United States Of America v. Funds Seized from Fidelity Investments, et al.,, No. 3:2016cv00020 - Document 115 (S.D. Ga. 2021)
Court Description: ORDER granting 88 Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of the United States of America and against claimant Lisa Bird whereby each of the Defendant Assets listed in this case caption are forfeited to the United States of America. Signed by Judge Dudley H. Bowen on 2/9/2021. (pts)
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United States Of America v. Funds Seized from Fidelity Investments, et al., Doc. 115 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION r- u.s.n r ; !"G I :0URT -.i /. UNITED STATES OF AMERICA, k k Plaintiff, 2021 FEB -q p I: (b k J. k Li. V . FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN XXXX7422; FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN XXXX8340; i w I. u ; * * 'k -k FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN XXXX7449; -k k k FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN XXXX6909; * CV 316-020 k k k FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN XXXX4334; k FUNDS SEIZED FROM BANK OF EASTMAN ACCOUNT ENDING IN XX7548; k k k FUNDS SEIZED FROM STATE BANK AND TRUST COMPANY ACCOUNT ENDING IN XXXX7036; k k k k FUNDS SEIZED FROM UNITED FIRST FEDERAL CREDIT UNION ACCOUNT ENDING IN XX7265; k k k k FUNDS SEIZED FROM T. ROWE PRICE ACCOUNT ENDING IN XXXX3286; k k k Dockets.Justia.com FUNDS SEIZED FROM ATHENS FIRST BANK AND TRUST ACCOUNT ENDING IN XXXX4344; ~k -k -k FUNDS SEIZED FROM EMORY CAPITAL MANAGEMENT ACCOUNT ENDING IN XX2400; * * k k FUNDS SEIZED FROM EMORY CAPITAL MANAGEMENT ACCOUNT ENDING IN XX2401; ~k k k * REAL PROPERTY LOCATED AT 821 PLAZA AVENUE, EASTMAN, GEORGIA; k k REAL PROPERTY LOCATED AT 3037 k HIGHWAY 257, k DUBLIN, GEORGIA; k REAL PROPERTY LOCATED AT 2772 CLAXTON DAIRY ROAD, DUBLIN, GEORGIA; * * k k k REAL PROPERTY CONSISTING OF 62.3 ACRES IN DODGE COUNTY, GEORGIA; * * k k REAL PROPERTY CONSISTING OF 56.47 ACRES IN DODGE COUNTY, GEORGIA; * k * Defendants. ORDER In this civil forfeiture action. Plaintiff United States of America (the w Government") \\ Defendant Assets rr seeks pursuant to 21 U.S.C. § 981(a)(1)(A). to forfeit the captioned U.S.C. § 881(a) (6) and/or 18 (7\m. Compl., Doc. No. 8.) Claimant Lisa Bird answered and filed a verified claim in response to the 7\mended 2 alleging Complaint, Assets. that she (Doc. Nos. 30 & 31.) has an interest in the Defendant Before the Court is the Government's {Doc. No. 88.) motion for summary judgment. The Clerk gave the nonmoving party, Claimant Lisa Bird, notice of the summary judgment motion and the summary or other affidavits judgment materials rules. in the right to file and of the opposition, (Doc. No. 89. ) consequences of default. of Therefore, the notice requirements of Griffith v. Wainwriqht, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied. Upon relevant consideration parts of the of the court parties' record (to respective include briefs, the the underlying criminal proceeding), and the applicable law, the Court grants the Government's motion for summary judgment for the following reasons. I. On June 3, 2015, BACKGROUND George Mack Bird III, a former medical doctor, was arrested in Dodge County, Georgia, by state authorities in conjunction with a joint investigation with the United States Drug Enforcement Administration into the illegal distribution of prescription medication. (See generally Presentence Investigation Report ("PSI") in United States v. Bird, Crim. Case No. 3:18-CR005 (S.D. warrants Ga. of Mar. Bird's 18, 2018).) medical Upon offices, 3 the execution apartment, of search house, and (Id. igi vehicles, $971,788 in United States Currency was seized. Further investigation and interviews revealed that 10, 13-14.) the modus operand! of Bird's illegal drug operation leaving pre-signed prescriptions for patients in Dublin clinic's \\ ff drug a drawer in his 1000-count where room. included bottles (Id. i controlled substances and other medications were stored. 16. ) of Clinic employees completed the pre-signed prescriptions with patients' names and passed the drugs out to the regular basis without examinations by Bird. (Id. patients on a 12, 16. ) In fact. Bird's full participation in any legitimate aspect of his medical practice tapered off in 2010, and after 2014, Bird rarely (Id. 51 18 . ) saw patients. During an early Bird interview. admitted that he earned approximately $500,000 to $600,000 per year from 2000 to 2007, and he earned approximately $400,000 to $500,000 per year since 2007. (Id. f 11.) Bird estimated that each of his offices generated between $2,000 and $3,000 in cash per day when the office was open and receiving patients. (Id. ) Ultimately, investigating agents conservatively estimate that between August 2000 and June 3, 2015, Bird grossed in excess of $13 million through the illegal operation of his two medical offices. (Id. 51 21.) On April 7, 2016, the Government filed the Verified Complaint for Forfeiture In Rem in this case against various investment and bank accounts and real property as 4 proceeds of and/or property involved in Bird's illegal drug (Doc. operation. No. 1.) A Verified Amended Complaint for Forfeiture In Rem was filed oil April 18, 2016, at which time the case was stayed pending the resolution (Doc. Nos. 7 & of the parallel criminal proceeding against Bird. On March 8, 2018, a two-count Information was filed in the Southern District of Georgia against Bird.^ (United violation of 21 U.S.C. § 846 (Conspiracy v. Count One charged Bird, Crim. Case No. 3:18-CR-005, Doc. No. 1.) a States to Distribute and Dispense Controlled Substances) and covered a time period between January 1, 2000 to June 3, 2015; Count Two charged a violation of 18 U.S.C. § 371 (Conspiracy), covering the same time period. The Information Defendant Information includes Assets. on a Forfeiture Bird March 21, pled Count guilty 2018 . In listing to the his plea all of the charges in the agreement. Bird admitted that from January 1, 2000 to June 3, 2015, he knowingly and willfully medical engaged practices, in which financial transactions transactions involved concerning the proceeds his of unlawful distribution and dispensation of controlled substances. (United States v. Bird, Crim. Case No. 3:18-CR-005, Doc. No. 8, at 1 Prior thereto. Bird had been indicted by a grand jury on 176counts involving conspiracy, unlawful dispensation of controlled substances, unlawful dispensation of controlled substances resulting in death, and conspiracy to commit money laundering. (See Indictment in United States v. Bird, Crim. Case No. 3:17-CR001 (S.D. Ga. Mar. 18, 2017).) 5 He 2-3. ) million further in cash admitted proceeds into that they or deposited various his interest in the constitute, he (Id. at 4.) accounts controlled by him. to forfeit that are more financial $4.5 institution Additionally, Bird agreed Defendant Assets, derived than from, acknowledging proceeds obtained. directly or indirectly, as a result of the offenses upon which he (Id. at 7-9.) pled guilty. a Consent Order of In accordance with his plea agreement. Forfeiture was entered on March 21, 2018, whereby the Court determined that the Government had established the requisite nexus between the Defendant Assets and the offenses committed by 981(a)(1)(C), Bird 28 pursuant to 21 U.S.C. U.S.C. § 2461(c), Federal Rules of Criminal Procedure. and § Rule 853, 18 U.S.C. 32.2(b)(1) of § the (United States v. Bird, Crim. Case No. 3:18-CR-005, Doc. No. 9.) About this same time, on March 19, 2018, Claimant Lisa Bird, the former wife of George Mack Bird III, filed a claim against the Defendant Assets in this civil case. (Doc. No. 30.) She also filed an Answer to the Timended Verified Complaint of Forfeiture In Rem on April 18, 2018. (Doc. No. 31.) On September 18, 2018, Bird was sentenced by the Court to serve a total of 100 months imprisonment. Commitment Order entered on September In the Judgment and 21, 2018, the Court incorporated by specific reference its Consent Order of Forfeiture of March 21, 2018, noting that the forfeiture of the 6 Defendant Assets was final with respect to the property interests of George Mack Bird III. (United States v. Bird, Grim. Case No. 3:18-CR\\ The Court added: 005, Doc. No. 34.) Property interests affected by the Consent Order of Forfeiture, however, remain inchoate and unresolved with respect to any third-party claimant, particularly Claimant Lisa Bird, until such time as the civil proceeding. CV 316-020, is concluded. rr (Id. at 7 .) Also on September 18, 2018, Claimant Lisa Bird filed in Bird's criminal case a motion to set aside the Consent Order of Forfeiture and to reopen the civil ancillary proceeding. (United States v. Bird, Crim. Case No. 3:18-CR-005, Doc. No. 29.) 2018, the Court entered an Order in this On September 24, civil case expressly recognizing the claim of Claimant Lisa Bird and lifting the imposed stay. (Doc. No. 33.) Since that time, the Court and interested parties have focused their attention and efforts on determining the ownership of a Rowe T. Price Account that the Government released from forfeiture and which had never been subject to the Consent Order of Forfeiture in the criminal case. Nevertheless, the parties had ample opportunity to conduct discovery with respect to the Defendant Assets, and at the conclusion of the discovery period, the Government filed judgment on August 30, 2019. to the T. Rowe Price the instant motion for summary Because of the intervening attention Account, and with the Court's approval. Claimant Lisa Bird did not file her response in opposition to the 7 The motion motion for summary judgment until December 11, 2020. IS now fully briefed and ripe for decision. II. motion for summary judgment, the On a Court SUMMARY JUDGMENT STANDARD is whether the record, when question before the viewed in the light most favorable to the nonmoving party, shows that there is no genuine dispute as to any material fact and that purpose of the summary judgment moving party is Fed. R. Civ. P. 56(a) . entitled to judgment as a matter of law. The the rule is to dispose of unsupported claims or defenses which, as a matter of law, raise no genuine issues of material fact suitable for trial. Celotex Corp. V. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial burden of demonstrating that there is no genuine dispute as to any material fact. Hornsby- Culpepper v. Ware, 906 F.3d 1302, 1311 (11^^ cir. 2018) (citing Celotex Corp., 477 U.S. at 323). w The movant may carry this burden by demonstrating that the nonmoving party has failed to present /t sufficient evidence to support an essential element of the case. Id. (citing Celotex Corp., 477 U.S. at 322-23). Once the moving party meets this initial burden, the burden shifts to the nonmoving party to move beyond the pleadings and to designate evidence which demonstrates the existence of a genuine dispute of material fact to be resolved at trial. Id. at 1311-12 (citing Celotex Corp., 477 U.S. at 324); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 257 (1986). In considering a motion for summary judgment, all facts and reasonable inferences are to be construed in favor of the nonmoving party. Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir. 2004). Moreover, [t]he mere existence of some factual dispute will not defeat summary judgment unless the factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the A genuine issue of materiality of a disputed fact, material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor. Chapman v. AI Transport, 229 F.3d 1012, 1023 (ll^h cir. 2000) (quoted source omitted) (emphasis supplied). III. In a civil LEGAL ANALYSIS forfeiture proceeding, the Government has the burden of proof "to establish, by a preponderance of the evidence. // that the 983(c)(1) . property is subject to forfeiture. 18 To do so. the Government may use evidence after the filing of the complaint for forfeiture. U.S.C. § gathered Id. § 983(c)(2). The preponderance standard is met if the government shows that it is more probable than not the property is subject to forfeiture. See, e-g- ^ United States v. $19,054.00 in U.S. Funds, 2012 WL 1094361, *4 (M.D. Ga. Sept. 17, 2012); United States v. One 2008 Chevrolet Tahoe C1500, 2011 WL 176887, *6 (N.D. Ga. Jan. 19, 2011). Here, the Government originally sought forfeiture of Defendant Assets under two statutory provisions: 21 U.S.C. § 881 (a) (6) and 18 the U.S.C. § substantive 981(a)(1) (A). argument 981(a)(1)(A). or However, offer Accordingly, of the proof Court Government respecting will only 18 makes no U.S.C. § evaluate the Government's case under 21 U.S.C. § 881(a)(6). Section States of 881 (a) (6) all moneys provides and other for forfeiture things of to value the United furnished or intended to be furnished by any person in exchange for a controlled substance as well as all proceeds traceable to such an exchange. In order to meet its burden of proof, the Government must establish by a preponderance of the evidence that there was a connection between the property and the offense. 983(c)(3). // substantial 18 U.S.C. § The Government need not, however, prove that the money is traceable to a specific transaction in illicit drugs; instead. the Government need only show that the money was illegal drug transaction. // related to some United States v. $242,484.00, 389 F.3d 1149, 1160 (11th cir. 2004); United States v. $52,000.00, More or Less, in U.S. Currency, 508 F. Supp. 2d 1036, 1040 (S.D. Ala. 2007) (cited source omitted). Applying these legal standards to the facts of this case, the Court finds and concludes, under the totality of the circumstances. that the Government has shown by a preponderance of the evidence 10 that the Defendant Assets were derived from or traceable to Bird's See $242,484.00, 389 F.3d at 1160. In illegal drug transactions. particular, the Government has shown that Bird orchestrated an illegal drug scheme that produced a tremendous amount of cash over a fifteen-year period capable of funding the various accounts and purchasing the real property. In fact, after 2010, Bird's medical Importantly, practice was largely, if not entirely, illegitimate. Bird admitted that the Defendant Assets are directly related to or derived from his illegal drug operation. At this point. the burden of proof shifts to Claimant Lisa Bird to show, by a preponderance of the evidence, a defense to the forfeiture or to prove that the property is not otherwise subject to forfeiture. See United States v. $63,788.00 More or Less in U. S. 2018 Currency, WL 1629114, *6 (quotations and cited source omitted). (S.D. Ala. Apr. 3, 2018) In response to the motion for summary judgment. Claimant Lisa Bird presented no competent evidence to counter the Government's proof that the Assets were the result of illegal drug transactions. Defendant Rather, she claims to be an innocent owner of the Defendant Assets. Congress has determined that property statute. rr shall not be Indeed, [a]n innocent owner's interest in forfeited under any civil forfeiture 18 U.S.C. § 983(d)(1). In order to assert the "innocent owner" defense, an individual must first qualify as an \\ owner, // 11 as defined by statute, with an including a leasehold, lien, ownership interest in the property mortgage, recorded security interest, or valid assignment of an n 18 ownership interest. U.S.C. § 983(d) (6)(A) . In this case. Claimant Lisa Bird has not shown that she has or had an ownership interest in any of the Defendant Assets through deed, title. purchase, security interest, or any other indicia of ownership. She has not shown that she exercised any dominion or control over the Defendant Assets. Rather, her sole basis for her claimed ownership interest is her marriage and subsequent divorce to George Mack Bird III. The fact of marriage in and of itself does not establish innocent ownership of the Defendant Assets. Further, her Divorce Decree (entered on June 26, 2017, in Oconee County, Georgia) only provides Claimant Lisa Bird with an interest in the Defendant Assets in the event the Government releases the assets from this forfeiture action, which has not occurred. (See Final Judgment and Decree, Doc. No. 30, Ex. A.) In short. the Government has met its burden to establish the Defendant Assets are substantially connected to a controlled substance offense, and Claimant Lisa Bird has failed to establish a defense forfeiture. or prove the property is not otherwise subject to Accordingly, the entry of summary judgment for the Government is proper. See $63,788.00 in U.S. Currency, 2018 WL 1629114, at *6. 12 IV. Upon the foregoing, CONCLUSION the Government's motion judgment in this case (doc. no. 88) is GRANTED. final judgment, the case shall be CLOSED. bear their own costs. for summary Upon entry of The parties shall each The Clerk is directed to ENTER JUDGMENT in favor of the United States of America and against Claimant Lisa Bird whereby each of the Defendant Assets listed in caption are FORFEITED to the United States of America. this case Should the United States require a more detailed description of any of the forfeited Defendant Assets in a separate order or writ of fi. fa. for the purpose of recording or execution. the United States Attorney shall so request by application there^ ORDER ENTERED at Augusta, Georgia this day of February, 2021. UNITED STXTES DISTRICT JUD- 13
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