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noting Dusenbery rejected any requirement that the Government must prove actual receipt of forfeiture notice
Summary of this case from Mosby v. United StatesOpinion
05 Civ. 8794 (RMB) (GWG).
August 17, 2006
REPORT AND RECOMMENDATION
Michael Centeno moves pro se pursuant to Fed.R.Crim.P. 41(g) for the return of property taken from him at the time of his arrest in 2001 and later forfeited to the United States. Centeno claims he never received notice of the forfeiture and that he is entitled to the property, which consists of currency in the amount of $1,615. For the reasons stated below, Centeno's motion should be denied.
I. BACKGROUND
The following facts are drawn from the parties' written submissions to the Court and are undisputed unless otherwise noted. On August 14, 2001, agents of the United States Drug Enforcement Administration ("DEA") executed a federal arrest warrant for Centeno at his residence where they seized, inter alia, $1,615 in U.S. currency. The Government seized the currency pursuant to 21 U.S.C. § 881, which authorizes the Government to seize money that is used to "facilitate" or is "proceeds" from a violation of the Controlled Substances Act ( 21 U.S.C. § 801 et seq.). See Defendant's Motion for Return of Property Pursuant to Rule 41(g), filed Oct. 17, 2005 (Docket #2) ("Pet. Mot."), at 1; Government's Memorandum in Response to Petitioner's Motion for the Return of Property, filed Mar. 10, 2006 (Docket #9) ("Resp. Mem."), at 1. On September 26, 2001, the DEA sent written notice of the currency seizure by certified mail, return receipt requested, to Centeno at the same residence from which the currency was seized. See Notice of Seizure, dated Sept. 26, 2001 (reproduced as Ex. 1 to Declaration of Terrence J. King, dated Feb. 8, 2006 ("King Decl.") (annexed to Resp. Mem.)); King Decl. ¶ 4(b). However, the United States Postal Service returned the notice to the DEA indicating it was "undeliverable." See Certified Mail Receipt, dated Oct. 3, 2001 (reproduced as Ex. 2 to King Decl.); King Decl. ¶ 4(b).
The agents also seized a cellular telephone and pager, both of which Centeno had sought to recover in his initial motion papers. See Pet. Mot. at 1. Since that time, however, the DEA has returned these items to Centeno's family. See Resp. Mem. at 1 n. 1; Petitioner's Reply to the Government's Memorandum in Response to Petitioner's Motion for the Return of All Property, filed May 9, 2006 (Docket #10) ("Pet. Reply Mem."), at 8.
Also on September 26, 2001, the DEA sent written notice by certified mail, return receipt requested, to Michael Centeno c/o Margaret Shalley Esq., at Shalley's law office. See Notice of Seizure, dated Sept. 26, 2001 (reproduced as Ex. 3 to King Decl.); King Decl. ¶ 4(c). Delivery of this notice was accepted on October 1, 2001, by an individual who signed the return receipt. See Certified Mail Receipt, dated Oct. 1, 2001 (reproduced as Ex. 4 to King Decl.); King Decl. ¶ 4(c). Additionally, on September 26, 2001, the DEA sent written notice to Centeno at the Metropolitan Correction Center in Manhattan.See Notice of Seizure, dated Sept. 26, 2001 (reproduced as Ex. 5 to King Decl.); King Decl. ¶ 4(d). However, the Postal Service returned the notice to the DEA indicating, "Return to sender: inmate register number needed: (two or more individuals with the same name)." See Certified Mail Receipt, dated Sept. 26, 2001 (reproduced as Ex. 6 to King Decl.); King Decl. ¶ 4(d). Then, on February 14, 2002, the DEA sent a notice containing an inmate identification number to Centeno at the Metropolitan Detention Center ("MDC") in Brooklyn. See Notice of Seizure, dated Feb. 14, 2002 (reproduced as Ex. 8 to King Decl.); King Decl. ¶ 4(f). An individual at the MDC accepted delivery of this notice by signing in the "Signature" block of the receipt. See Certified Mail Receipt, undated (reproduced as Ex. 9 to King Decl.); King Decl. ¶ 4(f). In addition to the mailed notices, on October 8, 15, and 22, 2001, notice of the seizure was published in the Wall Street Journal, pursuant to 19 U.S.C. § 1607(a) and 21 C.F.R. § 1316.75. See King Decl. ¶ 4(e) Ex. 7.
Both the published and mailed notices explained Centeno's option of filing a claim with the DEA Forfeiture Counsel. See e.g., King Decl. ¶ 4(e) Exs. 1, 7. In addition, the published and mailed notices explained the option of filing a petition for remission or mitigation of forfeiture. See id. The notices mailed on September 26, 2001, stated that the deadline for Centeno to file a claim was October 31, 2001, see King Decl. Exs. 1, 3, 5; the published notices stated that the deadline was November 21, 2001, see King Decl. ¶ 4(e) Ex. 7; and the last mailed notice sent to the MDC on February 14, 2002, set a deadline of March 21, 2002, see King Decl. ¶ 4(f) Ex. 8.
As of April 10, 2002, Centeno had not filed any claim contesting the seizure. Because the time limit for filing a claim had expired, see 19 U.S.C. § 1609, the DEA administratively forfeited the $1,615 in U.S. currency to the United States. See King Decl. ¶ 4(g); Declaration of Forfeiture, dated Apr. 10, 2002 (reproduced as Ex. 10 to King Decl.).
On March 11, 2003, Centeno pled guilty to conspiracy to distribute narcotics in violation of 21 U.S.C. § 846, and on April 13, 2005, he was sentenced to 135 months' imprisonment.See Order, filed Apr. 22, 2005 (United States v. Lozano, et al., 01 Cr. 945 (RMB) (S.D.N.Y.) (Docket #194)).
On October 17, 2005, Centeno filed the instant Motion to Return Property pursuant to Fed.R.Crim.P. 41(g). See Pet. Mot. The Government responded to the motion in a letter.See Letter from Edward C. O'Callaghan, dated Nov. 21, 2005. Centeno replied to the letter with an affidavit. See Affidavit of Michael Centeno, dated Nov. 30, 2005 ("Pet. Aff."). After the Court ordered the Government to submit further briefing, see Order, filed Jan. 3, 2006 (Docket #6), the Government submitted a memorandum of law opposing the motion and attaching supporting documents, see Resp. Mem. Centeno submitted a reply. See Pet. Reply Mem.
In his motion, Centeno claims that the $1,615 in U.S. currency belongs to his wife, Lori Ann Lamattina. See id. at 1. We will assume for purposes of the present proceeding that Centeno has an interest in the money as well and thus has standing to pursue the challenge he makes here.
In May 2006, the Court ordered yet additional briefing, see Order, filed May 9, 2006 (Docket #11), and the Government responded with another letter and an affidavit, see Letter from Seetha Ramachandran, dated July 7, 2006 ("Resp. Supp. Mem."); Declaration of Rina Desai, dated July 7, 2006 ("Desai Decl."). Centeno filed another reply. See Opposition Motion to Government's Response to the Court's Order of May 9th, 2006, Regarding Centeno's Motion for Return of Property, filed July 25, 2006 (Docket #13) ("Pet. Supp. Mem.").
II. DISCUSSION
In the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), Congress amended the procedures for administrative forfeiture of property. See Pub.L. No. 106-185, 114 Stat. 202 (codified at 18 U.S.C. § 983). CAFRA "consolidated and dramatically overhauled the procedures for civil . . . forfeiture proceedings." United States v. $557,933.89, More or Less, in United States Funds, 287 F.3d 66, 76 n. 5 (2d Cir. 2002). CAFRA applies to civil forfeiture proceedings commenced on or after August 23, 2000. See 114 Stat. 202 at 225. CAFRA is "the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute." 18 U.S.C. § 983(e)(5).
Centeno has styled his application as a motion pursuant to Fed.R.Crim.P. 41(g). That Rule, however, is inapplicable to civil forfeitures because a judgment of conviction has been entered against Centeno. See Fed.R.Crim.P. 1(a)(5)(B) (listing "civil property forfeiture[s] for violating a federal statute" as proceedings excluded from operation of the Federal Rules of Criminal Procedure). Indeed, case law makes clear that "[w]here criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) [now 41(g)] motion as a civil complaint." Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir. 1992). Because administrative forfeiture proceedings in Centeno's case are complete, see King Decl. ¶ 4(g) Ex. 10, his only remedy is a motion to set aside a declaration of forfeiture under CAFRA. 18 U.S.C. § 983(e)(5). Accordingly, we treat Centeno's Motion to Return Property pursuant to Fed.R.Crim.P. 41(g) as a "motion to set aside forfeiture" under CAFRA. See 18 U.S.C. § 983(e)(1); see also Guzman v. United States, 2005 WL 2757544, at *1 (S.D.N.Y. Oct. 24, 2005) (construing a motion pursuant to Fed.R.Crim.P. 41(g) as a motion to set aside forfeiture under 18 U.S.C. § 983(e)(1)). Indeed, after the Government noted that Centeno's motion should be construed as arising under CAFRA, Centeno requested that this Court so treat it as well. See Pet. Reply Mem. at 13, 15.
The requirements for making a motion to set aside forfeiture are as follows:
(1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person's interest in the property, which motion shall be granted if —
(A) the Government knew, or reasonably should have known, of the moving party's interest and failed to take reasonable steps to provide such party with notice; and
(B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.18 U.S.C. § 983(e). In other words, Centeno must show both that the government did not take "reasonable steps" to provide notice,and that Centeno did not have "reason to know of the seizure with sufficient time to file a timely claim." The Government has opposed Centeno's application only with respect to the first of these two points.
Centeno's claim rests on his contention that the Government did not provide sufficient notice under CAFRA because the Government has failed to show that he was "actually served" with notice. Pet. Reply Mem. at 16. As an initial matter, we note that due process under the Constitution requires only that a notice of forfeiture be "'reasonably calculated' . . . to apprise a party of the pendency of the action," and does not require "actual notice." Dusenbery v. United States, 534 U.S. 161, 170 (2002) (citation omitted); accord Alli-Balogun v. United States, 281 F.3d 362, 369 (2d Cir. 2002).
CAFRA too contains no actual notice requirement. To the contrary, the statutory language makes clear that actual notice of a seizure is irrelevant if the Government has taken "reasonable steps to provide" notice. See 18 U.S.C. § 983(e)(1)(A) (emphasis added). CAFRA's requirement that the Government need only take "reasonable steps to provide" notice mirrors the due process requirement that notice be "reasonably calculated . . . to apprise a party of the pendency of the [forfeiture] action." Dusenbery, 534 U.S. at 170. Thus, we look to Dusenbery for guidance on whether Centeno can succeed on his CAFRA claim.
In Dusenbery, the Supreme Court held that "use of the mail addressed to petitioner at the penitentiary" was a sufficient form of notice of forfeiture to satisfy the petitioner's due process rights. Dusenbery, 534 U.S. at 172-73. As inDusenbery, here notice was sent to Centeno's place of imprisonment. See King Decl. ¶ 4(f) Ex.9. The procedures in place at the MDC in February 2002 when Centeno was housed there were as follows:
Upon delivery of a certified letter by the U.S. Postal Service to the MDC, a correctional officer would sign the return receipt that accompanied the certified letter upon acceptance of the certified letter by the MDC. Subsequently, the inmate counselor for the inmate to whom the certified letter was addressed would sign for the certified letter in an "Incoming Inmate Certified Logbook" and deliver the certified letter to the inmate.
Desai Decl. ¶ 2-3. These procedures are almost identical to the procedures described and approved of in Dusenbery. See 534 U.S. at 168-69, 172-73. Accordingly, the Government took "reasonable steps" towards providing Centeno notice of the forfeiture within the meaning of CAFRA. The recent case of Jones v. Flowers, 126 S. Ct. 1708 (2006), is not to the contrary.Jones held that, as a matter of Constitutional due process, "when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so." Id. at 1713. Here, however, the Government never received any information that Centeno had failed to receive the notice sent to his place of imprisonment.
Centeno does not dispute that he was incarcerated at the location to which the notice was sent. See Pet. Reply Mem. at 11. Rather, Centeno claims that the Government "fails to present sufficient proof that Centeno actually signed a 'Receiving Log and or Record Book of any delivery card from [the] DEA, with the postage of a Notice of Seizure.'" Pet. Reply Mem. at 11. This argument, however, is essentially an argument that the Government must prove that Centeno received actual notice — a position rejected by Dusenbery. Significantly, in Dusenbery "the prisoner was incarcerated at a correctional facility at which inmates were not required to sign for certified mail themselves or sign a mail logbook indicating actual receipt. . . . [Dusenbery] noted that such procedures might better assure receipt, but held that sending notice addressed to the prisoner at his facility of incarceration is sufficient." Patterson v. United States, 2005 WL 2414765, at *4 (S.D.N.Y. Sept. 27, 2005) (citing Dusenbery, 534 U.S. at 165-66, 171-73). Thus, asPatterson held, "the agency seeking forfeiture is entitled to rely on the integrity of the correctional facility's internal mail delivery system." Patterson, 2005 WL 2414765, at *4.
Because notice was sufficient under CAFRA, the Court does not reach Centeno's arguments with respect to the merits of the seizure. See Pet. Reply Mem. at 17-18. See 18 U.S.C. § 983(e)(5) (motion under CAFRA is the "exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute"); accord Mesa Valderrama v. United States, 417 F.3d 1189, 1196 (11th Cir. 2005).
CONCLUSION
For the reasons stated above, Centeno's motion (Docket #2) should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections.See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Richard M. Berman and the undersigned at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Berman. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).