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STATE OF MICHIGAN 

COURT OF APPEALS 

IN RE FORFEITURE OF $11,377 

CITY OF ALBION and CALHOUN COUNTY 

SHERIFF DEPARTMENT, 

 Plaintiffs-Appellees, 

UNPUBLISHED 

July 14, 2015 

v No. 321641 

Calhoun Circuit Court 

$11,377, GLOCK 23.40 CAL WITH 1 

MAGAZINE, and SONY DCR-TRV 11 DIGITAL 

CAMERA, 

LC No. 2013-000645-FC 

 Defendants, 

and 

BRYE DANIEL ROUNDS, 

 Claimant-Appellant. 

Before: RONAYNE KRAUSE, P.J., and MURPHY and SERVITTO, JJ. 

PER CURIAM. 

 Claimant appeals as of right the trial court’s order granting plaintiffs’ motion to deem 

their second requests for admissions as admitted and granting summary disposition in favor of 

plaintiffs. Claimant further appeals the trial court’s order forfeiting $11,377.00 in U.S. currency, 

a Glock 23.40 caliber handgun, and a Sony DCR-TRV11 digital camera to plaintiffs. We affirm. 

 On November 2, 2012, the Calhoun County Sheriff’s Department attempted to pull over a 

vehicle driven by claimant for a moving violation and for suspected drunk driving. Claimant 

tried to elude the traffic stop and eventually crashed into a tree at the side of the road. Claimant 

was removed from the vehicle and admitted using intoxicants that night before driving. He was 

arrested at the scene. Officers searched claimant’s vehicle and found $9,034.00 in currency 

lying next to a Glock 40 cal handgun. They also found a digital scale and a Sony digital camera 

in the vehicle. Claimant had an additional $2,343.00 on his person. Claimant ultimately pleaded 

guilty to fleeing and eluding. 

 On November 19, 2012, plaintiffs filed a Notice of Seizure and Intent to Forfeit Property 

concerning the currency found in the vehicle and on claimant’s person, the handgun, and the 

digital camera. Claimant replied to the notice and posted bond on December 2, 2012. On March 
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1, 2013, plaintiff’s initiated this forfeiture action, asserting that upon information and belief 

Claimant was manufacturing or delivering a controlled substance and that he did not obtain the 

seized currency through legitimate means. 

 Plaintiffs served their first requests for admission on claimant on March 28, 2013. 

Claimant responded to the same on April 24, 2013, asserting his 5th amendment right against self 

incrimination in response to the vast majority. Thereafter, claimant’s counsel withdrew. On 

August 9, 2013, claimant was sentenced for fleeing from the police and sentenced to a jail term 

stemming from the November 2, 2012, incident. Plaintiffs served a second request for 

admissions upon claimant on August 21, 2013, while he was serving his jail sentence. On 

September 12, 2013, plaintiffs moved to have their first requests for admissions deemed admitted 

due to claimant’s failure to supplement his responses to the same once his criminal charges were 

resolved and he no longer had a 5th Amendment concern. Plaintiffs concurrently filed a motion 

for summary disposition pursuant to MCR 2.116(C)(10), asserting that claimant failed to answer 

their second requests for admissions such that they are deemed admitted. Plaintiffs argued that 

because the admissions were that the property seized was proceeds obtained from illegal drug 

trafficking or property purchased with proceeds from illegal drug trafficking, there was no 

genuine issue of material fact as to the allegations in plaintiffs’ complaint. 

 The trial court provided claimant with a period of time in which to respond to plaintiffs’ 

second requests for admissions, ordering that if no response was made within the provided 

timeframe, plaintiffs’ motions for summary disposition and to deem admitted would be granted. 

Although Claimant provided the ordered responses in a timely manner, the trial court granted 

plaintiffs’ motion for summary disposition as to liability as well as their motion to deem 

admitted. The trial court scheduled a hearing to allow claimant to prove a legitimate source for 

the seized funds. Claimant failed to do so, resulting in the trial court entering an order of 

forfeiture on February 12, 2014. 

 On appeal, claimant first contends that plaintiffs did not timely initiate forfeiture 

proceedings as required by statute. According to claimant, the forfeiture proceedings are thus 

negated. We disagree. 

 We review issues of statutory construction de novo. City of Riverview v Sibley 

Limestone, 270 Mich App 627, 636; 716 NW2d 615 (2006). Plaintiffs seized the property at 

issue pursuant to MCL 333.7522 which provides: 

Property that is subject to forfeiture under this article or pursuant to section 7521 

may be seized upon process issued by the circuit court having jurisdiction over 

the property. Seizure without process may be made under any of the following 

circumstances: 

(a) Incident to a lawful arrest, pursuant to a search warrant, or pursuant to an 

inspection under an administrative inspection warrant. 

(b) The property is the subject of a prior judgment in favor of this state in an 

injunction or forfeiture proceeding under this article or pursuant to section 

17766a. 
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(c) There is probable cause to believe that the property is directly or indirectly 

dangerous to health or safety. 

(d) There is probable cause to believe that the property was used or is intended to 

be used in violation of this article or section 17766a. 

Because the property was seized pursuant to MCL 333.7522, “forfeiture proceedings shall be 

instituted promptly.” MCL 333.7523(1). The forfeiture proceedings require the state to notify 

the owner of the property that the property has been seized (MCL 333.7523(1)(a)) and require 

the seizing agency to notify the prosecuting attorney or attorney general of the seizure of the 

property and the intent to forfeit the property unless all criminal proceedings relating to the 

property have been completed (MCL 333.7523(1)(b)). Additionally, any person claiming an 

interest in the seized property may, within 20 days after receipt of the notice file a written claim 

expressing his or her interest in the property and posting a bond in the amount of 10% of the 

value of the claimed property. MCL 333.7523(c). The claim and bond are thereafter submitted 

to: 

the attorney general, the prosecuting attorney for the county, or the city or 

township attorney for the local unit of government in which the seizure was made. 

The attorney general, the prosecuting attorney, or the city or township attorney 

shall promptly institute forfeiture proceedings after the expiration of the 20-day 

period. However, unless all criminal proceedings involving or relating to the 

property have been completed, a city or township attorney shall not institute 

forfeiture proceedings without the consent of the prosecuting attorney or, if the 

attorney general is actively handling a case involving or relating to the property, 

the attorney general. [MCL 333.7523(c)] 

In determining whether a forfeiture proceeding was instituted promptly, this Court must consider 

“ ‘the lapse of time between seizure and filing of the complaint, the reason for the delay, the 

resulting prejudice to the defendant and the nature of the property seized.’ ” In re Forfeiture of 

One 1983 Cadillac, 176 Mich App 277, 280–281; 439 NW2d 346 (1989), quoting Dep't of 

Natural Resources v Parish, 71 Mich App 745, 750; 249 NW2d 163 (1976). 

 In this case, claimant’s property was seized on November 2, 2012, he was served with a 

notice of seizure and intent to forfeit property on November 19, 2012, and he posted a bond for 

the seized property on or about December 7, 2012. Pursuant to MCL 333.7523(c), 20 days after 

claimant was served with the notice of forfeiture, “[t]he attorney general, the prosecuting 

attorney, or the city or township attorney shall promptly institute forfeiture proceedings.” That 

requirement is not without exception, given that MCL 333.7523(c), goes on to state that, 

“[h]owever, unless all criminal proceedings involving or relating to the property have been 

completed, a city or township attorney shall not institute forfeiture proceedings without the 

consent of the prosecuting attorney . . . .” It is undisputed that forfeiture proceedings were 

initiated with respect to claimant’s property on March 1, 2013. At that time, criminal 

proceedings involving or relating to the property had not yet been resolved. 
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 Plaintiffs assert that the prosecuting attorney did not authorize forfeiture proceedings 

until February 28, 2013, and that because they initiated forfeiture proceedings the next day, the 

proceedings were timely. Claimant has not argued or presented evidence concerning an alternate 

authorization date by the prosecuting attorney, and there is no requirement in the statute that the 

prosecuting attorney authorize forfeiture proceedings within a specified time frame. Because the 

statute indicates that forfeiture proceedings are to be initiated 20 days after a claimant is served 

with a notice of forfeiture but contains an additional qualifier applicable to situations, such as 

here, wherein criminal proceedings “involving or relating to the property” have not yet been 

resolved, the Legislature clearly contemplated that forfeiture proceedings would at times be 

brought more than 20 days after a claimant had been served. 

 Applying the factors set forth in In re Forfeiture of One 1983 Cadillac, 176 Mich App at 

280–281, we are satisfied that the forfeiture proceedings were initiated in a timely manner. First, 

we acknowledge that the lapse of time between seizure and filing of the complaint was 

approximately four months-the same amount of time as was found to be too long in In re 

Forfeiture of One 1983 Cadillac, 176 Mich App 277. However, that Court also declined to 

adopt a bright line test with respect to this factor, stating “[e]ach case will present its own unique 

facts.” Id. at 281-282. We do not find four months to be per se unreasonable. This factor 

weighs in favor of neither party. 

 Next, the reason for the delay was the lack of authority from the prosecuting attorney, 

without which plaintiffs could not, according to MCL 333.7523(c), initiate the forfeiture 

proceedings. Thus, the reason for delay was beyond the control of plaintiffs. There is no 

indication that the prosecutor in this case, unlike the prosecutor in In re Forfeiture of One 1983 

Cadillac, 176 Mich App 277, was searching for further assets of claimants against which to bring 

forfeiture proceedings, which would have no bearing on whether forfeiture proceedings could be 

brought with respect to the already seized items. As stated in Michigan Dept of Natural Res v 

Parish, 71 Mich App 745 at 751: 

Closely related to length of delay is the reason the government assigns to justify 

the delay. Here, too, different weights should be assigned to different reasons. A 

deliberate attempt to delay the trial in order to hamper the defense should be 

weighted heavily against the government. A more neutral reason such as 

negligence or overcrowded courts should be weighted less heavily but 

nevertheless should be considered since the ultimate responsibility for such 

circumstances must rest with the government rather than with the defendant. 

Finally, a valid reason, such as a missing witness, should serve to justify 

appropriate delay. [quoting Barker v Wingo, 407 US 514, 531; 92 S Ct 2182; 33 

L Ed 2d 101 (1972)]. 

The record before us does not disclose the circumstances underlying the delay by the prosecuting 

attorney in granting authority to proceed. Whatever the reason, the fact remains that there is no 

indication that plaintiffs were engaged in a deliberate attempt to hamper the defense or that the 

delay was within the control of plaintiffs. Rather they could not, pursuant to statute, initiate 

forfeiture proceedings absent such authority. This factor thus weighs in favor of plaintiffs. 
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 The third factor is the resulting prejudice to the claimant. In re Forfeiture of One 1983 

Cadillac, 176 Mich App at 280-281. Claimant asserts prejudice in that the seized money 

constituted his life savings and prevented him from properly compensating his counsel in the 

criminal proceedings against him, which in turn caused counsel to withdraw and forced him to 

proceed pro per. However, claimant has not claimed or established that he attempted to procure 

alternate counsel and was unable, or that the results of the proceeding would have been different 

but for the withdrawal of his prior counsel. Moreover, claimant asserted that he was transporting 

the cash to a home to keep there. The cash, unlike a vehicle or other such asset, did not 

depreciate in value during its seizure and claimant did not have to make payments on the cash 

during its seizure. Cf. Michigan Dept of Natural Res v Parish, 71 Mich App at 752; In re 

Forfeiture of One 1983 Cadillac, 176 Mich App at 282. This factor weighs in favor of plaintiffs. 

 The final factor is the nature of the property seized. In re Forfeiture of One 1983 

Cadillac, 176 Mich App at 280-281. Further explaining this factor, a panel of this Court 

commented: 

Not only may the nature of the property bear directly upon the resulting prejudice 

to the defendants, it may also reflect the importance of the government's interest 

in the property. If property is seized as the instrumentality of a crime, the 

property may itself be inherently harmless, such as an automobile or boat. If so, 

the government's interest in seizure is primarily to punish the property owner for 

allowing his goods to be so employed. Alternatively, the property may be 

contraband, that is, illegal to possess, such as certain types of weapons or drugs. 

In such a case, the government's interest is to protect society from the harmful 

effects of the goods. This, we feel is the superior motive and justifies greater 

indulgence of delay on the part of the government. The property seized in the 

instant case, boats and nets, clearly is within the former category and this should 

weigh in the defendants' favor in the trial court's consideration. [Michigan Dept of 

Natural Res v Parish, 71 Mich App at 753-54]. 

Again, the property seized in this matter was a relatively large amount of cash, a handgun, and 

digital camera. The properties are not contraband1

 and are thus instrumentalities of the crime. 

This factor weighs in favor of claimant. 

 Taking the facts of the case as a whole, and considering that only one of the four factors 

set forth in In re Forfeiture of One 1983 Cadillac, 176 Mich App 277 weigh in claimant’s favor, 

we find that plaintiffs initiated forfeiture proceedings in a timely manner. 

 Claimant next contends that plaintiffs’ second request for admissions should not have 

been deemed admitted for two reasons. First, according to claimant, the questions in the request 

are materially misleading as many of the questions are exact replicates of other questions. 

Second, claimant asserts that his answers were, when taken in context, responsive to the 

questions asked constituted denials of the requests to admit. 

 

1

 It is unclear to this Court whether the handgun was registered to claimant. 
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 We review a trial court's decision to deem admitted untimely answers to a request for 

admissions for an abuse of discretion. Medbury v Walsh, 190 Mich App 554, 556-557; 476 

NW2d 470 (1991). “The admissions resulting from a failure to answer a request for admissions 

may form the basis for summary disposition.” Id. This does not mean, however, that the failure 

to properly answer the requests for admissions requires the trial judge to automatically enter 

summary judgment--even if the admissions cover the entire suit. Janczyk v Davis, 125 Mich 

App 683, 691; 125 NW2d 272 (1983). “The trial judge has the discretion to allow the party to 

file late answers or even to amend or withdraw the answers.” Id.; see also MCR 2.312(D)(1). 

We review de novo the trial court's grant or denial of summary disposition to determine whether 

the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 

118; 597 NW2d 817 (1999). 

 Plaintiffs initially served their Second Request for Admissions on claimant (who was 

acting in pro per) while he was an inmate at the Calhoun County jail in August 2013. When he 

failed to respond, the trial court allowed claimant until November 8, 2013, to provide responses 

to plaintiffs and the trial court. Claimant submitted handwritten responses, while he was still 

incarcerated and acting in pro per, to plaintiffs (but not the trial court) on or around October 25, 

2013. Plaintiffs thereafter moved to have their Second Request for Admissions deemed as 

admitted based on their assertion that claimant’s responses to certain requests did not meet the 

substance of the requests and, when the responses were deemed admitted, summary disposition 

would be appropriate in plaintiffs’ favor. 

 Plaintiffs specifically took issue with claimant’s responses to Second Requests for 

Admissions 3. and 5. Request for Admission 3. requested that claimant admit “[t]hat the 

$11,377.00 in U.S. Currency in this matter was used or intended to be used to facilitate a 

violation of the Michigan Controlled Substances Act.” Claimant responded as follows: 

3. Currency was my life savings over a period of 7 years. Majority of the bills 

was very molded to the point it was undesirable to handle. The currency that 

wasn’t was mostly from the casinos redemption kiosk machine. 

3.a. I can provide documents of large amounts of currency being received to me 

in the past. Due to being incarcerated I cannot with request for admissions. 

It is true that the above is not responsive to the question posed. However, as pointed out by 

claimant, Request 3. is very similar to Request 1., which asks claimant to admit “[t]hat the 

$11,377.00 in U.S. Currency in this matter was furnished or intended to be furnished in exchange 

for a controlled substance.” Claimant’s response to Request 1. was: 

1. The U.S. Currency of $11,377 was never from or to be used for a controlled 

substance. It was needed to be furnished for a[] log splitter and for a tractor 

and/or intended as common everyday purchases and bills. 

1.a. Documents were sent of my bills in previous request of [sic] admissions. 

Given claimant’s unequivocal denial in response to Request 1. “That the money was from or to 

be used for a controlled substance.” and his explanation of what the money was to be used for, 

coupled with his response in 3., it would be illogical to deem claimant’s response to Request 3. 
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as an admission that the monies were “used or intended to be used to facilitate a violation of the 

Michigan Controlled Substances Act.” 

 Request for Admission 5. requested that claimant admit “[t]hat the $11,377.00 in U.S. 

Currency in this matter is traceable to an exchange for a controlled substance.” Claimant’s 

response was: 

5. The currency was placed in vehicle in a secure location that day of arrest was 

being transported from my home to a safe place at my girlfriends. The only place 

I stopped at was at the Fire Keeper’s Casino. 

This response, while not artfully worded, and while not containing the word “denied” does 

purport to deny that the money was traceable to an exchange for a controlled substance. 

Claimant indicates that he was transporting the money from one location to another. And, again, 

in response to Request 1. claimant had stated that the money “was never from or to be used for a 

controlled substance.” Claimant’s responses to plaintiffs’ requests for admissions, as a whole, 

denied that the money was not from or to be used for controlled substances. 

 Regardless of whether the responses were deemed inadequate, the trial court did not 

appear to base its decision on claimant’s alleged failure to properly respond to the requests for 

admission or find that the lack of proper responses rendered the requests as admitted. At the 

December 2, 2013, hearing on plaintiffs’ motion to deem admitted and for summary disposition, 

the trial court stated that claimant’s answers concerning the money did not “comply with what 

the police found.” The trial court’s also stated that claimant’s answers to plaintiffs’ requests for 

admissions did not comport with the “pretty strong circumstantial evidence” and that the 

allegations contained in the complaint seemed “far more realistic and far more truthful than what 

your written admissions are.” No witnesses testified at the hearing. The trial court found in 

plaintiffs’ favor as to liability but gave claimant an opportunity “to prove the contrary,” stating 

that there would be a hearing as to the amount of the damages and instructed claimant that he 

“better have all [his] proofs.” The trial court thus based its decision as to liability upon its view 

that plaintiffs’ theory was more believable than claimant’s. This leads, in turn, to claimant’s 

final issue on appeal. 

 Claimant asserts that plaintiffs failed to prove by a preponderance of the evidence that the 

seized property was subject to forfeiture. Forfeiture proceedings are “in rem civil proceedings 

and the government has the burden of proving its case by a preponderance of the evidence.” In 

re Forfeiture of $15,232, 183 Mich App 833, 836; 455 NW2d 428 (1990). The findings of fact 

of a trial court will not be set aside on appeal unless we find that they are clearly erroneous. In 

re Forfeiture of $5,264, 432 Mich 242, 260; 439 NW2d 246 (1989). A finding is clearly

erroneous when “although there is evidence to support it, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 

260 (quoting Smith v Michigan State Accident Fund, 403 Mich 201, 204; 267 NW2d 909 

(1978)). 

 According to MCL 333.7521(1)(f), the following property is subject to forfeiture: 
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Anything of value that is furnished or intended to be furnished in exchange for a 

controlled substance, an imitation controlled substance, or other drug in violation 

of this article that is traceable to an exchange for a controlled substance, an 

imitation controlled substance, or other drug in violation of this article or that is 

used or intended to be used to facilitate any violation of this article including, but 

not limited to, money, negotiable instruments, or securities. To the extent of the 

interest of an owner, a thing of value is not subject to forfeiture under this 

subdivision by reason of any act or omission that is established by the owner of 

the item to have been committed or omitted without the owner's knowledge or 

consent. Any money that is found in close proximity to any property that is 

subject to forfeiture under subdivision (a), (b), (c), (d), or (e) is presumed to be 

subject to forfeiture under this subdivision. This presumption may be rebutted by 

clear and convincing evidence. 

“The statute requires a substantial connection between the property and the criminal activity.” In 

re Forfeiture of 301 Cass Street, 194 Mich App 381, 384; 487 NW2d 795 (1992). Although a 

connection to a specific drug sale need not be shown, the assets must be traceable to drug 

trafficking. In re Forfeiture of $1,159,420, 194 Mich App 134, 146; 486 NW2d 326 (1992). “In 

contrast, property that has only an incidental or fortuitous connection to the unlawful activity is 

not subject to forfeiture.” Id.

 In the present case, the property at issue was not found in proximity to a controlled 

substance per se. The evidence potentially linking the property and controlled substances 

appears in two forms. First, plaintiffs presented an affidavit of Deputy Brent Lincoln stating that 

the property was found in claimant’s vehicle along with a digital scale that had apparent residue 

on it, which he believed to be a controlled substance. It is undisputed that no test was performed 

to confirm Deputy Lincoln’s belief. In his responses to plaintiffs’ second request for admissions, 

claimant, on the other hand, indicated that the scale was a kitchen table top scale and that he used 

the scale in the process and preparation of venison jerky. Claimant stated that he processed his 

own deer and weighed meat, spices, vegetables, smoked fish and curing compounds on the scale, 

among other things. When given an opportunity to present any documentation, witnesses, or 

other evidence to support his assertions at a February 3, 2014, hearing, claimant failed to do so. 

 Second, several months after the property had been seized, a K9 alerted on the currency 

seized from claimant. However, the presumption of forfeiture does not “apply to the money [] 

merely because it bears an odor of a controlled substance and could have been in close proximity 

to a controlled substance at some point in time.” In re Forfeiture of $18,000, 189 Mich App 1, 4; 

471 NW2d 628 (1991). The United States Court of Appeals for the Eighth Circuit has declared, 

“[I]t is well-established that an extremely high percentage of all cash in circulation in America 

today is contaminated with drug-residue . . . contamination, alone, is virtually meaningless and 

gives no hint of when or how the cash became so contaminated.” Muhammed v Drug 

Enforcement Agency, Asset Forfeiture Unit, 92 F3d 648, 653 (CA 8 1996). The Sixth Circuit has 

also held that a dog's positive alert to the presence of cocaine odor on currency is “insufficiently 

indicative of probable cause.” United States v $5000.00 in United States Currency, 40 F3d 846, 

850 (CA 6, 1994). The alert of the K9 on money held by the police for many months is thus of 

little value. 
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 Plaintiffs assert that under MCL 333.7521(f), any money found in close proximity to any 

property that is subject to forfeiture under subdivision (a), (b), (c), (d), or (e) is presumed to be 

subject to forfeiture and that the money was found in close proximity to the digital scale, with 

suspected controlled substance residue on it. According to plaintiffs, the digital scale is subject 

to forfeiture under subdivision (b) thus raising the presumption that the money was forfeitable. 

Property subject to forfeiture under MCL 333.7521(1)(b) includes equipment of any kind that is 

used or intended for use in “manufacturing, compounding, processing, delivering, importing, or 

exporting a controlled substance.” A digital scale can, indeed, be deemed used or intended for 

use in connection with controlled substances. 

 In forfeiture proceedings, the government has the burden of proving its case by a 

preponderance of the evidence. In re Forfeiture of $15,232, 183 Mich App at 836. 

“Preponderance of evidence” means, “such evidence as, when weighed with that opposed to it, 

has more convincing force, and from which it results that the greater probability is in favor of the 

party upon whom the burden rests.” Jones v E Michigan Motorbuses, 287 Mich 619, 642; 283 

NW 710 (1939). In this case, potentially admissible evidence demonstrated that claimant fled 

from the police when they attempted to pull him over for suspected drunk driving, that a scale 

containing what a deputy swore he believed to be a controlled substance, a handgun, a digital 

camera, and over $11,000 in cash were found in claimant’s vehicle, and that a police dog alerted 

to the scent of narcotics on money seized from claimant’s vehicle months after it was seized. 

Additional evidence presented by plaintiffs included a statement from the Fire Keeper’s Casino 

that claimant had not used his player’s card there in over a month and that no payout had been 

made to claimant on the night in question, despite claimant’s claim that he had won several 

hundred dollars at that casino on the night of his arrest. 

 We conclude that there was enough of a nexus established between illegal activity and 

the money to support the forfeiture order for the cash. When given the opportunity to present 

any admissible evidence on his own behalf, claimant failed to do so. Thus, there was no 

admissible evidence to oppose claimant’s evidence, scant as it may be. The same holds true for 

the gun and the camera. 

 Affirmed. 

/s/ Amy Ronayne Krause 

/s/ William B. Murphy 

/s/ Deborah A. Servitto