United States District Court, D. Nevada
REPORT AND RECOMMENDATION
HOFFMAN, JR., UNITED STATES MAGISTRATE JUDGE.
before the court is the United States of America's Motion
for an Interlocutory Order of Sale of the Property and Order
(ECF No. 113), filed on February 8, 2019. Defendant Sylviane
Della Whitmore filed a response (ECF No. 120) on February 20,
2019. Defendants Phillip D. Hurbace and Larry Anthony
McDaniel did not respond to the motion. The government filed
a reply (ECF No. 125) on March 29, 2019.
parties are familiar with the facts of this case and the
court will not repeat them here except where necessary. The
government moves for an order authorizing an interlocutory
sale of a 2010 gold convertible two-door Jaguar XK. The
government seized the car from McDaniel on March 21, 2016.
(Lowe Aff. (ECF No. 113-1) at ¶ 2.) The car most
recently appraised for $16, 537. (Id. at ¶ 3.)
Each month, the government spends approximately $401.07 to
store and maintain the car. (Id. at ¶ 4.) As of
February 14, 2019, the government had spent approximately
$14, 839.78 on storage and maintenance. (Id. at
¶ 5.) Defendants' trial is currently set for
November 18, 2019. (Order (ECF No. 119).) The government
argues that if it waits until a final order of forfeiture,
storage and maintenance costs will exceed the car's
responds that the government has not met its burden of
justifying the request for the sale, arguing the government
does not provide evidence the car is depreciating or
otherwise deteriorating. Whitmore argues that given the
upcoming trial date, the continued storage costs are
negligible in relation to the costs incurred to date.
Whitmore also argues it is the government's fault it has
incurred the storage and maintenance costs.
government replies that Whitmore lacks standing to oppose the
interlocutory sale because she has no property interest in
the car and therefore will not suffer an actual or imminent
injury from its sale. The government provides documentation
from the Nevada Department of Motor Vehicles indicating the
car's title and registration are in McDaniels' name.
(Reply, Ex. 3 (ECF No. 125-1).) The government further
replies that the expense of maintaining and storing the car
is disproportionate to its value and there is no guarantee
the trial will occur as scheduled. Finally, the government
states that defendants requested four of the six extensions
in this case and that the other two were requested by all
any time before entry of a final forfeiture order, the court,
in accordance with Supplemental Rule G(7) of the Federal
Rules of Civil Procedure, may order the interlocutory sale of
property alleged to be forfeitable.” Fed. R. Crim. P.
32.2(b)(7). Under Supplemental Rule G(7),
the court may order all or part of the property sold if: (A)
the property is perishable or at risk of deterioration,
decay, or injury by being detained in custody pending the
action; (B) the expense of keeping the property is excessive
or is disproportionate to its fair market value; (C) the
property is subject to a mortgage or to taxes on which the
owner is in default; or (D) the court finds other good cause.
Fed. R. Civ. P., Supp. Rule G(7)(b)(i). It is within the
court's discretion whether to order the interlocutory
sale of property subject to forfeiture. United States v.
Hall, 877 F.3d 676, 680 (6th Cir. 2017).
the government demonstrates the expense of storing and
maintaining the car is disproportionate to its appraised
value, thereby satisfying Rule G(7)(b)(i)(B). Specifically,
the government provides an affidavit indicating that as of
February 14, 2019, it had spent approximately $14, 839.78 on
storage and maintenance for a car valued at $16, 537.
Further, as the government represents in its reply,
“[i]f allowed to continue to accrue fees through
November 18, 2019 (the current trial date), the government
will accrue an additional $3, 609.63 ($401.07/month for nine
months) for an approximate total of $18, 449.41 in fees for a
vehicle appraised at $16, 537.” (Reply (ECF No. 125) at
13:4-7.) Thus, the value of the car is disproportional to the
maintenance and storage charges. Costs will continue to
increase as the current trial setting is more than seven
months away and will soon exceed the car's value. The
court therefore concludes that the expense of keeping the car
is excessive and disproportionate to the car's value.
McDaniel nor Hurbace opposed the motion, which constitutes a
consent to the granting of the motion under Local Criminal
Rule 47-3. Although Whitmore opposed the motion, she does not
articulate her property interest in the car or how she will
be harmed by the sale. She therefore does not satisfy Article
III's standing requirement. See Hall, 877 F.3d
676, 681 (6th Cir. 2017) (“Article III standing
requires a party invoking federal jurisdiction to demonstrate
that it has suffered an injury in fact . . . which is (a)
concrete and particularized . . . and (b) actual or imminent,
not conjectural or hypothetical.” (quotation omitted)).
Given that the government has met its burden of demonstrating
the expense of storing and maintaining the car is
disproportionate to its appraised value and that Hurbace does
not oppose the motion, the court will recommend the entry an
interlocutory order of sale.
RECOMMENDED that the United States of America's Motion
for an Interlocutory Order of Sale of the Property ...