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Case 2:13-cv-00005-RWS Document 53 Filed 09/20/13 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,


Plaintiff,

v.

ONE 2011 HARLEY DAVIDSON
FLHX 103 MOTORCYCLE, et al.,

Defendants.

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CIVIL ACTION NO.
2:13-CV-5-RWS

ORDER

This case comes before the Court on Claimant Alexander’s Motion to

Dismiss [23]1 and Claimant Alexander’s Motion to Strike [29]. After reviewing

the record, the Court enters the following Order.

Background

This civil forfeiture action arises out of a Federal Bureau of Investigation

(“FBI”) criminal investigation of the Outlaws Motorcycle Club and affiliated

gangs in North Georgia believed to be involved in drug trafficking. (Compl.,

1Claimant Alexander’s Motion is not styled as a motion to dismiss for failure to

state a claim, nor is Federal Rule of Civil Procedure 12(b)(6) or a related legal
standard cited anywhere in the Motion. Given the content of the Motion, and the last
line of the Motion praying for “the Court to dismiss the Complaint because it fails to
state a valid forfeiture claim as to Alexander’s Motorcycle,” (Dkt. [23] at 6) the Court
treats the Motion as a motion to dismiss for failure to state a claim.

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Dkt. [1] ¶ 10.) The Government’s forfeiture Complaint [1] alleges that on July

11, 2012, Claimant Phillip Alexander (“Alexander”) met with an undercover

FBI agent who “asked Alexander about his willingness to participate in a drug

deal, and Alexander willingly volunteered” to provide “police lookout

protection” in exchange for $200. (Id. ¶¶ 59-60.) The next day, Alexander

arrived at a prearranged location on his 1991 Harley Davidson and “then drove

to the final meeting inside the FBI Undercover Employee’s vehicle.” (Id. ¶¶

61-62.) At the final meeting, Alexander provided security and police lookout

protection. (Id. ¶ 66.)

On August 14, 2012, Alexander and other members of the Outlaws

Motorcycle Club were indicted on drug charges. (Id. ¶ 68.) Two days later, the

FBI arrested Alexander and seized his 1991 Harley Davidson XLH883

Motorcycle (“1991 Harley Davidson”) pursuant to a seizure warrant. (Id. ¶ 69,

72.) On January 7, 2013, the Government initiated this forfeiture action under

21 U.S.C. §§ 881(a)(4) and (6) against numerous Harley Davidson Motorcycles

that had been seized as a result of the investigation on the grounds that “they

were used, or were intended to be used, to transport or facilitate the

transportation, sale, receipt, possession, or concealment of a controlled

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substance,” and that “they were furnished or [were] intended to be furnished in

exchange for a controlled substance, that they constitute proceeds traceable to

such an exchange, or that they were used or were intended to be used to

facilitate the sale or exchange of a controlled substance.” (Id. ¶¶ 88-89.) On

March 16, 2013, Alexander asked the Court to dismiss the forfeiture claim

against his 1991 Harley Davidson.

Discussion

I.

Claimant Alexander’s Motion to Dismiss

When considering a Rule 12(b)(6) motion to dismiss, a federal court is to

accept as true “all facts set forth in the plaintiff’s complaint.” Grossman v.

Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). Further, the court

must draw all reasonable inferences in the light most favorable to the plaintiff.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal citations

omitted). However, “[a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do.’” Ashcroft

v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 555). “Nor does a

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Id.

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In addition, there are particular rules governing complaints in forfeiture

actions. Under Rule G(2)(f) of the Supplemental Rules for Certain Admiralty

and Maritime Claims, a complaint for forfeiture must “state sufficiently detailed

facts to support a reasonable belief that the government will be able to meet its

burden of proof at trial.” “To satisfy this specificity requirement, the complaint

‘must allege sufficient facts to provide a reasonable belief that the property is

subject to forfeiture: in particular, that the Government has probable cause to

believe that a substantial connection exists between the property to be forfeited

and the exchange of a controlled substance.’ ” United States v. Two Parcels of

Real Property Located in Russell Cnty., Ala., 92 F.3d 1123, 1126 (11th Cir.

1996) (quoting United States v. $38,000 in U.S. Currency, 816 F.2d 1538, 1548

(11th Cir. 1987)).

“As a general rule, forfeiture is not favored, and statutes providing for

forfeiture are strictly construed.” United States v. One 1977 Cadillac Coupe

DeVille, 644 F.2d 500, 501 (5th Cir. Unit B 1981).2 The relevant forfeiture

statute is 21 U.S.C. § 881(a)(4), which provides that “[a]ll conveyances,

2 The U.S. Court of Appeals for the Eleventh Circuit adopted as binding
precedent all decisions of the U.S. Court of Appeals for the Fifth Circuit prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

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including aircraft, vehicles, or vessels, which are used, or are intended for use,

to transport, or in any manner to facilitate the transportation, sale, receipt,

possession, or concealment of” controlled substances are subject to forfeiture.

Alexander argues that the Government has failed to allege sufficient facts

showing a substantial connection between his 1991 Harley Davidson and an

illegal drug transaction. (Dkt. [23] at 4.) He argues that forfeiture is not

justified because the Government does not allege that he rode the 1991 Harley

Davidson to the final meeting point; he rode first to a location where he met an

undercover FBI agent and then proceeded to the final meeting in the FBI

agent’s vehicle. (Claimant Alexander’s Mot. to Dismiss, Dkt. [23] at 5.) Thus,

according to Alexander, the 1991 Harley Davidson was not used “to transport

or facilitate the transportation . . . of a controlled substance.” (Id.)

The only case Alexander relies on is United States v. One 1971 Chevrolet

Corvette, in which a district court had ordered forfeiture of a vehicle that had

been used for a portion of a trip before the driver switched cars and proceeded

to the site of a drug deal, much like Alexander did in this case. 496 F.2d 210,

211 (5th Cir. 1974). The Fifth Circuit reversed because the vehicle “lacked the

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necessary nexus with the contraband transaction to bring it within the forfeiture

provision.” Id. at 212.

The Government correctly points out, though, that forfeiture in that case

was sought under 49 U.S.C. § 781(a)(3), which made unlawful the use of any

vehicle “to facilitate the transportation, carriage, conveyance, concealment,

receipt, possession, purchase, sale, barter, exchange, or giving away of any

contraband article,” whereas here the Government seeks forfeiture under 21

U.S.C. § 881. The Fifth Circuit discussed the distinction between these statutes

in Cadillac Coupe DeVille, supra. In that case, the Court affirmed forfeiture of

a vehicle under § 881 when the vehicle was used to transport a drug dealer and

an accomplice to the scene of a drug transaction. 644 F.2d at 503. The car

owner, also relying on Chevrolet Corvette, had argued “that the vehicle was not

used to transport the cocaine and thus did not facilitate the transaction.” Id. at

501.

The Fifth Circuit found the distinction unavailing. After noting the

similarities between § 781 and § 881, the Court highlighted two important

differences: “§ 881 applies to controlled substances only, while § 781 applies to

various types of contraband; and § 881 includes the phrase ‘in any manner.’”

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Cadillac Coupe DeVille, 644 F.2d at 502. Thus, the Court reasoned, Congress

intended § 881, which was enacted as part of the Comprehensive Drug Abuse

Prevention and Control Act of 1970, “to have a wider reach than the general

contraband forfeiture under 49 U.S.C. § 781.” Id. As an “essential part of the

law enforcement effort in the area of illegal drugs,” the broader forfeiture

provision for controlled substances furthers the Comprehensive Act’s purpose

“to strengthen law enforcement in the area of drug abuse prevention.” Id.

The Court then gave two reasons why Chevrolet Corvette was not

dispositive of their case: first, the use of the Corvette for only one leg of a trip

“was more remote than here where the Cadillac transported both the dealer and

courier to the actual site of the transaction”; and second, in Chevrolet Corvette

the Government “sought forfeiture under 49 U.S.C. § 781(a)(3) rather than the

broader coverage of § 881.” Cadillac Coupe DeVille, 644 F.2d at 502. Based

on the second reason, the Fifth Circuit distinguished its case from forfeiture

cases brought under § 781 where courts limited forfeiture to vehicles that either

transported contraband or housed the transaction itself. See id. at 502-03.

Because § 881 is broader in scope than § 781 and permits forfeiture “if the

conveyance is used in any manner to facilitate the sale,” the Fifth Circuit

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concluded that “use of the vehicle to transport the dealer to the scene forms a

sufficient nexus between the vehicle and the transaction to validate forfeiture

under 21 U.S.C. § 881.” Id. at 503.

Alexander’s reliance on Chevrolet Corvette is thus misplaced because

that action was brought under § 781. Nevertheless, it is not clear to this Court

whether forfeiture under § 881 extends as far as the Government argues. While

the Court in Cadillac Coupe DeVille held that § 881 extends beyond the

previous forfeiture statute by permitting forfeiture of vehicles used “in any

manner” to facilitate a drug sale, the Fifth Circuit also indicated that there is a

limit to how far it is willing to reach by acknowledging that the use of a vehicle

for part of a trip is more remote than driving a vehicle all the way to the site of

the transaction. See id. at 502. The Court did not specify how remote the use

of a vehicle would have to be to place it outside the reach of § 881, and no

Eleventh Circuit authority since then has addressed forfeiture under § 881 in the

context of the present fact pattern: when the vehicle only transports its occupant

partway to the site of the drug deal.

Indeed, most cases here and in other Circuits have permitted forfeiture

under § 881 primarily in the context of vehicles that transported the dealer to

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the scene of the transaction or negotiation. See, e.g., United States v. One 1979

Porsche Coupe, 709 F.2d 1424, 1427 (11th Cir. 1983) (finding a substantial

connection between a vehicle and a drug transaction when the vehicle was used

to transport “the pivotal figure in the transaction” to and from a hotel where

drug negotiations occurred); United States v. 1990 Toyota 4Runner, 9 F.3d 651,

651-52 (7th Cir. 1993) (finding a substantial connection when a drug dealer

drove his vehicle to a meeting where he arranged the import of heroin from the

Philippines); United States v. One 1984 Cadillac, 888 F.2d 1133, 1138 (6th Cir.

1989) (finding a sufficient nexus when a vehicle transported an individual to the

scene of an attempted drug transaction); United States v. One 1974 Cadillac

Eldorado Sedan, 548 F.2d 421, 427 (2d Cir. 1977) (finding a sufficient nexus

when a vehicle transported an individual to the scene of a meeting, even though

the anticipated sale did not take place, because the sale was consummated a few

days later).

The common thread in each of these cases is that the vehicle was used to

transport the defendant directly to the site of some event integral to a drug

scheme, be it a drug transaction or negotiations leading to a transaction. These

cases are distinguishable from the instant case. Here, Alexander’s use of the

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1991 Harley Davidson is more attenuated from the ultimate drug transaction

because he did not drive it all the way to the scene of the deal.

After carefully considering the facts in the present case, this Court finds

the difference between this case and the above § 881 cases significant. The

Government does not allege that Alexander drove the 1991 Harley Davidson to

the site of the actual drug transaction. Even after accepting all of the

Government’s allegations in its Complaint [1] as true, it appears that the

prearranged meeting place where Alexander joined the undercover FBI agent

was a point of convenience with no bearing on the actual transaction. The first

meeting site did not serve as an integral part of the conspiracy like the meeting

site in Cadillac Coupe DeVille, where the drug transaction occurred. No

negotiations or agreement between Alexander and the FBI agent took place

there, as Alexander had already agreed to provide lookout protection before

arriving at the prearranged location. Consequently, no substantive part of the

drug deal transpired where Alexander met the FBI agent. Given these

circumstances, the Court finds no substantial connection between the 1991

Harley Davidson and any illegal activity because Alexander did not ride the

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motorcycle to the scene of the drug transaction. Therefore, Claimant

Alexander’s Motion to Dismiss [23] is GRANTED.

II.

Claimant Alexander’s Motion to Strike



Claimant Alexander has also filed a Motion to Strike [29] paragraph 81

of the Complaint [1] pursuant to Federal Rule of Civil Procedure 12(f) as

“immaterial, impertinent, or scandalous matter.” Because the Court grants

Claimant Alexander’s Motion to Dismiss [23], Claimant Alexander’s Motion to

Strike [29] is DENIED as moot.

Conclusion

In accordance with the foregoing, Claimant Alexander’s Motion to

Dismiss [23] is GRANTED, and Claimant Alexander’s Motion to Strike [29] is

DENIED as moot.

SO ORDERED, this 20th day of September, 2013.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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