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United States v. Funds Seized From T. Rowe Price Account Ending In XXXX5215

United States District Court, S.D. Georgia, Dublin Division

July 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FUNDS SEIZED FROM T. ROWE PRICE ACCOUNT ENDING IN XXXX5215 FUNDS CONTAINED IN VANGUARD CHARITABLE ENDOWMENT PROGRAM ACCOUNT ENDING IN XX290 FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN XXXX7422; FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN X XXXX6909; FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN XXXX4334; FUNDS SEIZED FROM BANK OF EASTMAN ACCOUNT ENDING IN XX7548; FUNDS SEIZED FROM STATE BANK AND TRUST COMPANY ACCOUNT ENDING IN XXXX7036; FUNDS SEIZED FROM UNITED FIRST FEDERAL CREDIT UNION ACCOUNT ENDING IN XX7265; FUNDS SEIZED FROM T. ROWE PRICE ACCOUNT ENDING IN XXXX3286; FUNDS SEIZED FROM ATHENS FIRST BANK AND TRUST ACCOUNT ENDING IN XXXX4344; FUNDS SEIZED FROM EMORY CAPITAL MANAGEMENT ACCOUNT ENDING IN XX2400; FUNDS SEIZED FROM EMORY CAPITAL MANAGEMENT ACCOUNT ENDING IN XX2401; REAL PROPERTY LOCATED AT 821 PLAZA AVENUE, EASTMAN, XXX8340; FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN XXXX7449; FUNDS SEIZED FROM FIDELITY INVESTMENTS ACCOUNT ENDING IN GEORGIA; REAL PROPERTY LOCATED AT 3037 HIGHWAY 257, DUBLIN, GEORGIA; REAL PROPERTY LOCATED AT 2772 CLAXTON DAIRY ROAD, DUBLIN, GEORGIA; REAL PROPERTY CONSISTING OF 62.3 ACRES IN DODGE COUNTY, GEORGIA; and REAL PROPERTY CONSISTING OF 56.47 ACRES IN DODGE COUNTY, GEORGIA, Defendants.

          ORDER

         On April 7, 2016, the United States Attorney filed this in rem civil forfeiture proceeding, alleging that the properties listed in the case caption are subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6) and 18 U.S.C. § 981(a)(1)(A).[1] (Doc. No. 1.) This Court has jurisdiction over the case pursuant to 28 U.S.C. § 1345[2] and 28 U.S.C. § 1355(a).[3]

         The instant Order focuses on the first two accounts appearing in the above case caption: Funds Seized from T. Rowe Price Account Ending in XXXX5215 (the “T. Rowe Price Account") and the Funds Contained in Vanguard Charitable Endowment Program Account Ending in XX2970 (the "Vanguard Account"). All listed assets except the Vanguard Account were seized by the United States Marshals Service pursuant to seizure warrants issued in June 2015. The seized funds, including the T. Rowe Price Account, are currently being held in a forfeiture fund known as the Seized Assets Deposit Fund managed by the United States Marshals Service. The custodian of the Vanguard Account agreed to freeze the account upon request of the United States Attorney's Office. Accordingly, the Vanguard Account funds remain in the account.

         These same captioned assets were listed as property subject to criminal forfeiture under 18 U.S.C. § 1982(a)(1) in the Indictment of George Mack Bird III ("George Bird") filed in the Southern District of Georgia on March 8, 2017. (United States v. Bird, Crim. No. 317-001 (S.D. Ga. Mar. 8, 2017).) This civil action was stayed pending resolution of the criminal matter. (Order of Apr. 18, 2016, Doc. No. 7.)

         George Bird was married to Lisa Bird at the time the assets were seized. The two had filed for divorce in 2009, but the final Divorce Decree was not entered until June 26, 2017. The Divorce Decree clearly recognizes that all of the assets named in this case (the same assets that were subject to forfeiture in George Mack's Indictment) are subject to this civil forfeiture action. (Divorce Decree, Doc. No. 30-1, at 3-4.) Importantly, the Divorce Decree list includes the two funds at issue in this Order - the T. Rowe Price and Vanguard Accounts. (Id.) The Divorce Decree unambiguously provides as follows:

In the event that any of the assets subject to the forfeiture action are released, [Lisa Bird] shall receive the first $2, 000, 000 of the released assets.[4]

(Id. at 4.) The Divorce Decree was signed by Lisa Bird and George Bird, both of whom were represented by able counsel. (Id. at 6.) Of note, George Bird's criminal defense attorneys, Robert R. McLendon IV and Jason Ferguson, were also present at the proceeding.[5]

         Almost nine months later, George Bird pled guilty to an Information on March 21, 2018. (United States v. Bird, Crim. No. 318-005 (S.D. Ga. Mar. 8, 2018).) The Information's forfeiture provision omitted the two subject Accounts (the T. Rowe Price and Vanguard Accounts). Moreover, the Consent Order of Forfeiture approved by the presiding judge in the criminal case did not include the two subject Accounts. The Government represents that it decided not to pursue these Accounts. In fact, the Plea Agreement executed by George Bird on March 5, 2018, provides as follows: "The Government agrees that the funds seized from T. Rowe Price account ending in XXXX5212[6] will be returned to the Defendant." (United States v. Bird, Crim. No. 318-005, Doc. No. 8, at 9.)

         Two days prior to the guilty plea hearing, Lisa Bird filed a Notice of Claim in the instant case, claiming an interest in all of the listed assets, including the two subject Accounts. (Doc. No. 30.) She attached the Divorce Decree to her Notice of Claim. Lisa Bird also filed an Answer to the Amended Complaint on April 18, 2018, again asserting an interest in the listed assets. (Doc. No. 31.)

         George Bird was sentenced to serve a total term of 100 months imprisonment on September 18, 2018. That same day, Lisa Bird filed in George Bird's criminal case a motion to set aside the Consent Order of Forfeiture and to reopen the civil forfeiture proceeding. (United States v. Bird, Crim. No. 318-005, Doc. No. 29.) On September 24, 2018, the Court lifted the stay that had been entered in this case and re-opened a notice period for the filing of verified claims. (Doc. No. 33.) In the September 24, 2018 Order, the Court also ordered that "no disposition of any of the captioned properties shall be made except upon further Order of the Court." (Id. (emphasis added).) To date, no third-party claimant other than Lisa Bird has filed any claim of interest in any of the assets.

         The Court set an evidentiary hearing in the case for March 26, 2019, but upon a consent motion of the Government and Lisa Bird, the hearing was continued to allow for discovery. Discovery in the case closed on June 18, 2019.

         On June 19, 2019, Lisa Bird filed a "Motion for Contempt to Enforce a Court Order" wherein she complains that the two subject Accounts (T. Rowe Price and Vanguard Accounts) "are in the process of being returned to George Mack Bird." (Doc. No. 57, at 3.) The Court conducted a hearing in the matter on July 2, 2019, in Dublin, Georgia, at which Assistant United States Attorney Xavier A. Cunningham and Lisa Bird appeared. As noted supra at note 5, George Bird's criminal defense attorneys did not appear despite being ordered to do so.

         At the hearing, AUSA Cunningham represented that the Government has essentially abandoned the two subject Accounts and seek to distribute the funds consistent with the Plea Agreement, particularly as it relates to the T. Rowe Price Account. Lisa Bird claimed the funds should be released to her in accordance with the Divorce Decree.

         Upon due consideration, the Court finds that Lisa Bird has established more than a prima facie entitlement to the funds through the Divorce Decree. Two days prior to the guilty plea hearing of George Bird, Lisa Bird filed a claim in this civil forfeiture case, attaching her Divorce Decree which unambiguously gives her a right to claim the first $2, 000, 000 of released funds. Thus, the Government had imputed if not actual knowledge of Lisa Bird's claim prior to presenting the Plea Agreement to this Court. In actuality, the Plea Agreement is a contract between the United States Government and George Bird, but it is not binding upon Lisa Bird, a non-party. Moreover, the Court is constrained to consider Georgia law relative to constructive trusts here.[7]

         The Court notes the Government's unswerving commitment to the fulfillment of the Plea Agreement in the criminal case of George Mack Bird III. The Government suggests that its only alternative is to somehow ensure the direct release of the subject funds to George Bird. However, upon the facts and law now before the Court the fate of the funds was sealed on June 26, 2017, by George Bird himself. Barring some feature or reason yet unknown to the Court, the Divorce Decree is the controlling document. While the Plea Agreement says that the T. Rowe Price funds will be "returned" to George Bird, George Bird had himself predetermined the passage of the funds to Lisa Bird. The Plea Agreement does not require the Government to guarantee a delivery of ...


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