United States District Court, S.D. Georgia, Dublin Division
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). (Doc. No. 1.) This Court has
jurisdiction over the case pursuant to 28 U.S.C. §
and 28 U.S.C. § 1355(a).
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.
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.)
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.
(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.
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 will be returned to the
Defendant." (United States v. Bird, Crim. No.
318-005, Doc. No. 8, at 9.)
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.)
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.
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.
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.
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.
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
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 ...