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United States v. $97

United States District Court, D. Nebraska

July 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
$97, 040.00 IN UNITED STATES CURRENCY, Defendant.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the Court on the United States' motion to strike claim and for partial summary judgment, Filing No. 44, and also on the motion for summary judgment on behalf of claimants and cross claimants Nathan Pecor, Jonathan Perdue, and Robert Tatro, Filing No. 49. The United States filed a complaint for forfeiture in rem, Filing No. 1 and Filing No. 21, pursuant to 21 U.S.C. § 881. Claimants and cross claimants contend that the defendant currency in the amount of $97, 040.00 belongs to them.

         BACKGROUND

         The United States argues the following facts. On or about April 28, 2015, Douglas County Deputy Sheriff Jason Bargstadt, while patrolling Interstate 80 in Omaha, Nebraska, determined that a vehicle being driven by Nathan Pecor and Jonathan Perdue was following a vehicle too closely. Nathan Pecor was the driver. Perdue was the passenger. Both had Massachusetts's driver's licenses. Deputy Bargstadt believed he smelled the odor of marijuana coming from inside the car. He asked Pecor where they were headed. Pecor replied to Las Vegas to gamble. He asked Pecor several times if there were any large sums of money in the vehicle. He responded no on all occasions. Deputy Eric Olson arrived on the scene to assist. The deputies searched the vehicle. They found a user amount of marijuana. They found two backpacks, one contained $52, 000.00 that was bundled and rubber-banded, and the other contained $45, 040 that was bundled and rubber-banded. The total sum was $97, 040.00. Canine Voss later alerted to the two sums in two separate sterile locker rooms.

         The claimants responded to the complaint and asked for a jury trial. Claimants contend this is their money and not the product of purchase or sale of drugs or narcotics. They assert that they intended to use the money to gamble in Las Vegas. Claimants further filed a cross claim against the United States pursuant to 42 U.S.C. § 1983. In their answer to the United States' amended complaint, claimants simply deny each of the allegations in the amended complaint and did not request a jury trial or file a cross claim.

         The claimants contend that Pecor and Perdue were taking the money given to them by Tatro to Las Vegas to gamble and to attend an equipment auction. According to the claimants, Tatro owned $85, 000.00; Pecor owned $4, 000.00; and Perdue owned $7, 000.00. Pecor and Perdue went to Tatro's house and picked up the money prior to making the trip. They each had a bag with part of the money. They were on their way to Las Vegas when they were stopped. Tatro contends that his $85, 000.00 came from selling six vehicles after his business closed. He has some receipts and bank statements that he argues support his argument. Tatro is 56-years old and has been in the trucking business most of his life, including owning his business called Tatro Trucking. Tatro has also for many years gone to auctions to buy and sell vehicles and equipment such as pickup trucks, motorcycles, cars, semis, and heavy equipment. He contends that he has made hundreds of thousands of dollars in his business. In 2015, Tatro began talking with Pecor and Perdue about going on a trip to Las Vegas with him to potentially help Tatro bring back vehicles and equipment from auctions in the Las Vegas area and to have some fun in Las Vegas. Pecor and Perdue were to rent a car, so that they could help drive vehicles back to Massachusetts.

         Perdue was subsequently charged in Douglas County with possession of 1 ounce or less of marijuana and one count of possession of drug paraphernalia. The possession charge against Perdue was dropped and Perdue pled guilty to one count of possession of drug paraphernalia. Pecor was not charged with any crime or violation.

         STANDARD OF REVIEW

         On a motion for summary judgment, the question before the Court is whether the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). “Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995).

         The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Therefore, if defendant does not meet its initial burden with respect to an issue, summary judgment must be denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee's Furniture, Inc. v. Doughboy Recreational Inc., 825 F.2d 167, 174 (8th Cir. 1987).

         Once the defendant meets his initial burden of showing there is no genuine issue of material fact, plaintiff may not rest upon the allegations of his or her pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed. R. Civ. P. 56(e)(2); Chism v. W.R. Grace & Co., 158 F.3d 988, 990 (8th Cir. 1998). The party opposing the motion must do more than simply show that there is some metaphysical doubt as to the material facts; he or she must show there is sufficient evidence to support a jury verdict in his or her favor. Id.“Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Although we view the facts in a light most favorable to the non-moving party, in order to defeat a motion for summary judgment, the non-moving party cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit.” Carter v. St. Louis Univ., 167 F.3d 398, 401 (8th Cir. 1999). “In ruling on a motion for summary judgment a court must not weigh evidence or make credibility determinations.” Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003).

         DISCUSSION

         a. Standing

         The Government contends that the claimants have no statutory or Article III standing to raise their claims. The Court disagrees. The Court finds the ...


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