United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Claimant Romie Salem's
Motion to Dismiss for Failure to State a Claim (Motion to
Dismiss), filed March 6, 2017. (Doc. 11). Mr. Salem requests
that the Court dismiss the United States' claim against
his property, asserting he is an innocent bystander whose
property the United States wrongfully seized. Mr. Salem
further asserts that his property is now subject to
forfeiture simply because it was stored in the same facility
where other property subject to forfeiture was stored and
that his property, therefore, is implicated in a criminal
investigation not related to his property. The United States
responded on March 20, 2017, and argues the Court should deny
the Motion to Dismiss because the Verified Complaint for
Forfeiture In Rem (Complaint) (Doc. 1) states a
claim for relief. (Doc. 20). On April 26, 2017, Mr. Salem
filed his reply. (Doc. 27).
February 1, 2018, the Court held a hearing on the Motion to
Dismiss. (Doc. 49). The Court took the matter under
advisement but allowed Mr. Salem leave to file a supplemental
brief and the United States leave to file a supplemental
reply, which they did. (Docs. 50 and 51). Having considered
the original and supplemental briefs, the arguments of
counsel, as well as the applicable law, the Court denies Mr.
Salem's Motion to Dismiss.
in the Complaint
United States brings this civil action to forfeit and condemn
property, alleging violations of
U.S.C. § 542 (“Entry of goods by means of false
statements”), and forfeiture pursuant to 18 U.S.C.
U.S.C. § 545 (“Smuggling goods in the United
States”), and forfeiture pursuant to 18 U.S.C. §
U.S.C. § 1304 (“Marking of imported articles and
containers”), and forfeiture pursuant to 19 U.S.C.
§ 1595a(c)(2)(E); and
U.S.C. § 1956 (“Laundering of monetary
instruments”) and § 1957 (“Engaging in
monetary transactions in property derived from specified
unlawful activity”), and forfeiture pursuant to 18
U.S.C. § 981(a)(1)(A).
in rem include (a) 99, 337 Pieces of Counterfeit
Native American Jewelry; (b) 72, 620 Pieces of Counterfeit
Native American Jewelry; (c) 21, 249 Pieces of Counterfeit
Native American Jewelry; and (d) $288, 738.94 in Funds from
Bank of America Account No.-3826 (collectively, Defendant
allegations stem from an investigation by the United States
Fish and Wildlife Service and the Indian Arts and Crafts
Board into the sale of alleged counterfeit Native American
jewelry and violations of the Indian Arts and Crafts Act
(IACA) by Sterling Islands, Inc. (Sterling), located at 5815
Menaul Boulevard, NE, Albuquerque, New Mexico. The Complaint
alleges Sterling and other associated businesses worked in
concert both inside and outside the District of New Mexico to
design, manufacture, import, and fraudulently sell
counterfeit Native American Jewelry in violation of the IACA.
result of this long-term investigation, on October 28, 2015,
federal search warrants were obtained and executed on
Sterling's business located at 5815 Menaul Boulevard NE,
Albuquerque, New Mexico, where agents seized 53 boxes of
alleged counterfeit Native American jewelry, including 99,
337 pieces of jewelry. In addition, agents seized $288,
738.94. Agents also executed search warrants at Al Zuni
Global Jewelry, located at 1603 West Highway 66, Gallup, New
Mexico, where they seized 72, 620 pieces of alleged
counterfeit Native American jewelry and at 1924 Count Fleet
Street SE, Albuquerque, New Mexico, where agents seized 21,
249 pieces of alleged counterfeit Native American jewelry.
Salem argues the Complaint fails to state a claim against his
property because (1) it does not include his name or that of
his company, “Turquoise Network;” (2) there are
no allegations against him of any wrongdoing; and (3) there
is no justification for the seizure of his property. (Doc.
11) at 4. Mr. Salem also argues there is “absolutely no
way for [him] to know or reasonably expect that he or his
property were involved at all.” Id.
G of the Supplemental Rules for Admiralty or Maritime Claims
and Asset Forfeiture Actions
parties agree the correct standard to apply in this in
rem action is Supplemental Rule G(2). This Rule requires
that a complaint, inter alia, “state
sufficiently detailed facts to support a reasonable belief
that the government will be able to meet its burden of proof
at trial.” Fed.R.Civ.P. Supp. R. G(2)(f). “It is
sufficient for the Government to simply plead enough facts
for the claimant to understand the theory of forfeiture, to
file a responsive pleading, and to undertake an adequate
investigation.” United States v. $506, 069.09
Seized From First Merit Bank, 664 Fed.Appx. 422, 434
(6th Cir. 2016), cert. denied sub nom. Akhtar-Zaidi v.
United States, 137 S.Ct. 2249 (2017) (citation omitted).
Also, a complaint need only “contain either direct or
inferential allegations respecting all material elements to
sustain a recovery under some viable legal ...