CNEST Oregon Solutions, LLC v. United States

96 F. Supp. 3d 726, 2015 U.S. Dist. LEXIS 31981, 2015 WL 1518035
CourtDistrict Court, S.D. Ohio
DecidedMarch 16, 2015
DocketCase No. 1:14-cv-768
StatusPublished

This text of 96 F. Supp. 3d 726 (CNEST Oregon Solutions, LLC v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CNEST Oregon Solutions, LLC v. United States, 96 F. Supp. 3d 726, 2015 U.S. Dist. LEXIS 31981, 2015 WL 1518035 (S.D. Ohio 2015).

Opinion

ORDER

SANDRA S. BECKWITH, Senior District Judge.

Before the Court is Defendants’ motion to dismiss Plaintiffs’ complaint. (Doc. 12) On September 30, 2014, Plaintiffs filed their complaint and petition, pursuant to 18 U.S.C. § 983(e) and Fed. R.Crim. Proc. 41(g), seeking the release of a vehicle that was seized and forfeited to the United States. (Doc. 1) Defendants contend that this Court lacks subject matter jurisdiction to review the merits of the administrative forfeiture of an automobile seized by the [728]*728United States on September 17, 2013. Plaintiffs oppose the motion (Doc. 14), and Defendants filed a reply. (Doc. 16) For the following reasons, the Court will grant Defendants’ motion.

FACTUAL BACKGROUND

According to the complaint, CNEST is an automobile exporter that has been in business since 2011. CNEST purchases luxury automobiles in the United States, and exports them to foreign jurisdictions. CNEST, acting through Jiyu Song (an individual who resides in China), purchased a 2014 Range Rover Sport vehicle from a .Cincinnati auto dealer in September 2013. CNEST wired the purchase funds to Song, who paid for the car and took possession of it with the intent of transferring title to CNEST. However, on September 17, 2013, Secret Service agents seized the car from Song in Mason, Ohio. CNEST and Song submitted various requests to the Secret Service to return the vehicle, which were all denied. Plaintiffs allege that the vehicle was lawfully acquired and fully paid for, and there is no evidence of any illegality in the underlying transaction. CNEST asserts that it is an innocent owner of the vehicle, which was seized without a warrant and without probable cause. Neither CNEST nor Song has been identified as a target of a criminal investigation, and no criminal charges have been filed against either of them. Despite their attempts to reclaim the vehicle and their “substantial compliance” with applicable rules, the United States has not commenced a judicial forfeiture action or adjudicated their claims of constitutional violations and lack of notice of the forfeiture.

The complaint includes five claims for relief. In Count One, Song alleges he did not receive notice of the seizure, that his signature on documents on September 17, 2013 were obtained under duress and without benefit of counsel, and that he is therefore entitled to a return of the vehicle. Counts Two and Three allege violations of Plaintiffs’ Fifth Amendment right to just compensation, and to adequate due process of law. Count Four alleges that the Secret Service seized the vehicle in violation of the Fourth Amendment. Count Five seeks a declaratory judgment that Song received inadequate notice, and that both Plaintiffs were not afforded adequate due process. They seek an order requiring the United States to allow them to make a claim for the vehicle, or ordering the vehicle to be returned to them.

Defendants’ motion is supported by the declarations of John Clark, Special Agent in Charge of the Secret Service Asset Forfeiture Branch, and of SA Jeffrey Schmitz, one of the agents involved in the events of September 17, 2013. Attached to the declarations are the documents described,in Plaintiffs’ complaint, and upon which their claims arise, and the Court may consider them in ruling on Defendants’ motion.

SA Clark attests that the agency’s files and records concerning the vehicle seizure include a report that on September 12, 2013, the Cincinnati field office received a tip from the Cincinnati Land Rover dealer regarding a possible fraudulent vehicle purchase by “a straw purchaser for an auto exporter.” (Doc. 12-1, ¶ 6(a)). On September 17, 2013, Special Agent Schmitz, SA Morgan Morgan and other agents went to the dealership to await the arrival of the suspected straw purchaser. He arrived and was identified as Jiyu “Frank” Song. The agents observed him purchase the Range Rover, and they followed him to his residence in Mason, Ohio. When they arrived, Agents Schmitz, Morgan and Kevin Dye approached Song and advised him of his Miranda rights. Song agreed to waive those rights, and waived his right to have a lawyer present while the agents questioned him. Song signed a written waiver acknowledging these rights. [729]*729(Doc. 12-2, Schmitz Decl., Attachment 1) The agents told Song that he was not under arrest and that he could stop the interview at any time. Schmitz states that Song is a graduate of Miami University with a degree in accounting. Song spoke English very well, and did not indicate to the agents that he had any problem with language, or that he did not understand what was happening.

Song gave the agents a verbal and a written statement about his activities with and on behalf of CNEST. His hand-written statement states that he works for a company that

... ships cars to China. Today I just got a Range Rover Sports HSE. I purchase cars, then they call a truck driver to pick up a car. I did this several times. They send me check or wire me the money. I made about couple hundred dollars to couple thousand dollars according to different cars.

Song described several prior purchases, and stated that he asked some of his Mends to buy cars for the same company. He also stated: “They [CNEST] told me to hide the truth that we are shipping the ears because the dealers won’t sell us the cars if we tell them we’re shippers. I know Chinese market does not want to car to be in the market [sic] and the dealership gets fined if the cars they are selling are shipped.” (Schmitz Decl., Attachment 2) When the agents finished questioning Song, he voluntarily released the vehicle to the agents, and signed an “Agreement to Surrender Property.” (Doc. 12-1, Clark Decl., Attachment A) The agreement is signed by Song and witnessed by Agents Dye and Schmitz, and states that Song is the registered owner of the vehicle. It also states:

I admit that the items/vehicles listed below were purchased unlawfully and are proceed of; violations of 18 U.S.C. §§ 1343 and 1956. I hereby voluntarily relinquish ownership of this property/vehicle to the United States Government, Secretary of Homeland Security to dispose of in accordance with law. I waive my rights to receive service of process and/or any other form of notice of abandonment proceedings or civil/administrative forfeiture actions initiated by the United States against the property/vehicle listed below. I further agree not to file a claim or otherwise contest any forfeiture or abandonment proceedings initiated by the United States against the property listed below.
I agree to release and hold harmless the United States, the Department of Homeland Security, the U.S. Secret Service, it’s officers, employees and Agents, from any and all claims or causes of actions, of whatever kind, that might now exist or hereafter exist by reason of or growing out of, directly or indirectly, the seizure or surrender of the described property. I have not been coerced or threatened in any way, nor do I expect to gain reward or special consideration for completing this document.

(Clark Decl., Attachment A)

Plaintiffs’ complaint alleges “upon information and belief, [that] Song’s signature to the Agreement was neither knowing or voluntary, and was obtained in duress.

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Bluebook (online)
96 F. Supp. 3d 726, 2015 U.S. Dist. LEXIS 31981, 2015 WL 1518035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cnest-oregon-solutions-llc-v-united-states-ohsd-2015.