ORDER

DUDLEY H. BOWEN, District Judge.

On 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).1 (Doc. No. 1.) This Court has jurisdiction over the case pursuant to 28 U.S.C. § 13452 and 28 U.S.C. § 1355(a).3

The 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.

These 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.)

George 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:

(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.5

Almost 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 XXXX52126 will be returned to the Defendant." (United States v. Bird, Crim. No. 318-005, Doc. No. 8, at 9.)

Two 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.)

George 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.

The 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.

On June 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.

At the 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.

Upon 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 here.7

The 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 funds that would abrogate a prior and unmistakable obligation. In sum, the return of the subject funds to Lisa Bird through enforcement of the Divorce Decree is not a breach of the plea agreement.

Upon the foregoing, the Court is inclined to direct the Vanguard Account and the funds derived from the T. Rowe Price Account be remitted to Lisa Bird.

In the interest of judicial expediency, the Court hereby ORDERS AND DECREES that the United States Marshal shall deposit the proceeds derived from the seizure of the T. Rowe Price Account into the Registry of the Court forthwith. The Court further ORDERS AND DECREES that the custodian of the Vanguard Account shall close that account and deposit the balance into the Registry of the Court forthwith.8 The Clerk of Court shall maintain the funds in the Registry until further Order of the Court. Finally, IT IS ORDERED that there shall be no disposition of any of the remaining properties until further Order of the Court.

Turning back to the disposition of the funds derived from the two subject Accounts (the T. Rowe Price and Vanguard Accounts), IT IS HEREBY ORDERED AND DECREED that any interested party shall show cause in writing, if any they can, within twenty-one (21) days hereof as to why these funds should not be distributed to Lisa Bird as the rightful claimant through a Divorce Decree agreed to by George Mack Bird III and ordered by the Superior Court of the Western Judicial Circuit of Georgia.9

The Clerk of Court is directed to serve this Order upon the following:

Finally, IT IS ORDERED that Lisa Bird's motion for contempt (doc. no. 57) is DENIED. Because the Government invoked the jurisdiction of this Court to resolve any and all claims related to the two subject Accounts, and because through the exercise of its jurisdiction the ends of justice and equity will be served, the Government's motion to remove the two subject Accounts from this lawsuit (doc. no. 63) is DENIED.

ORDER ENTERED.

COURT'S EXHIBIT A

FINAL JUDGMENT AND DECREE

This matter having been scheduled for a final trial on June 26, 2017, and the parties having reached an agreement on all issues on a final basis, it is hereby ordered:

It is the judgment of this Court that a total divorce be granted, that is to say, a divorce a vinculo matrimonii, between the parties to the above-stated case, on legal principles. And it is considered, ordered and decreed by the Court that the marriage contract heretofore entered into between the parties to this case, from and after this date, be and is set aside and dissolved as fully and effectually as if no such contract had ever been made or entered into, and the Plaintiff and Defendant, formerly husband and wife, in the future shall be held unconnected by any nuptial union or civil contract whatsoever.

The Plaintiff herein shall have the right to remarry and the Defendant shall have the right to remarry.

Real Property. Plaintiff shall receive exclusive and permanent ownership and possession of the residence located at 1060 Winthrop Place, Watkinsville, Oconee County, Georgia, free and clear of any claim by Defendant, and shall be responsible for and pay all expenses associated with the residence. Defendant shall execute a quitclaim deed contemporaneously with the entry of the Decree.

Defendant shall retain the real estate which he received from the estate of Marcile Bird of approximately 180 acres in Candler County, Georgia.

Defendant shall retain his interest in the property titled in the name of Venture Investment Properties consisting of three tracts (105 aces in Dodge County, 24 acres in Dodge County, and 105 acres in Candler County).

Liquid Assets. Plaintiff shall retain the funds in her Athens First Bank & Trust checking account, her Fidelity SEP IRA, and her Fidelity traditional IRA.

Defendant shall convey to Plaintiff all stock in his name currently held in BB&T Account No. xxx9502, with an approximate value of $64,425.52 as of March 1, 2017. Defendant shall execute all documents necessary to facilitate the transfer of these assets to Plaintiff.

Vehicles. Plaintiff shall receive the Ford Expedition and the Jeep. Defendant shall receive all other vehicles owned by the parties. Provided, however, that Defendant shall convey the title to the 2008 Nissan Rogue to Hilary Bird and the title to the 2009 Kia Sportage to Macy Bird. Each party shall be responsible for all expenses associated with his or her vehicles.

Personal Property. Plaintiff shall retain the furniture and furnishings at the marital residence. Defendant shall retain the furniture and furnishings at the properties in Dodge County and Candler County.

Assets Subject to Pending Forfeiture Action.

The following assets are current subject to a pending forfeiture action filed in the U.S. District Court, Southern District of Georgia, Dublin Division (Case No. CV816-020):

In the event that any of the assets subject to the forfeiture action are released, Plaintiff shall receive the first $2,000,000 of the released assets. Of the remaining released assets, up to a total of $4,500,000, Plaintiff shall receive twenty-eight percent (28%) and Defendant shall receive seventy-two percent (72%) of said assets. If more than $4,500,000 in assets are released, Plaintiff shall receive sixty percent (60%) and Defendant shall receive forty percent (40%) of said assets.

In the event that any of the real property subject to the forfeiture action is released, said property shall immediately be placed on the market for sale, upon the terms agreed to by the parties. In the event the property has not been sold within twelve (12) months, said property shall be sold at public auction, unless the parties agree otherwise. The net proceeds of the sale shall be divided as set out in the preceding paragraph. Defendant shall not further encumber any of said real property prior to its sale.

Undisclosed Assets. In the event it is determined that there are any assets that have not been disclosed by the Defendant in the course of this litigation, Plaintiff shall receive one hundred percent (100%) of those assets, which shall include one hundred percent (100%) of any funds in foreign bank accounts in Switzerland or other countries, whether previously disclosed or not. Provided, however, that this provision shall not apply to the funds that have already been paid from the Swiss account.

Other Assets. Any liquid assets other than those specified in this Decree shall be divided as follows: Plaintiff shall receive sixty percent (60%) and Defendant shall receive forty percent (40%) of said assets.

Debts. Except as otherwise provided herein, the parties shall be responsible for all indebtednesses in his or her name individually.

Alimony. Neither party is awarded alimony.

Attorneys' Fees. Each party shall be responsible for his or her attorney's fees. WING PAGE)

DECREE ENTERED.

Consented to and approved as to form: