UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 20-60622-Civ-RUIZ

UNITED STATES OF AMERICA,

Plaintiff,

v.

1010 N. 30TH RD., HOLLYWOOD, FL 33021; 

326 WILSON ST., #204, HOLLYWOOD FL 33019; 

912 N. 30TH RD., HOLLYWOOD, FL 33021; and 

5724 MCKINLEY ST., HOLLYWOOD, FL 33021,

Defendants In Rem.

____________________________________________/

MOTION TO DISMISS COMPLAINT

Pursuant to Fed. R. Civ. P. 12(b) and Rule G(5)(b) of the Supplemental

Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, Claimants

Emilio Garcia, Andres Zamora, Isleidys Zamora, and Iliana Zamora (the

Claimants), through undersigned counsel, respectfully move to dismiss the

complaint, and in support of the motion state as follows:

1. FAILURE TO STATE A CLAIM.

The requirement of Supplemental Admiralty Rule G(2)(f) that a forfeiture

complaint plead sufficiently detailed facts to support a reasonable belief that the

government will be able to meet its burden of proof at trial, is more stringent than

the general pleading requirements set forth in the Federal Rules of Civil Procedure.

 United States v. Dacca Rett, 6 F.3d 37, 47 (2d Cir. 1993). Even under Fed. R.

Civ. P. 8, to survive a motion to dismiss, a complaint must set forth a sufficient

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factual, rather than conclusory, showing of liability for the misconduct alleged. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not

do.’ Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (citation

omitted). 

In Twombly, the Supreme Court abrogated prior decisions ruling that a

complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief. 550 U.S. at 561; see also id. at 560 (explaining

the need for something more than merely parallel behavior in the factual

allegations); Financial Security Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276,

1282–83 (11th Cir. 2007) (citing Twombly). Therefore, a complaint that consists

of legal conclusions masquerading as facts should be dismissed. Oxford Asset

Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). As the Supreme

Court explained, such conclusory allegations do not unlock the doors of discovery. 

Iqbal, 556 U.S. at 678; see Weissman v. National Association of Security Dealers,

Inc., 500 F.3d 1293, 1303 (11th Cir. 2007) (holding that Twombly rejected the

notion that a conclusory statement of claim can survive a motion to dismiss

whenever the pleadings leave open the possibility that the plaintiff might later

establish undisclosed facts to support recovery).

Each of the causes of action (Claims 1–4) in the Complaint is deficient under

the governing pleading standard. The Complaint conclusorily alleges four theories

of liability. As to 326 Wilson St., 912 N. 30th Rd., and 5724 McKinley St.

(referred to as properties 2–4 in the Complaint), the Complaint asserts that the

defendant properties: involved money laundering offenses (Complaint ¶ 3, citing

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18 U.S.C. § 981(a)(1)(A)); involved federal structuring offenses (id., citing 31

U.S.C. § 5317(c)(2)); and were traceable to the proceeds of narcotics trafficking

offenses (id., citing 21 U.S.C. § 881(a)(6)). As to 1010 N. 30th Rd. (property 1 in

the Complaint), the claim asserted is that the property was used or intended to be

used ... to commit narcotics trafficking offenses (Complaint ¶ 2, citing 21 U.S.C. §

881(a)(7)).

A. Money laundering claim. The Complaint fails to identify any money

laundering violation, whether by statutory citation, title, or even a colloquial

identifier. Notably, the Complaint fails to identify whether there is an allegation of

money laundering under 18 U.S.C. §§ 1956 or 1957 or whether some other form of

laundering violation, beyond the parameters of the primary statutes, is intended. 

The Complaint’s failure to identify a money laundering crime renders the claim

fatally deficient and impossible to defend against. And the absence of any

specification of such an offense is compounded by the absence of any factual

allegations that would bring the properties within the scope of the money

laundering statutes. 

The conclusory allegations in the Complaint fail assert any of the elemental

facts necessary to claim a money laundering violation, including the crucial mens

rea elements. To the extent the government relies merely on a proceeds forfeiture

theory and conflates that with a money laundering theory, such a mistake is

fundamental error. The proceeds theory allegations are addressed more fully

below. But even assuming a proceeds allegation of sufficient factual clarity, the

government has alleged nothing to show the involvement of any of the properties

in this case to a violation of money laundering statutes. Nor does the Complaint

explain how or when the properties “involved money laundering offenses.” The

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government simply has not alleged—even conclusorily—that the purchasers of the

properties committed any money laundering violations, and thus the claim fails

under the Twombly-Iqbal standard and Rule G(2)(f)’s detailed-facts pleading

requirement.

B. Structuring claim. The Complaint fails to set forth facts showing a

structuring violation. Instead, the Complaint alleges, conclusorily, that a majority

of cash deposits made by three persons were less than $10,000 and appear to have

been structured in this manner to avoid federal reporting requirements. Complaint

¶¶ 48, 53, and 56. This speculative allegation is facially insufficient and entirely

conclusory, where the Complaint sets forth neither the transactions at issue nor the

basis for a conclusory opinion on how or why the transactions might appear to

relate to transactional intent. 

The first key defect in the structuring claim is that the sole factual allegation

is that a majority of cash deposits involved amounts less than $10,000. This

allegation necessarily implies that an untold minority (49 percent?) of the

transactions were of an amount greater than $10,000 and that those transactions

could not have been part of below-$10,000 structuring effort. A conclusory

allegation that 51 percent or more of an unstated number cash deposits were below

$10,000 is not an allegation of a crime. 

Second, and more importantly, the Complaint proceeds in contravention of

the relevant definition of a structuring offense. In United States v. Lang, 732 F.3d

1246, 1247–48 (11th Cir. 2013), the Eleventh Circuit held that the unit of

prosecution under 31 U.S.C. § 3524(a)(3) is the financial transaction actually

structured, not a list of smaller transactions that, if added up, would amount to

more than $10,000. In reaching this conclusion, the Eleventh Circuit recognized

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that one cannot be properly charged—let alone properly convicted—of having

structured a financial transaction to avoid a Currency Transaction Report (CTR) if

the financial transaction alleged to have been structured would not have triggered a

CTR in the first place. Section 5324(a)(3) of Title 31 prohibits a person from

structur[ing] or assist[ing] in structuring, or attempt[ing] to structure or assist in

structuring, a transaction (not transactions) with one or more domestic financial

institutions for the purpose of evading 31 U.S.C. 5313(a)’s requirement that a

financial institution report to the government cash transactions exceeding a

particular amount. Lang, 732 F.3d at 1247-48 (emphasis added, quotations

omitted). As the court of appeals recognized in Lang: In order to be ‘for the

purpose of evading’ the reporting requirements, the structured transaction must

involve an amount that is more than $10,000; otherwise, evasion would not be

necessary or possible because there would be no reporting requirement anyway.

Lang, 732 F.3d at 1248 (emphasis added); see id. at 1247 (holding that an

indictment that does not allege a structured transaction involving more than

$10,000 and instead relates multiple transactions without alleging their unifying

link to a CTR-violative amount does not provide the necessary factual allegations).

The Complaint proceeds merely to add conclusorily that a series of smaller

cash deposits appear to have been conducted for the purpose of evading CTR

reporting. Not only is the conclusory term “appear” wholly insufficient, the

absence of any identification of a pool of money from which funds could have

been divided up into smaller deposits renders the conclusory allegation fanciful, in

complete derogation of the instruction of the Eleventh Circuit in Lang. All one can

say about a series of smaller deposits is that they might or might not have come

from a larger pool. But the Complaint makes this claim without even setting forth

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a single deposit date or amount, much less a cluster of them, to even begin to

speculate about a structured transaction. By proceeding in a factually deficient,

entirely conclusory, and Lang-violative manner, the Complaint fails in its claim of

structuring.

C. Proceeds claim. The government relies on a factual basis statement

attached to a plea agreement for Andres Zamora to claim that properties 2–4 were

acquired through drug proceeds. But the factual basis statement incorporated into

the allegations of the Complaint fails to assert, even conclusorily, that any

narcotics trafficking proceeds went toward the acquisition of the properties.1 In

fact, the Complaint blurs the amount of any such proceeds by mixing up sales of

expensive firearms with sales of minor amounts of drugs (which, in the period

from May 2014 to May 2015, purport to add up to just $19,720, hardly enough to

purchase three pieces of real estate). It is unclear from the Complaint what amount

of drug proceeds is at issue at all. Rather, the Complaint alleges two non-drug

sources of income for Claimant Andres Zamora, again leaving the reader to guess

at how much proceeds produced from each of the three sources might or might not

have yielded even any net depositable proceeds. See Complaint ¶ 14. This threecard-Monte form of pleading—asking the reader to speculate that the third card

(the drug card) produced substantial proceeds that went into purchase of

properties—is conclusory and speculative, and fails the test of 21 U.S.C. §

881(a)(6) in any event. Apart from the failure to identify a sufficient amount of

1

 The government adds one more factual allegation: that the Florida Department of

Economic Opportunity does not have records of income for Andres Zamora and two

others. See Complaint ¶ 54. However, the government does not allege that the cited

state department keeps comprehensive records of income for any Florida resident or

citizen; and publicly available information about the department does not indicate any

such comprehensive income tracking.

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drug proceeds at issue, the Complaint fails also to allege that drug proceeds were in

fact used, instead hinting that funds deposited by various persons were drug

proceeds. These vague, conclusory allegations, coming six years after the

government engaged in undercover transactions with Andres Zamora, set forth

only a possibility, without effective tracing as required under § 881(6).

D. Place of sale claim. As to property 1, the Complaint alleges the

property was used to commit a drug trafficking offense because hand-to-hand

transactions allegedly occurred within the property lines. But that mere-location

form of allegation is insufficient to forfeit real estate, particularly where the alleged

trafficker is not an owner of the property and there is no allegation that the

property owners were aware of, much less affirmatively took steps to facilitate, the

drug transactions. Absent such allegations, the mere place-of-occurrence theory on

which the Complaint rests is insufficient. Unlike proceeds tracing cases, where the

burden of bringing forth an innocent-owner defense is placed on the Claimant,

there is no such shifting of the burden as to a property owner, where the property is

sought to be forfeited not on a tracing theory, but rather on the allegation that a

wrongdoer used the property of another to conduct a transaction. Otherwise, the

owner of an office building could find her property forfeited based on the actions

of others where the government has failed to even allege she knew anything about

such improprieties.

2. VIOLATION OF THE STATUTE OF LIMITATIONS.

The government failed to act (failed to file its Complaint and obtain

jurisdiction over the in rem defendants) within five years of the underlying

criminal events. The government’s investigation began and criminal evidence was

claimed by the government as of May 2014, six years before even the filing of the

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Complaint. As to each of the properties on which Complaint purports to assert a

basis for forfeiture and as to each of the four claims (or causes of action), the

Complaint is time barred under the statute of limitations for civil forfeiture actions,

see 19 U.S.C. § 1621 (five or two years), and the criminal statute of limitations, 18

U.S.C. § 3282 (five years). See Toussie v. United States, 397 U.S. 112, 115 (1970)

(criminal limitations statutes are to be liberally interpreted in favor of repose). As

the Supreme Court recently held, in the civil context, statutes of repose provide

certainty of repose in a manner akin to criminal statutes of limitation. California

Pub. Employees’ Ret. Sys. v. ANZ Sec., Inc., 137 S.Ct. 2042, 2049 (2017) (“statutes

of repose are enacted to give more explicit and certain protection to defendants”). 

First, the Complaint acknowledges that properties 2 and 3 were acquired by

the Claimants more than five years before the filing of the Complaint. See

Complaint ¶¶ 61, 63 (61. On or about July 30, 2014, approximately $133,817.22

was withdrawn by wire transfer from Account X9707 and used for the purchase of

Defendant Property 2. ... 63. On or about January 29, 2015, approximately

$112,038.10 was withdrawn by wire transfer from Account X0178 and used for the

purchase of Defendant Property 3.). 

Second, although the Complaint alleges a contribution of funds toward the

purchase of property 4 on May 25, 2015, the issue for purposes of the forfeiture

statute is the government’s knowledge of the actual proceeds, and it is clear that

the Complaint alleges that the proceeds purported to be at issue as to property 4

were proceeds that the government knew of since May 2014. See United States v.

$515,060.42 in U.S. Currency, 152 F.3d 491, 503 (6th Cir. 1998) (“The

Government cannot disregard its discovery of earlier occurring offenses in

preference for later offenses which would produce a more favorable timeline.”). 

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Courts apply a known or should-have-known standard to Section 1621, meaning

that “an offense is discovered when the [g]overnment discovers or possesses the

means to discover the alleged wrong, whichever occurs first.” $515,060.42, 152

F.3d at 502; see also United States v. James Daniel Good Prop. Titled in Name of

James Daniel Good, 971 F.2d 1376, 1381 (9th Cir. 1992).

Third, the government’s allegations of continued use of undercover

transactions even after March 2015 do not serve as a viable basis for forfeiture of

the properties beyond the expiration of the statute of limitations. There is no

precedent for extending the statute of limitations in that manner, where the statute

affords protection of repose based on a combination of occurrence and discovery

factors. The government had both discovered and verified the occurrence of the

critical underlying events prior to April 2015, and at a minimum cannot rely on

prior events as a basis for forfeiture or disclaim knowledge of its own

investigation. The Complaint concedes that the government was aware of the

relevant criminal activity and could have filed charges and sought relevant

proceeds as early as May 2014 to March 2015, at a time outside the limitations

period. The Complaint is time barred in whole or principal part.

3. VIOLATION OF PLEA AGREEMENT TERMS AS TO

FORFEITURE ON WHICH CLAIMANT ANDRES ZAMORA

RELIED IN ENTERING INTO A PLEA AGREEMENT AND

FACTUAL BASIS. 

The plea agreement terms that were presented and explained to Andres

Zamora, in order to obtain his accession to resolution of the criminal prosecution

referred to in paragraph 9 of the Complaint, include assurances given to him that

the government would not pursue forfeiture of property 1. Property 1 was

identified for forfeiture in the criminal indictment, but was specifically removed

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from the plea agreement to reflect the parties’ understanding that it would not be

forfeited. Because he relied on those representations, as related to him by his

attorney in explanation of the express terms of the plea agreement, permitting the

government to pursue forfeiture at this time, years after the fact, would violate the

criminal defendant’s fundamental due process rights, and the government is

estopped to proceed with forfeiture based on the understanding reached with the

Claimant and criminal defense counsel.

4. THE DOCTRINE OF LACHES BARS THE FILING OF THE

COMPLAINT.

To the extent that any part of the civil forfeiture claims in this case is found

to have been asserted just within the statutory limitations period, the doctrine of

laches bars the Complaint. In the intervening period in which the government

waited to pursue forfeiture relief, the central figure and Claimant Andres Zamora

has been incarcerated, has developed cancer requiring surgery from which he is

still receiving treatment at the Federal Medical Center at Butner, North Carolina,

and has been quarantined from in-person contact with any legal adviser or other

person apart from BOP personnel and inmates since mid-March 2020. It is unclear

when the Claimant will be recovered from his surgery or if he will be able to

survive the high rate of COVID-19 infection at the Butner complex. Similarly, it is

unknown when he would be able to return to this District. 

The government has been utilizing the Claimant and persons acting in his

behalf to pursue a corruption and related crimes investigation at FCI Miami. His

cooperation has led to the prosecution and conviction of offenders in federal court

and they are awaiting sentencing. Consistent with his ongoing cooperation, he

dismissed his 28 U.S.C. § 2255 motion which was pending until last year. 

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Throughout all of this time, and his coordination with the government in matters of

risk to himself and his family, as well as debriefings, the government gave no

indication of any anticipated action for which Claimant should need to prepare as

to forfeiture issues going back at least six years. Bank and other records have been

lost in the interim. Funds needed to mount a defense to the forfeiture have been

expended, including on representation to assist in the cooperation requested by the

government. 

The ability to fully defend against and to parse out relevant claims and to

effectively invoke the statute of limitations and other defenses has been unduly

prejudiced by the delay for which the government offered no explanation. At least

since the time of entry of the guilty plea in the criminal case, the government has

been aware that the Claimant is bipolar and has suffered from other severe

conditions affecting his functioning.

Under these circumstances, and as a result of the loss of paperwork and

relevant exhibits and witnesses as to all Claimants due to the inexplicable delay by

the government, the doctrine of laches compels dismissal, and Claimants request

an evidentiary hearing to fully disclose the extent of the prejudice, including

matters arising from the need to fulfill requested cooperation on behalf of the

government. See Smith v. Caterpillar, Inc., 338 F.3d 730, 734 (7th Cir. 2003)

(laches relief warranted where delay affects the substantial rights of the defendant

to such a degree that it justifies the equitable relief of barring the plaintiff's claims).

5. DUE PROCESS VIOLATION.

Filing of the Complaint violates the Due Process Clause because it follows

an agreement reached by the government and the Claimant Andres Zamora

regarding withdrawal of his 28 U.S.C. § 2255 motion, violates implicit agreements

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as to cooperation by the Zamora family in the prosecution of corruption in the

Department of Justice, and represents retaliation for the assertion of constitutional

rights. The government manifested its insistence that Andres Zamora dismiss his §

2255 motion, which had been set for an evidentiary hearing until the § 2255

motion was withdrawn by agreement with the government just two months before

the filing of the Complaint in this case. 

Claimants’ standing as record owners in a civil forfeiture proceeding is

unquestionable. Hence, the government should respond to the motion dismiss in

the ordinary course, within 21 days.

Counsel for the Plaintiff, Assistant United States Attorney Peter Laserna, has

authorized the undersigned to represent that the Plaintiff opposes this motion.

WHEREFORE, Claimants Emilio Garcia, Andres Zamora, Isleidys Zamora,

and Iliana Zamora request that the Court dismiss the Complaint in this case.

Respectfully submitted,

By: /s Richard C. Klugh 

Richard C. Klugh, P.A.

40 N.W. Third Street, PH1

Miami, Florida 33128

Fla. Bar No. 305294

Tel. 305-536-1191

rklugh@klughlaw.com

Attorney for Claimants

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