|Forfeiture of Ford Tow Truck
|Federal Forfeiture Attorney in Tampa Florida
has been following a case prosecuted by The United States Attorney for the Middle District of Florida, where the Tampa Division just lost a Motion for Summary Judgement in a case involving an Innocent Owner
claim to a Tow Truck. The Court ruled “To prevail on a third-party claim under 21 U.S.C. § 853(n)(6)(A), a petitioner must show that she had a legal interest in the property and the interest vested in the claimant instead of the defendant. See 21 U.S.C. § 853(n)(6)(A). However, “[a] third-party claimant … must have more than bare legal title to the forfeited property.” United States v. Hovind, No. 3:06cr83/MCR, 2009 WL 2369340, at *4 (N.D. Fla. July 29, 2009).”
“In the Eleventh Circuit, possession of bare legal title without the right to exercise dominion and control over the property is insufficient to prove ownership. See A Single Family Residence Located at 900 Rio Vista Blvd., 803 F.2d 625, 630 (11th Cir. 1986).”
The Federal Court in the Middle District of Florida recently “reviewed all evidence, factual inferences, and reasonable doubts about the facts in a light most favorable to the respective non-moving party. The core issue in this case is simply whether The vehicle’s owner voluntarily surrendered the Tow Truck to the Defendant, and, therefore, transferred her ownership interest in the Tow Truck”.
“The court reviewed surrounding the circumstances of when the [name omitted] discovered the Tow Truck was stolen, and when she reported to the police and the insurance company that the Tow Truck was stolen. Specifically, the United States highlights that the owners’s “original” version of events simply defies plausibility in light of all of the other independent evidence.”
However, the United States asserts that since the owner has become educated in the Government’s position in this case by review of the United States’ original Summary Judgement Motion (Dkt. No. 155), the owner has drastically changed her statements in this case in an effort to create a genuine issue of fact.
“Based upon review of the record, the United States’ argument is not without merit, but nonetheless the Court finds that, given the nature of this matter, it is more appropriate to resolve this dispute upon the conclusion of an evidentiary hearing rather than upon a summary judgment motion.”
Accordingly, for the reasons set forth above, it is ORDERED that:
1. the United States of America’s Renewed Motion for Summary Judgment (Dkt. No. 167), and Motion for Summary Judgment (Dkt. No. 177); Motion to Strike “Exhibit D” (Dkt. No. 174); Motion to Strike “Exhibit F” (Dkt. No. 175); and Motion to Strike “Exhibit G” (Dkt. No. 176) are DENIED, and
2. the evidentiary hearing in this case shall go forward as scheduled for January 10, 2011, at 9:30 a.m., in Courtroom 10A, United States Courthouse, 801 N. Florida Avenue, Tampa, Florida.
Are you an innocent owner in a Forfeiture Case, an Innocent Owner of property the Feds want to Seize? Call Me Toll Free at 1-877-793-9290.
Source: Federal Forfeiture Innocent Third Party Owner Middle District Florida Case 8:09-cr-00110-JDW-AEP Document 199 Filed 01/07/11(Names Omitted)
The Statute Provides:
18 USCS § 983 (d) Innocent owner defense.
(1) An innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.
(2) (A) With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term “innocent owner” means an owner who–
(i) did not know of the conduct giving rise to forfeiture; or
(ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.
(B) (i) For the purposes of this paragraph, ways in which a person may show that such person did all that reasonably could be expected may include demonstrating that such person, to the extent permitted by law–
(I) gave timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and
(II) in a timely fashion revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.
(ii) A person is not required by this subparagraph to take steps that the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical danger.
(3) (A) With respect to a property interest acquired after the conduct giving rise to the forfeiture has taken place, the term “innocent owner” means a person who, at the time that person acquired the interest in the property–
(i) was a bona fide purchaser or seller for value (including a purchaser or seller of goods or services for value); and
(ii) did not know and was reasonably without cause to believe that the property was subject to forfeiture.
(B) An otherwise valid claim under subparagraph (A) shall not be denied on the ground that the claimant gave nothing of value in exchange for the property if–
(i) the property is the primary residence of the claimant;
(ii) depriving the claimant of the property would deprive the claimant of the means to maintain reasonable shelter in the community for the claimant and all dependents residing with the claimant;
(iii) the property is not, and is not traceable to, the proceeds of any criminal offense; and
(iv) the claimant acquired his or her interest in the property through marriage, divorce, or legal separation, or the claimant was the spouse or legal dependent of a person whose death resulted in the transfer of the property to the claimant through inheritance or probate, except that the court shall limit the value of any real property interest for which innocent ownership is recognized under this subparagraph to the value necessary to maintain reasonable shelter in the community for such claimant and all dependents residing with the claimant.
(4) Notwithstanding any provision of this subsection, no person may assert an ownership interest under this subsection in contraband or other property that it is illegal to possess.
(5) If the court determines, in accordance with this section, that an innocent owner has a partial interest in property otherwise subject to forfeiture, or a joint tenancy or tenancy by the entirety in such property, the court may enter an appropriate order–
(A) severing the property;
(B) transferring the property to the Government with a provision that the Government compensate the innocent owner to the extent of his or her ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets; or
(C) permitting the innocent owner to retain the property subject to a lien in favor of the Government to the extent of the forfeitable interest in the property.
(6) In this subsection, the term “owner”–
(A) means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest; and
(B) does not include–
(i) a person with only a general unsecured interest in, or claim against, the property or estate of another;
(ii) a bailee unless the bailor is identified and the bailee shows a colorable legitimate interest in the property seized; or
(iii) a nominee who exercises no dominion or control over the property.
The Florida Statute Provides:
932.701Short title; definitions.—
(1)Sections 932.701-932.706 shall be known and may be cited as the “Florida Contraband Forfeiture Act.”
(2)As used in the Florida Contraband Forfeiture Act:
(a)“Contraband article” means:
1.Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange that was used, was attempted to be used, or was intended to be used in violation of any provision of chapter 893, if the totality of the facts presented by the state is clearly sufficient to meet the state’s burden of establishing probable cause to believe that a nexus exists between the article seized and the narcotics activity, whether or not the use of the contraband article can be traced to a specific narcotics transaction.
2.Any gambling paraphernalia, lottery tickets, money, currency, or other means of exchange which was used, was attempted, or intended to be used in violation of the gambling laws of the state.
3.Any equipment, liquid or solid, which was being used, is being used, was attempted to be used, or intended to be used in violation of the beverage or tobacco laws of the state.
4.Any motor fuel upon which the motor fuel tax has not been paid as required by law.
5.Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.
6.Any real property, including any right, title, leasehold, or other interest in the whole of any lot or tract of land, which was used, is being used, or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.
7.Any personal property, including, but not limited to, equipment, money, securities, books, records, research, negotiable instruments, currency, or any vessel, aircraft, item, object, tool, substance, device, weapon, machine, or vehicle of any kind in the possession of or belonging to any person who takes aquaculture products in violation of s. 812.014(2)(c).
8.Any motor vehicle offered for sale in violation of s. 320.28.
9.Any motor vehicle used during the course of committing an offense in violation of s. 322.34(9)(a).
10.Any photograph, film, or other recorded image, including an image recorded on videotape, a compact disc, digital tape, or fixed disk, that is recorded in violation of s. 810.145 and is possessed for the purpose of amusement, entertainment, sexual arousal, gratification, or profit, or for the purpose of degrading or abusing another person.
11.Any real property, including any right, title, leasehold, or other interest in the whole of any lot or tract of land, which is acquired by proceeds obtained as a result of Medicaid fraud under s. 409.920 or s. 409.9201; any personal property, including, but not limited to, equipment, money, securities, books, records, research, negotiable instruments, or currency; or any vessel, aircraft, item, object, tool, substance, device, weapon, machine, or vehicle of any kind in the possession of or belonging to any person which is acquired by proceeds obtained as a result of Medicaid fraud under s. 409.920 or s. 409.9201.
(b)“Bona fide lienholder” means the holder of a lien perfected pursuant to applicable law.
(c)“Promptly proceed” means to file the complaint within 45 days after seizure.
(d)“Complaint” is a petition for forfeiture filed in the civil division of the circuit court by the seizing agency requesting the court to issue a judgment of forfeiture.
(e)“Person entitled to notice” means any owner, entity, bona fide lienholder, or person in possession of the property subject to forfeiture when seized, who is known to the seizing agency after a diligent search and inquiry.
(f)“Adversarial preliminary hearing” means a hearing in which the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Florida Contraband Forfeiture Act.
(g)“Forfeiture proceeding” means a hearing or trial in which the court or jury determines whether the subject property shall be forfeited.
(h)“Claimant” means any party who has proprietary interest in property subject to forfeiture and has standing to challenge such forfeiture, including owners, registered owners, bona fide lienholders, and titleholders.
Forfeiture – Innocent Owner Defense