Opinion
Criminal No. 96-365-2.
April 22, 1998
MEMORANDUM ORDER
Defendant has filed a pro se Motion for Return of Property pursuant to Fed.R.Crim.P. 41(e). The property in question is a 1988 Toyota Camray which was seized by DEA agents when he was arrested on July 17, 1996 after selling heroin to an undercover operative. Defendant had removed packages containing 390 grams of heroin from a secret compartment in the vehicle just prior to the arrest. Defendant was convicted on October 28, 1996 of conspiracy to distribute heroin. Plaintiff contends that he was given insufficient notice of the administrative proceedings initiated by the DEA for forfeiture of the vehicle and that the government unduly delayed instituting forfeiture proceedings. This defendant claims violated his right to Due Process.
It is clear from the record that within eight weeks of the seizure of the vehicle the DEA decided to initiate administrative forfeiture proceedings and sent written notice to defendant via certified mail. Notices sent to defendant in prison were delivered to an individual with authority to accept such mail and the government received certified mail receipts for them. Notice was also sent to defendant's attorney of record. Defendant does not aver that he never received the notices sent to him. That the government deferred proceedings while attempting to ensure that defendant received notice did not result in a denial of Due Process.
Moreover, Rule 41(e) is not a vehicle for challenging alleged procedural deficiencies in forfeiture proceedings. The government filed a civil forfeiture complaint in this District. Defendant does not dispute that he was served with a copy of the complaint and advised of his right to file a claim and an answer in that proceeding. Further, the government treated defendant's motion for return of property as a claim.
The civil forfeiture action regarding the vehicle was assigned to another Judge of this court and appropriately docketed as a civil action. Court records show that defendant never filed an answer and judgment was ultimately entered against him. Title to the vehicle was awarded to the United States.
The forfeiture action provided an adequate forum for defendant to challenge the legality of the seizure of the vehicle but he chose not to avail himself of it. Indeed, defendant has never asserted that the government lacked a strong basis for forfeiture of the vehicle in view of eyewitness evidence of its use by defendant to facilitate a drug trafficking offense.
ACCORDINGLY, this day of April, 1998, upon consideration of defendant's Motion for Return of Property and the response of the government thereto, IT IS HEREBY ORDERED that said Motion is DENIED.