IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BETHANY COLLEGE,
Plaintiff,
v.

Civil Action No. 5:14CV139
(STAMP)

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This case arose from the collision of “sexting,”1 extortion,
embezzlement, drugs, and most importantly, the administrative
forfeiture of illicit funds under 21 U.S.C. § 881 and 19 U.S.C.
§§ 1602-1619.

In the aftermath, Bethany College (“Bethany”) found

that one of its employee’s had stolen over $800,000.00 to pay
extortionists.

In an unrelated drug investigation, the Drug

Enforcement Administration (“DEA”) seized from those extortionists
$262,020.00, which it administratively forfeited.

Bethany now

seeks to vacate that forfeiture, under 18 U.S.C. § 983(e), arguing
that the Currency was part of the funds embezzled by its employee
to pay the extortionists, and thus belongs to Bethany.
government filed a motion for summary judgment.

1

The

For the following

Sexting is “the sending of sexually explicit photos, images,
text messages, or e-mails by using a cell phone or other mobile
device.”
Sexting ,
Dictionary.com,
http://dictionary.reference.com/browse/sexting (last visited Nov.
16, 2015).

 reasons,

this

Court

grants

in

part

and

denies

in

part

the

government’s motion for summary judgment.
I.
A.

Background

The Embezzlement and Extortion Schemes
Shelly Lough (“Lough”) was a cashier in the business office of

Bethany College.

In July 2011, Lough and Jason Weese began a

“sexting” relationship, involving in the exchange of sexually
explicit text messages and photos.

ECF No. 23 Ex. 1 at 13.

December, the relationship took a turn.

Id. at 57.

That

Jason and his

wife, Rachaelle, began threatening Lough with the exposure of her
explicit messages and photos unless she paid them.
239.

Id. at 13, 15,

They told Lough that they would send the messages and photos

to her husband, family, employer, and other authorities.
13, 239.

Then the threats became violent.

Id. at 57.

Id. at

The Weeses

told Lough that they knew where she lived and what vehicles her
children drove.

Id.

The Weeses threatened to burn Lough’s house

down and to harm her husband.

Id.

As the

threats escalated, so

too did the amount of money the Weeses demanded.

Id. at 57-58.

In

total, Lough embezzled $837,398.52 from Bethany to pay the Weeses.
Id. at 110, 182.
The
continued.

Weeses’

extortion

scheme

and

Lough’s

embezzlement

Then, in August 2013, Bethany noticed accounting

discrepancies amounting to $500,000.00.

Id. at 13.

Bethany

interviewed Lough, and she admitted that she had embezzled money

2

 and that she paid all of it to the Weeses.

Id. at 218, 222.

Bethany reported the embezzlement to the police and conducted an
in-depth audit, finding that over $800,000.00 was missing.

Id. at

218. After investigating the matter, the police interviewed Lough,
and she confessed, telling the police that she did it to pay the
Weeses’ extortionate demands.

Id. at 226.

The police turned over

to the Federal Bureau of Investigation the extortion portion of the
investigation.

Id. at 241.
Id. at 6-

In March 2014, Lough plead guilty to embezzlement.
9.

That June, Jason Weese plead guilty to conspiracy to commit

extortion and aiding and abetting money laundering, id. at 31-37,
and

Rachaelle

extortion.
B.

Weese

pleaded

guilty

to

conspiracy

to

commit

Id. at 114-120.

The Drug Investigation
Before the Weeses’ extortion scheme was uncovered, the DEA

began investigating Jason and Rachaelle Weese in October 2012. ECF
No. 22 Ex. 2 at 1-2.

The DEA suspected that the Weeses were

operating a marijuana “grow house” in their residence in East
Liverpool, Ohio.

Id. at 3-4.

Officers obtained a search warrant

for the house and executed the search on March 19, 2013.

Id.

The

officers did not find a grow operation, but did find marijuana
distribution paraphernalia.

Id. at 4, 13; ECF No. 23 Ex. 1 at 228.

The officers also searched the Weeses’ safe, finding 169 grams of
marijuana

and

$262,020.00

in

United

3

States

currency

(“the

 Currency”).

ECF No. 22 Ex. 2 at 4, 13.

The officers seized the

Currency and determined that it was the proceeds of the Weeses’
drug activities.
C.

Id. at 5.

The Forfeited Currency
WesBanco supplied Bethany’s money, which came in stacks of

$50.00 bills wrapped in WesBanco bands that were initialed and
dated by the bank teller who packaged them.
58.

ECF No. 23 Ex. 1 at

Lough had access to those and smaller bills.

Rachaelle

testified in her deposition that Lough delivered cash in various
denominations, and that in some instances those bills came wrapped
in WesBanco bands.

Id. at 195.

At one point, Jason took a picture

of a fan of $50.00 bills with a WesBanco band next to them and
posted that picture on Rachaelle’s Facebook page.
243-44.

Id. at 14, 232,

The officer who investigated the extortion, spoke with a

WesBanco teller, and she confirmed that the WesBanco band in the
picture had her initials on it and that the money pictured was
issued to Bethany.

Id. at 232, 240.

Each of the Weeses’ plea

agreements and criminal judgments included a statement that the
Currency belonged to Bethany.

Id. at 31-37, 112, 114-120, 184.

When the DEA seized the Currency, it consisted mostly of
$10.00 and $20.00 bills in rubber-banded stacks.
at 5, 14, 15.

ECF No. 22 Ex. 2

The officer who found the Currency stated that there

were no bank bands on any of the Currency and that he found no bank
bands in the residence.

Id. at 5-6.

4

The officers questioned the

 Weeses about the source of the Currency, and they each gave varied
accounts of the Currency’s “legitimate” sources.

Id. at 4-5.

Rachaelle told the officers that the Currency consisted of hers and
Jason’s legitimately earned money and money that Jason borrowed
from his mother, Penny Weese.

Id.

the Currency from his grandmother.

Jason said that he inherited
Id.

The officers interviewed

Penny Weese, and she said she had not loaned Jason that much money,
that he had not received his inheritance, and that she believed the
Currency was from drug sales.
On

of

the

Currency’s forfeiture to the Weeses and Jason Weese’s mother.

Id.

at 2-3.

April

8,

2013,

the

Id. at 6.
DEA

sent

written

notice

It also published notice on www.forfeiture.gov for thirty

consecutive days beginning on May 21, 2013.

Id. at 3-4.

day to file a claim to the Currency was June 21, 2013.

The last
Id. at 4.

The declaration of forfeiture was issued on August 20, 2013.

Id.

at 5, 24.
On May 15, 2014, Bethany sent a letter to the DEA requesting
information regarding the Currency.

Id. at 25.

The DEA responded

that the Currency had already been forfeited and disposed of, and
that the last day to file a claim was June 21, 2013.

Id. at 27.

That December, the DEA disbursed the Currency to itself and local
law

enforcement

agencies

according

to

its

equitable sharing issued on November 18, 2013.

5

final

decision

on

ECF No. 23 Ex. 1 at

 253-55.

Bethany then filed this action on October 22, 2014, to

vacate the declaration of forfeiture under 18 U.S.C. § 983(e).
II.

Applicable Law

Under Federal Rule of Civil Procedure 56, this Court must
grant a party’s motion for summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A fact is

“material” if it might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).

A dispute of material

fact is “genuine” if the evidence “is such that a reasonable jury
could return a verdict for the non-moving party.”

Id.

If the

nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” summary
judgment must be granted against the plaintiff.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

In reviewing the supported

underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 322-23.

See

“The burden then shifts to the

nonmoving party to come forward with facts sufficient to create a
triable issue of fact.”

Temkin v. Frederick County Comm’rs, 945

6

 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992).
However, “a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986).
III.

Discussion

The federal government may seize money “furnished . . . in
exchange for a controlled substance” and “all proceeds traceable to
such an exchange.”

21 U.S.C. § 881(a)(6).

To forfeit property

that is worth $500,000.00 or less, the government must comply with
the notice procedures set forth in 19 U.S.C. §§ 1607-1609.
U.S.C. § 981(d); 21 U.S.C. § 881(b).

18

Section 1607(a) requires the

government to send “written notice of the seizure together with
information on the applicable procedures . . . to each party who
appears to have an interest in the seized article,” and to publish
notice for “at least three successive weeks.” 19 U.S.C. § 1607(a).
If no claims are filed within 20 days from the date of the first
publication of the notice, the government may enter a declaration
of administrative forfeiture having “the same force and effect as
a final decree and order of forfeiture in a judicial forfeiture
proceeding.”

19 U.S.C. § 1609.

Section 983(e) of Title 18 provides the exclusive remedy for
persons

seeking

to

vacate

a

declaration

7

of

administrative

 forfeiture.

18 U.S.C. § 983(e)(5).

The court must vacate the

forfeiture if: (1) the plaintiff was “entitled to written notice”
of the forfeiture; (2) the plaintiff did “not receive such notice”;
(3) the government “knew, or reasonably should have known” of the
plaintiff’s interest; (4) the government “failed to take reasonable
steps

to

provide

[the

plaintiff]

with

notice”;

and

(5)

the

plaintiff “did not know or have reason to know of the seizure
within sufficient time to file a timely claim.”

Id. § 983(e)(1).

The parties do not dispute that Bethany did not receive
written notice of the forfeiture.

Rather, the government argues

that there is insufficient evidence to find that Bethany was
entitled to written notice or that the government reasonably should
have known of Bethany’s interest in the Currency.
A.

Bethany’s Entitlement to Written Notice
A person is entitled to written notice of the forfeiture if

they “appear[] to have an interest in the seized article.”
U.S.C. §

1607(a).

19

Bethany claims that the Currency was embezzled

by Lough to pay the Weeses.

The government argues that there is

insufficient evidence to show that the Currency was the proceeds of
the extortion and embezzlement schemes.
First, the government argues that Bethany’s complaint admits
the Currency was indicative of drug money. The complaint describes
drug proceeds as typically being in “small bills, i.e., $5’s,
$10’s, and $20’s.”

ECF No. 1 at 4.

8

The government notes that the

 Currency

consisted

of

smaller

bills

in

rubber-banded

indicating that the Currency was drug proceeds.
at 5, 14, 15.

stacks,

ECF No. 22 Ex. 2

However, Bethany was permitted to, and indeed did,

submit evidence in opposition to the motion for summary judgment
rather than relying only on the allegations in its complaint.

See

Fed. R. Civ. P. 56(c)(1) (requiring a party asserting that a fact
is genuinely disputed to “support the assertion by[] citing to
particular parts of the material record”).
To

that

end,

Bethany

submitted

enough

evidence

for

a

reasonable jury to find that the Currency belonged to Bethany.
Lough confessed to giving the embezzled funds to the Weeses.
No. 23 Ex. 1 at 218, 222, 226.

ECF

Some of Lough’s payments were in

smaller bills while other payments were in larger bills wrapped in
WesBanco bands.

Id. at 195.

Jason Weese posted a picture of crisp

$50.00 bills on Rachaelle Weese’s Facebook page with a WesBanco
band later identified by the issuing bank teller as being issued to
Bethany.

Id. at 14, 232, 240, 243-44.

admitted

that

extortion.

the

Currency

came

from

Jason and Rachaelle Weese
the

Id. at 31-37, 112, 114-20, 184.

proceeds

of

their

Further, the Weeses

concealed the true source of the Currency from the DEA in the
course of its investigation.

ECF No. 22 Ex. 2 at 4-5.

Based on

this evidence, a reasonable jury could certainly conclude that the
Currency came from the proceeds of the Weeses’ extortion and

9

 Lough’s embezzlement from Bethany.

Thus, a reasonable jury could

find that Bethany had an interest in the Currency.
Second, the government argues that the Weeses’ plea agreements
are not credible evidence that the Currency belongs to Bethany.
The Weeses were ordered to pay over $800,000.00 to Bethany in
restitution, ECF No. 23 Ex. 1 at 110, 182, and it was in their best
interests to have the Currency partially satisfy their restitution
obligations rather than having to pay the full sum out of pocket.
However, this Court may not properly consider the credibility of
evidence on summary judgment.
(4th Cir. 1991).

Gray v. Spillman, 925 F.2d 90, 95

Moreover, all inferences must be viewed in the

light most favorable to the party opposing the motion.
Matsushita Elec. Indus., 475 U.S. at 587.

See

Therefore, this Court

must take the Weeses’ plea agreements at face value.

The evidence

Bethany submitted supports a finding that the Currency belongs to
Bethany, and this Court denies the government’s motion for summary
judgment as to this issue.
B.

Whether the DEA Knew or Should Have Known of Bethany’s

Interest in the Currency
First, the government argues that the DEA did not have actual
knowledge of Bethany’s interest in the Currency.

Bethany does not

contest this fact and did not submit any evidence supporting a
finding that the DEA had actual knowledge of its interest in the
Currency.

As such, this Court grants the government’s motion for

10

 summary judgment on the issue of the DEA’s actual knowledge of
Bethany’s interest in the Currency.
Second, there is a genuine issue of material fact regarding
whether the DEA reasonably should have known of Bethany’s interest
in the Currency.

This issue revolves around whether the DEA

adequately investigated the source of the Currency before seeking
forfeiture.

Bethany argues that the DEA failed to continue

investigating the source of the Currency after it became apparent
that the money could not have come only from drug proceeds.
government

argues

that

it

would

never

have

found

out

The
about

Bethany’s interest through a continued investigation into the
Currency’s source.
Specifically, Bethany argues that the DEA’s investigation did
not support its conclusion that the Currency was the proceeds of
drug sales.

Bethany argues that, based on the relatively small

amount of marijuana found, it is unlikely that the Weeses had
accumulated

over

$260,000.00

from

street-level

drug

dealing.

Further, the DEA looked at Jason’s Facebook page, but did not look
at Rachaelle’s, which would have revealed a picture of $50.00 bills
with a WesBanco band, later identified as having been issued to
Bethany.

Instead,

Bethany

argues,

the

DEA

focused

its

investigation almost entirely on Jason and unjustifiably assumed
that the Currency was the proceeds of the Weeses’ drug dealing.

11

 The government argues that this Court should not second guess
the DEA’s investigation of the Weeses’ drug activities.

Further,

it argues that this Court should not impart the investigators’
knowledge gained during the extortion investigation upon the DEA,
which finished its investigation months before Lough confessed to
the embezzlement.
would

have

Currency.

led

It asserts that no evidence known by the DEA
it

to

investigate

Bethany’s

interest

in

the

It argues that it had no reason to look at Rachaelle’s

Facebook page and, even if it did, the photo of the Currency would
not have reasonably led the DEA to believe that the Currency
belonged to Bethany.
The record shows that, despite investigating the Weeses for
indoor marijuana cultivation, the DEA’s search of their home turned
up no evidence of marijuana cultivation.
3-4, 13.

ECF No. 22 Ex. 2 at 1-4,

Instead, the DEA found large amounts of marijuana and

distribution paraphernalia, indicating that the Weeses were engaged
in street-level drug sales.

Id. at 4, 13.

When questioned, the

Weeses gave differing accounts about the Currency’s “legitimate”
sources.

Id. at 4-5.

Penny Weese told the police that she did not

lend that much money to the Weeses and that Jason had not received
an inheritance. Id. The DEA searched Jason Weese’s Facebook page,
but

not

Rachaelle’s.

Id.

at

5.

Then,

the

DEA

ended

its

investigation into the Currency’s source and began forfeiture
proceedings.

12

 Viewing

the

record

in

Bethany’s

best

light,

this

Court

concludes that a reasonable jury could find that the DEA should
have known, based on its investigation, that the Currency was not
the proceeds from the Weeses’ drug sales.

Further, a reasonable

jury could find that a continued investigation into the Currency’s
source could have revealed that it belonged to Bethany. Therefore,
this Court finds that there is a genuine issue of material fact as
to whether the DEA reasonably should have known of Bethany’s
interest in the Currency, and this Court denies the government’s
motion for summary judgment as to this issue.
IV.

Conclusion

For the foregoing reasons, the defendant’s motion for summary
judgment is GRANTED IN PART and DENIED IN PART.

This Court grants

summary judgment for the defendant on the issue of whether the DEA
had actual knowledge of Bethany College’s interest in the Currency,
and under Rule 56(g) that fact shall be treated as established in
this case.

The defendant’s motion for summary judgment for all

other issues is denied.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.

13

 DATED:

November 19, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

14