United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
Christopher Worley filed a claim in this matter alleging that
he is the rightful owner of subject $195, 005.00 and that it
should be returned to him. The parties are engaged in
discovery. Worley now moves for a protective order to stay
further compliance with civil discovery and preclude the
government from utilizing its subpoena power to obtain
records from third parties for use in any criminal
investigation of claimant (#28). The government opposes the
federal statute addressing civil forfeiture actions states
(2) Upon the motion of a claimant, the court shall stay the
civil forfeiture proceeding with respect to that claimant if
the court determines that-
(A) the claimant is the subject of a related criminal
investigation or case;
(B) the claimant has standing to assert a claim in the civil
forfeiture proceeding; and
(C) continuation of the forfeiture proceeding will burden the
right of the claimant against self-incrimination in the
related investigation or case.
18 U.S.C. § 981(g)(2). The statute also allows for a
protective order limiting discovery instead of staying the
matter. Id. § 981(g)(3). However, “[i]n
no case…shall the court impose a protective order as
an alternative to a stay if the effect of such protective
order would be to allow one party to pursue discovery while
the other party is substantially unable to do so.”
Worley states that the government has served subpoenas on
Claimant's financial institutions, his ex-wife, and other
third parties. The government seeks documents pertaining to
banking records, mortgages, and Claimant's divorce.
facts underlying this matter are as follows: Claimant was
traveling westbound on Interstate 70 when he was stopped by
police officers allegedly for following another vehicle too
closely. Claimant's pickup truck was subjected to a K9
sniff, and the dog alerted to the presence of a controlled
substance. Although no controlled substances were found, the
officers found and seized $195, 005 from a black duffle bag.
Claimant was not issued a traffic citation. Claimant told the
officers he did not have an ownership interest in the money,
and he signed a disclaimer of property form stating the same.
Despite this, he filed a claim to the defendant property on
November 28, 2018, in response to the government's filing
of this forfeiture action.
argues that the government's objections to claimant's
own discovery requests are tacit admissions that the
government is currently conducting a criminal investigation
against claimant. For example, the government has stated in
response to those discovery requests that “Plaintiff
objects to Claimant's requests to the extent the seek
disclosure of information of the United States' criminal
investigation in this matter.” Claimant also cites
other circumstances that suggest to him the government is
criminally investigating him: for example, (1) the government
claims as privileged its records of Vehicle Detection
Reports, and (2) the government discovery
responses show that the United States Marshals Service is
investigating Claimant's banking activities. Claimant
contends he is the subject of this investigation and that
continuation of discovery will burden his right against
self-incrimination in the related investigation or case.
government's stated reason for bringing this civil
forfeiture action is that the seized currency is money
traceable to a violation of the Controlled Substances Act.
When asked directly whether the government is investigating
claimant, the Assistant United States Attorneys refuse to
either confirm or deny the existence of such an
this notwithstanding, the government argues that claimant has
not shown that he is the subject of a related criminal
investigation or case as required by the statute. This Court
observes that any investigation related to the $195, 005 is
“related” to the civil forfeiture proceeding.
Regardless of whether a “related” investigation
exists, the Court agrees with the government that claimant
has failed to make the required showing under §
981(b)(2) because he cannot show that the discovery requests
will violate claimant's Fifth Amendment right against
self-incrimination. A claimant does not have a right to make
a blanket assertion of Fifth Amendment privilege against
self-incrimination. United States v. Dick, 694 F.2d
1117, 1119 (8th Cir. 1982). Rather, he must make specific
assertions of the privilege against specific questions or
requests. Id. Further, the privilege against
self-incrimination “protects a person only against
being incriminated by his own compelled testimonial
communications.” Doe v. United States, 487
U.S. 201, 207 (1988) (quotation omitted). Claimant did not
assert his Fifth Amendment rights with respect to the written
discovery propounded by the government. As for the subpoenas
about which claimant complains, claimant cannot assert a
Fifth Amendment privilege to prevent a third party from
producing documents in response to a Rule 45 subpoena.
Couch v. United States, 409 U.S. 322, 616 (1973).
Thus, claimant has not made the showing required for a
protective order under 18 U.S.C. § 981(g)(2), and his
motion will be denied.
IT IS HEREBY ORDERED that the claimant's
motion for ...