Opinion
CV-24-00170-TUC-LCK
06-20-2024
United States of America, Plaintiff, v. $9,300.00 in United States Currency, Defendant.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff's Motion for Default Judgment. (Doc. 12.) Because there is not, and absent a defendant or claimant cannot be, full consent to Magistrate Judge jurisdiction in this case, the assigned Magistrate Judge submits a Report and Recommendation to Senior District Judge Raner C. Collins. See Gen. Ord. 21-25. The Magistrate Judge recommends the District Court, after its independent review of the record, grant Plaintiff's Motion for Default Judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2024, the government filed a Complaint for Forfeiture in Rem. (Doc. 1.) The government alleged that the defendant, $9300 in United States currency, was the proceeds of narcotics trafficking or was traceable to narcotics trafficking and was involved in a transaction or attempted transaction in violation of 18 U.S.C. § 1960. (Id. ¶¶ 1, 5.) The allegations are supported by an affidavit of U.S. Customs and Border Protection Officer Thomas Lipke. (Doc. 1-2.) CBP Officer Lipke attests that he was involved in the seizure of $9300 from two women at the Nogales Port of Entry in Arizona on November 6, 2023. (Id. ¶¶ 2, 5.) One of the women, Ashley Alcaraz Mungarro, stated that all the money belonged to the other woman. (Id. ¶ 10.) The other woman, Sara Lizarraga Mungarro, admitted the currency was the product of illegal narcotics sales. (Id. ¶¶ 7, 11.)
On April 12, 2024, the government gave notice of this forfeiture complaint to putative claimant, Sara Lizarraga Mungarro, by mailing copies of the Complaint for Forfeiture In Rem, Warrant of Arrest In Rem, and Notice of Forfeiture Action via certified, return receipt requested mail. (Doc. 7.) Pursuant to Rule G(4) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, the government published notice of this civil forfeiture action. (Doc. 8.) No appearance, answer, or motion under Rule 12 was filed by putative claimant Sara Lizarraga Mungarro, or any other person, on behalf of the defendant as required by Rule G(5)(b) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions and 18 U.S.C. § 983(a)(4)(B). At the government's request, the Clerk of Court entered default. (Docs. 10, 11.)
DISCUSSION
After the Clerk has entered default under Federal Rule of Civil Procedure 55(a), the Court has discretion to grant default judgment pursuant to Rule 55(b). See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986). Upon entry of default, "the factual allegations of the complaint, except those relating to the amount of damages, are taken as true." Hayden v. Prestige Horizons, No. CV-19-00335-TUC-DCB, 2020 WL 6203517, at *1 (D. Ariz. Oct. 22, 2020) (citing TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) (citing Fed.R.Civ.P. 55(b)(2))). Taking the allegations of the Complaint as true, the defendant, $9,300 in United States currency, constitutes property derived from, or is traceable to proceeds obtained directly, or indirectly, as a result of a violation 18. U.S.C. § 1960. Therefore, it is subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6) and 18 U.S.C. § 981(a)(1)(A).
RECOMMENDATION
The Magistrate Judge recommends the District Court grant Plaintiff's Motion for Default Judgment. (Doc. 12.) And enter an Order that all right, title, and interest in the defendant is hereby condemned, forfeited to, and vested in the United States. And further order that the defendant, $9,300 in United States currency is forfeited to the United States and shall be disposed of by Homeland Security Investigation, U.S. Customs and Border Protection according to law.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.