NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 23, 2014
Decided January 8, 2015
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 12‐2080
UNITED STATES OF AMERICA,
Plaintiff‐Appellee, Appeal from the United States District
Court for the Northern District of Illinois,
v. Eastern Division.
FUNDS IN THE AMOUNT OF No. 11 CV 7176
$495,744,
Defendant in Rem, Sharon Johnson Coleman,
Judge.
ABDEL RAHMEN ALSHARFA,
Claimant‐Appellant.
O R D E R
Law enforcement officials seized $495,744 from a rented car Abdel Alsharfa was
driving. Maintaining that the cash was derived from proceeds of illegal activity, the
government instituted civil forfeiture proceedings, and Alsharfa filed a claim to the
money. After the government served interrogatories and other discovery requests upon
No. 12‐2080 Page 2
him, he asserted the Fifth Amendment and filed a motion to stay the proceedings. We
affirm the district court’s denial of his stay request because there is no indication that
Alsharfa was the subject of a related criminal investigation or case at the time he
requested the stay of the civil forfeiture proceedings.
I. BACKGROUND
Abdel Alsharfa was driving through Illinois on September 1, 2011 when he was
pulled over by an Illinois State Trooper. While the trooper spoke with Alsharfa and his
passenger Tristan Thomas‐Elcock, the trooper smelled the strong scent of air freshener
and saw multiple cell phones in the car’s center console. Alsharfa told the trooper that
the car had been rented and handed him the rental agreement. After receiving
identification from both Alsharfa and Thomas‐Elcock, the trooper requested that
Alsharfa join him in his patrol vehicle. There the trooper saw that Alsharfa’s eyes were
bloodshot and glassy. The trooper reviewed the car rental agreement and noted that it
was a short‐term, one‐way rental from Boston to Las Vegas at a cost of $966.69. In
response to additional questions, Alsharfa said that he and Thomas‐Elcock had not
arranged for a place to stay in Las Vegas, that he was a student, and that Thomas‐Elcock
was a welder who did not currently have a job.
Suspecting that the two were engaged in unlawful activity, the trooper asked
Alsharfa whether there were any weapons or illegal drugs in the car. Alsharfa said “no.”
When the trooper asked Alsharfa for consent to search the vehicle, Alsharfa responded,
“I don’t know about that.” The trooper then left his patrol vehicle and spoke with
Thomas‐Elcock, in whose name the vehicle had been rented. Thomas‐Elcock declined to
give consent to search the car. The trooper asked Alsharfa if he was willing to wait for a
police canine to conduct an exterior sniff of the car, and Alsharfa responded, “No
problem.” The dog arrived and positively alerted for narcotics, so law enforcement
officials searched the car. They found a total of $495,744 in cash inside a storage
compartment in the front passenger side of the car and in suitcases in the trunk. That
cash was seized for forfeiture, and Alsharfa and Thomas‐Elcock were arrested.
Despite their arrest, Alsharfa and Thomas‐Elcock were released the same day
without charges, though law enforcement officials did not give them the seized cash
upon release. A Grundy County, Illinois Sheriff’s Office Incident/Investigation Report
prepared about the stop states that both were released after arrest and that the case was
“closed/cleared” that same day and that five days later, the case was “referred to other
No. 12‐2080 Page 3
agency.” No charges have ever been filed against Alsharfa and Thomas‐Elcock in
connection with the events of September 1, 2011.
On October 11, 2011, the United States filed a complaint of forfeiture in rem alleging
that the $495,744 in funds are forfeitable to the United States as monies used or intended
to be used in exchange for a drug transaction, in violation of 21 U.S.C. §§ 841, et seq., and
as property which constituted or was derived from proceeds traceable to specified
unlawful activity, as defined in 18 U.S.C. § 1956(c)(7). The district court issued a warrant
of arrest in rem against the funds.
Alsharfa filed a claim to the funds. He asserted as the basis of the claim: “My interest
in the property is possessory and a bailee.” In his answer to the United States’s
complaint of forfeiture in rem, Alsharfa made various admissions, including that he was
driving the car on September 1, that he gave the trooper the car rental agreement for a
one‐way rental from Boston to Las Vegas for three days at a cost of $966.69, that he
provided the rental agreement to the trooper, that he did not consent to a search of the
car, and that all the contents within the car were his. The government then sought
discovery from Alsharfa. It served him with special interrogatories under Federal Rule
of Civil Procedure Supplemental Rule G(6) to obtain information about his relationship
to the money, including the identity of the bailor, the nature of his relationship with the
bailor, the terms of the bailment, and his knowledge about the source of the cash. The
government also sought discovery through general interrogatories, requests for
production, and a request for admission. Alsharfa’s responses included that he was “in a
bailment relationship” with Thomas‐Elcock, that the nature of their relationship is
“personal friendship and business associate,” and that he had no knowledge of the
source of the $495,744 in cash.
On February 1, 2012, Alsharfa asserted the Fifth Amendment to most of the
government’s outstanding discovery requests and also asked for a stay of proceedings
pursuant to 18 U.S.C. § 981(g)(2). In particular, Alsharfa asked for a stay of the civil
forfeiture proceedings until the United States advised the court and Alsharfa “that any
state/federal investigation is concluded or that [Alsharfa] is no longer a target of same in
order to fully protect [Alsharfa]’s right against self‐incrimination.” The government
requested that the court deny the stay and asserted that Alsharfa was not the subject of a
related criminal investigation or case. The district court held a hearing at which the
government again asserted that there was no pending investigation into Alsharfa
regarding anything related to the events of September 1, 2011. The district court denied
Alsharfa’s motion to stay proceedings upon concluding that he did not meet the
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requirements for a stay under 18 U.S.C. § 981(g)(2), finding in particular that he lacked
standing and that he was not the subject of a related criminal investigation or case within
the meaning of the statute. Alsharfa appeals.
II. ANALYSIS
Alsharfa appeals the denial of his request for a stay of the civil forfeiture proceedings.
We generally review decisions regarding stays for an abuse of discretion. See Neal v.
LaRiva, 765 F.3d 788, 790 (7th Cir. 2014); Tyrer v. City of South Beloit, 516 F.3d 659, 666 (7th
Cir. 2008).
The government maintains the stay denial should stand, arguing first that we lack
jurisdiction over this appeal. The district court’s order denying Alsharfa’s requested stay
is not a final order, and the government contends the order is not proper for
interlocutory review. Alsharfa contends we have jurisdiction to review the denial under
the collateral order doctrine or other vehicles for interlocutory review. We need not
resolve this jurisdictional dispute since the district court committed no error when it
denied Alsharfa’s stay request.
Pursuant to 18 U.S.C. § 981(g)(2), a district court shall stay a civil forfeiture
proceeding upon a claimant’s motion if the court determines that:
(A) the claimant is the subject of a related criminal investigation or case;
(B) the claimant has standing to assert a claim in the civil forfeiture
proceeding; and
(C) continuation of the forfeiture proceeding will burden the right of the
claimant against self‐incrimination in the related investigation or
case.
See also United States v. Funds in the Amount of $574,840, 719 F.3d 648, 650 (7th Cir. 2013).
As the moving party, a party seeking a stay usually has the burden of proof. See United
States v. Approximately 81,454 Cans of Baby Formula, 560 F.3d 638, 641 (7th Cir. 2009).
The district court did not err when it concluded that Alsharfa failed to show he was
the subject of a related criminal investigation or case, and, therefore that he also failed to
show that continuing the civil forfeiture proceeding would burden his right against
self‐incrimination in a related investigation or case. As the terms are used in 18 U.S.C. §
981(g)(2), “related criminal case” and “related criminal investigation” “mean an actual
No. 12‐2080 Page 5
prosecution or investigation in progress at the time at which the request for the stay, or
any subsequent motion to lift the stay is made.” 18 U.S.C. § 981(g)(4). The statute further
provides that “[i]n determining whether a criminal case or investigation is ‘related’ to a
civil forfeiture proceeding, the court shall consider the degree of similarity between the
parties, witnesses, facts, and circumstances involved in the two proceedings, without
requiring an identity with respect to any one or more factors.” Id.
There is no evidence in the record of any related criminal case or related criminal
investigation. In an attempt to show otherwise, Alsharfa points to the
Incident/Investigation Report concerning the September 1, 2011 traffic stop. That report
does not help him, however, as it states that his case is “closed/cleared.” While the
notation on the report statement that the matter was “referred to other agency” on
September 6, 2011 might suggest that another agency conducted a criminal
investigation, all the evidence in the record is to the contrary. An IRS special agent’s
“Memorandum of Conversation” presented to the district court detailed the agent’s
conversations with a Grundy County Assistant State’s Attorney, who confirmed that the
Grundy County State’s Attorney’s Office had no open criminal investigation into
Alsharfa or Thomas‐Elcock, no plan to open such an investigation, and no plan to pursue
the prosecution of either. The Assistant United States Attorney repeated this information
to the district court at the hearing, asserting:
… there are no criminal charges. There is no criminal investigation
pending in this office …. The IRS‐CI does not have a pending criminal
investigation. There is no criminal investigation pending in this office.…
We’ve checked with the Grundy County State’s Attorney’s office, and
they’ve said there’s no criminal case. The Illinois State Police have turned
the entire case over to IRS agents who are pursuing forfeiture.… Yes, we
believe the money is connected to criminal activity, but there simply is no
criminal investigation pending.
Alsharfa did not give the district court any sound reason to conclude otherwise. The
only investigation or proceedings after September 6, 2011 suggested in the record
concern civil forfeiture.
At oral argument before us, Alsharfa suggested for the first time that a case pending
in the United States District Court for the District of Massachusetts might be a related
criminal case. That case, United States v. Asarao, et al., No. 12 CR 10196 (D. Mass.), is a
multi‐defendant case where Bassam Alsharfa, Abdel Alsharfa’s brother, is one of the
No. 12‐2080 Page 6
defendants. The criminal complaint was filed in May 2012 and the indictment in June
2012. Bassam Alsharfa is charged with money laundering from about October 2010 until
December 15, 2011 in Massachusetts, Canada, and elsewhere.
There is nothing about the Massachusetts case to which Abdel Alsharfa points us, or
which we have seen, that indicates he was under investigation in Massachusetts or
involved in any way. His counsel stated at oral argument that the Massachusetts case
began as a DEA investigation and wiretap about a month after Abdel Alsharfa was
stopped on September 1, 2011. While that may be true, there is nothing to which he
points in the Massachusetts case that suggests any similarity between the parties,
witnesses, facts, or circumstances between that case and the circumstances surrounding
the September 1, 2011 stop. Also of note is the statute’s requirement that to be a “related”
criminal investigation or case there must have been an “actual prosecution or
investigation in progress at the time at which the request for the stay … is made.” 18 U.S.C. §
981(g)(4) (emphasis added). Abdel Alsharfa moved for a stay on February 1, 2012 (and
filed his notice of appeal on May 1, 2012), and there is no indication that he was the
subject of any criminal prosecution or investigation at the time, so any concern he has
about being implicated in the future is not sufficient to obtain a stay under the statute.
Finally, we note that he did not raise the issue of the Massachusetts case with the
government when he became aware of it; the government learned of that case for the
first time at oral argument.
III. CONCLUSION
The judgment of the district court is AFFIRMED.