Opinion
Case No. 3:00-cr-092(08)
03-07-2014
JASON WALKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE WALTER H. RICE
DECISION AND ENTRY OVERRULING PETITIONER'S MOTION FOR
RETURN OF PROPERTY PURSUANT TO FEDERAL RULE OF CRIMINAL
PROCEDURE 41(g) (DOC. #958); OVERRULING AS MOOT
PETITIONER'S MOTION FOR ANSWER ON RETURN OF PROPERTY
(DOC. #1097)
When Petitioner was arrested on drug trafficking charges, the Drug Enforcement Agency seized $42,720.00 worth of jewelry, two audio tapes, and a check for $2700.00. This matter is currently before the Court on Petitioner's Motion for Return of Property Pursuant to Federal Rule of Criminal Procedure 41(g), Doc. #958, and his Motion for Answer on Return of Property, Doc. #1097. Rule 41(g) provides that "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return."
Petitioner argues that the property must be returned because the Government failed to follow proper procedures for criminal forfeiture, thereby violating his due process rights. Petitioner's arguments lack merit.
Petitioner first argues that the Government should have included a criminal forfeiture count in the Indictment, and complied with established statutory procedures for criminal forfeiture. Petitioner, however, fails to distinguish between a criminal forfeiture and an administrative forfeiture. The property at issue was seized pursuant to 21 U.S.C. § 881(a)(6), which provides that all proceeds traceable to a drug-related transaction are subject to forfeiture. The forfeiture provisions of the customs laws apply to this statute. See 21 U.S.C. § 881(d).
Where, as here, the seized property is valued at less than $500,000, there is no need for judicial criminal forfeiture proceedings. Rather, the property is subject to administrative forfeiture. The Government must publish notice of the seizure for three successive weeks, and provide written notice to each party who appears to have an interest in the property. 19 U.S.C. § 1607(a). A person claiming interest in the property has twenty days from the date of the first publication to file a claim. 19 U.S.C. § 1608. If no claim is timely filed, the property is declared to be forfeited, and title vests in the United States. 1 9 U.S.C. § 1609.
That is precisely what happened here. The Government published notice of the seizure in the Wall Street Journal for three successive weeks beginning on March 27, 2000, and sent written notice to Petitioner. Records show that he received that notice on March 20, 2000. Ex. A to Doc. #1007. Since Petitioner did not file a claim within twenty days from the date of the first publication, the Government issued a declaration of forfeiture, dated May 10, 2000. Ex. D to Doc. #1007.
On April 18, 2000, Petitioner did file a Petition for Remission or Mitigation of Forfeiture, requesting the return of the jewelry. Ex. B to Doc. #1007. The DEA denied that Petition on the merits because Petitioner did not satisfy his burden of proving that the funds used to purchase the forfeited property came from an independent, non-drug related source. Ex. C to Doc. #1007. Petitioner concedes that this administrative denial is not subject to judicial review on the merits. The court may, however, review it to see if the agency followed the proper procedural safeguards. See Scarabin v. DEA, 919 F.2d 337, 338 (5th Cir. 1990).
"Once an administrative forfeiture is complete, a district court may review only 'whether the forfeiture comported with constitutional due process guarantees.'" United States v. Robinson, 434 F.3d 357, 362 (5th Cir. 2005) (quoting Kadonsky v. United States, 216 F.3d 499, 506 (5th Cir. 2000)).
In his reply brief, Petitioner argues that the Government has "no evidence pertaining to Walker receiving nor signing for any notice of forfeiture." Doc. #1008, at 2. He maintains, for the first time, that he was deprived of notice and an opportunity to timely file a claim. Due process requires "notice reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). In Dusenbery v. United States, 534 U.S. 161, 170 (2002), the Court held that actual notice is not required.
Here, records show that the Government published notice as required, and sent written notice on March 1 5, 2000, to Petitioner at 206 E. Parkwood Drive, Dayton, OH 45405. Records further show a return receipt date of March 20, 2000. Ex. A to Doc. #1007. Petitioner does not deny that this was his home address. The Court finds that the Government's efforts were reasonably calculated to apprise Petitioner of the pendency of the administrative forfeiture action and were, therefore, constitutionally sufficient.
Moreover, in light of the fact that Petitioner filed a Petition for Remission or Mitigation less than one month after written notice was sent, it would appear that Petitioner did receive actual notice of the administrative forfeiture proceedings, yet failed to file a timely claim. Having failed to pursue the administrative remedy available to him, he is not entitled to a return of his property under Federal Rule of Criminal Procedure 41(g).
Finally, Petitioner argues that the Government's response to his motion was untimely. He notes that the Court ordered the Government to file a response within 20 days of its October 24, 2006, Entry. Doc. #978. Petitioner, however, filed his Notice of Appeal on November 3, 2006. Doc. #980. The filing of a Notice of Appeal generally operates to stay further proceedings at the district court level. Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Nat. Resources, 71 F.3d 1197, 1203 (6th Cir. 1995). The Government's response was filed on June 7, 2007, within two weeks after the Sixth Circuit denied Petitioner's application for a certificate of appealability. It was, therefore, timely filed.
For the reasons set forth above, the Court OVERRULES Petitioner's Motion for Return of Property Pursuant to Federal Rule of Criminal Procedure 41(g), Doc. #958. The Court OVERRULES AS MOOT Petitioner's Motion for Answer on Return of Property, Doc. #1097.
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WALTER H. RICE
UNITED STATES DISTRICT JUDGE