Opinion
CRIMINAL ACTION NO: 98-158, SECTION: "J"(5)
July 29, 2002
MINUTE ENTRY
Before the Court is defendant Rene Decay's Motion to Dismiss Forfeiture, in which he seeks dismissal of an order of this Court ordering the forfeiture of US$12,020.00 seized during a lawful search of Decay's home. The Government opposes the motion. In the motion, Decay claims to have not received sufficient notice concerning the forfeiture, rendering it invalid or entitling him to a hearing on the issue.
The record in this case reveals that on August 7, 1998, Decay was charged in a superseding indictment with violating the Federal Controlled Substances Act, 21 U.S.C. § 841 and 846. The superseding indictment included a Notice of Forfeiture, indicating that pursuant to 28 U.S.C. § 853, the Government sought forfeiture from Decay of "any and all property constituting or derived from any proceeds [Decay] obtained directly or indirectly as a result of the [charged narcotics] violations."
The Government's Fourth Amended Bill of Particulars (Rec. Doc. 312), filed on July 15, 1999, reflected that with respect to Decay, the Government sought forfeiture of a car and US$12,020.00 seized at the time of Decay's arrest.
On July 22, 1999, Decay entered a plea of guilty to charges of violating the Federal Controlled Substances Act. As part of the plea agreement, Decay agreed to:
forfeit and give to the United States prior to the date of sentencing any right, title and interest which the defendant may have in any assets or interest in assets, including but not limited to cash assets, negotiable instruments, securities, property or other things of value, including any and all property which has been transferred or sold to or deposited with any third party, known or unknown by the defendant for a period of not less than 10 years prior to the date of the signing of this agreement that were involved in, used in, intended for use in, or obtained through, narcotic violations as well as any asset, interest, or proceeds defendant received or could receive or cause to be received by any third party in the future, directly or indirectly, in whole or in part, from defendant's illegal activities.
Likewise, in colloquy at his re-arraignment, Decay informed the Court that he understood and agreed to the forfeiture aspect of his criminal penalty. Pursuant to the plea agreement, a Preliminary Order of Forfeiture was entered on August 30, 1999. Rec. Doc. 373. The Preliminary Order directed the Government to publish notice in a newspaper of general circulation informing any interested third parties of the Marshal's intent to dispose of the property. No eligible person petitioned for a hearing following publication of notice, and accordingly, a Final Order of Forfeiture was entered on January 24, 2000.
As pointed out by the Government in its opposition, 21 U.S.C. § 853(n)(2) permits any person other than the defendant asserting a legal interest in forfeited property to petition the Court for a hearing within thirty days from the date of publication of the notice. Decay, as a defendant, has no standing to petition the Court for a hearing under this provision.
Decay's property was forfeited pursuant to 28 U.S.C. § 853(a), which states that anyone, who like Decay, is convicted of a violation of the Federal Controlled Substances Act which is punishable by imprisonment for more than one year "shall forfeit to the United States . . . (1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation . . . ." Further, Decay was actually notified of the Government's intent to require forfeiture of the $12,020.00 in drug proceeds, and he agreed to the forfeiture in his plea agreement and at his re-arraignment. Therefore, the Court finds the instant motion to dismiss the forfeiture completely lacking in merit, and accordingly, Decay's Motion to Dismiss Forfeiture or Alternatively, for a Hearing (Rec. Doc. 476) should be and is hereby DENIED.