] something nice." At that time, she had no definite plans to retire and was not certain when she would, but she wanted to be "prepared." Carol Scarborough retired from the U.S. Postal Service in May of 2013, around two years after buying the Challenger. The timing of this retirement was not pre-planned; rather, Claimant injured her shoulder at work and decided to retire early.
After the Challenger was bought, Carol Scarborough insured it under the name and address of Kendra McClain, thereby bundling the insurance on the Challenger with insurance covering McClain's own vehicle. McClain, Adrian Scarborough's long-term girlfriend, lives in West Omaha. Claimant's 1998 Infiniti was not insured under McClain's name or address. Carol Scarborough testified that insuring the Challenger under McClain's address was less expensive than insuring it under Carol Scarborough's address. Although Adrian Scarborough, the claimant's grandson, lived with McClain, Claimant testified she "didn't even think about" bundling the Challenger insurance with Adrian Scarborough's vehicle at the West Omaha address:
Accompanied by her son Donald Scarborough, in November of 2012, Carol Scarborough purchased a new 2013 Hyundai. She sold her 1998 Infiniti. She did not insure the new Hyundai under McClain's name or address. And she did not attempt to bundle the Hyundai and the Challenger on her own insurance policy.
Carol Scarborough testified that for the first two years she owned the Challenger, she kept it either in her one-stall garage or under her carport. She would alternate which vehicle was stored in the garage based upon which she was driving-if she was driving the vehicle, she would park it under the carport. Claimant testified that in the winter months, the Challenger was stored either in her own garage or at McClain's address (where there was a two-stall garage) because the Challenger did not drive well in the winter. Carol Scarborough testified that she allowed her children and grandchildren to drive the Challenger when they wished. But when contacted by the police, she stated primary drivers were herself, McClain, and Adrian Scarborough.
In November of 2013, Carol Scarborough paid the $4, 851.10 remaining balance for the Challenger. Over the 26 months before this final payment, nearly half the loan payments were made in cash, or at least partly in cash, with small denomination bills. See Ex. 101. Claimant testified that in mid-November, the Challenger's back window was damaged while parked under the carport at her Northeast Omaha home. Although intending to have the window fixed, she testified that she parked the vehicle in McClain's garage for the winter, leaving a set of keys with the vehicle.
On the evening of December 28, 2013, officers with the Omaha Police Department received a call regarding a robbery in West Omaha. The mother of the robbery victim followed the perpetrators to McClain's neighborhood and alerted the police. Detective Dan Martin and his partner, Detective Tyler Stricker, were dispatched to investigate. Officer Martin is an 11-year veteran of the OPD, has ...