United States v. $189,880.00 in U.S. Currency ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
$189,880.00 IN U.S. CURRENCY, et al., Civil Action No. 07-2156 (TFH)
Defendants,
-and-
LONNELL G. GLOVER,
Claimant.
MEMORANDUM OPINION
This is a civil in rem action in which the United States (the “government”) seeks the
forfeiture of six sums of money it seized in 2007 during the criminal investigation and
prosecution of the claimant, Lonnell G. Glover. See Verified Compl. for Forfeiture In Rem, ¶¶ 1,
49–52 (ECF No. 1). Pending before the Court is the Government’s Motion for Summary
Judgment (ECF No. 21). The merits of the government’s motion depend on a plea agreement
that Glover executed on February 13, 2017, in his criminal case, United States v. Glover, No. 07-
0153 (TFH). The government never submitted that plea agreement for the record in this case.
To prevail on summary judgment, the government must show that there are no genuine
disputes of material fact and it is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a). To show that there are no genuine disputes of material fact, the government must cite to
“particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A) (emphasis added).
In addition, Rule 7(h)(1) of the Rules of the United States District Court for the District
of Columbia (referred to as the “local rules”) requires the government to provide a statement of
undisputed material facts in support of its motion for summary judgment. LCvR 7(h)(1). 1 Rule
7(h)(1) further mandates that the statement of undisputed material facts “shall include references
to the parts of the record relied on to support the statement.” Id. (emphasis added).
Both the government’s Motion for Summary Judgment and its Statement of Undisputed
Facts fail to reference matters that are part of the record in this case. Instead, the government’s
Statement of Undisputed Facts cites Glover’s February 13, 2017, plea agreement and other
documents that are found in the record of Glover’s criminal case. See, e.g., Gov’t’s Statement of
Undisputed Facts In Supp. of Mot. for Summ. J. ¶¶ 29, 35–39 (ECF No. 21-1). Meanwhile, it is
clear that the success of the government’s Motion for Summary Judgment depends on the truth
of matters asserted in Glover’s plea agreement. The government’s principal argument in favor of
summary judgment is that Glover’s plea agreement memorializes his promise to forfeit the
property that is the subject of this civil in rem action. See Gov’t’s Mem. of P.&A. In Supp. of
Mot. for Summ. J. 5 (ECF No. 21-2) (arguing that “Glover’s guilty plea, in which he forfeited all
interest in the Seized Properties, necessitates summary judgment as a matter of law”). As
already noted, however, that plea agreement has never been submitted for the record in this case.
Moreover, although Rule 201(b) of the Federal Rules of Evidence allows a federal court
to take judicial notice of “a fact that is not subject to reasonable dispute” if that fact “is generally
1
The local rules are available on the Court’s public website at https://www.dcd.uscourts.gov/
sites/dcd/files/LocalRulesJanuary_2019.pdf.
known within the trial court’s territorial jurisdiction” or “can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned”—and the D.C.
Circuit has applied this rule to take judicial notice of court records in other cases—a federal court
may not rely on a court record that was subject to such judicial notice for the truth of matters
asserted in that record. See Hurd v. D.C., Gov’t, 864 F.3d 671, 686 (D.C. Cir. 2017) (internal
quotation marks omitted). This “common-sense limitation on judicial notice is particularly apt in
a case where the court purports to treat a noticed fact as preclusive.” Id. In this case, the fact
that Glover’s plea agreement contains his promise to forfeit the property the government seeks
could be preclusive if it prevents Glover from successfully challenging the government’s motion
for summary judgment.
Further complicating matters, Glover has appealed the February 13, 2017, plea agreement
to the D.C. Circuit, which entertained oral arguments several months ago on December 6, 2018.
See Courtroom Minutes of Oral Argument, United States v. Glover, No. 17-3034 (D.C. Cir. Dec.
6, 2018). Glover challenges the legality of the plea agreement on the grounds that (1) it was not
knowingly and intelligently entered into, (2) he was coerced to plead guilty, (3) the Court failed
to inform him about the consequences of the plea, (4) the Court did not investigate the serious
concerns he expressed about his attorneys, and (5) his attorneys provided ineffective assistance
of counsel regarding his guilty plea. See Br. of Appellant Lonnell G. Glover 1–2, Glover, No.
17-3034. Thus, on appeal, Glover is effectively challenging the truth of the matters asserted in
the very plea agreement on which the government relies to support the merits of its pending
motion for summary judgment and to establish that no material facts are in dispute.
Although Glover failed to comply with the Court’s October 18, 2018, order granting him
until December 17, 2018, to file an opposition to the government’s motion for summary
judgment, the Court may not deem the government’s motion to be conceded and “must . . .
determine for itself whether the record and any undisputed material facts justify granting
summary judgment.” 2 Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016)
(quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J.,
concurring)). Because it is material whether Glover agreed to forfeit the property that is the
subject of this in rem action, however, the Court is unable to conclude that undisputed material
facts justify granting summary judgment at this stage and in light of Glover’s pending appeal in
his criminal case.
CONCLUSION
For all these reasons, the Court will deny without prejudice the Government’s Motion for
Summary Judgment (ECF No. 21). An order consistent with this Memorandum Opinion will be
filed contemporaneously.
___________________________________
THOMAS F. HOGAN
United States District Judge
March 31, 2019
2
This Court also cannot grant summary judgment against Glover, who is a pro se prisoner,
without first giving “fair notice of the requirements of the summary judgment rule.” Ham v.
Smith, 653 F.2d 628, 630 (D.C. Cir. 1981) (per curiam) (quoting Hudson v. Hardy, 412 F.2d
1091 (D.C. Cir. 1968)). The required notice must “include an explanation that the failure to
respond to an adverse party’s summary judgment motion may result in the district court granting
the motion and dismissing the case.” Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988) (per
curiam).