Summary
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)
Summary of this case from Centeno v. U.S.Opinion
05 Civ. 4902 (LBS).
October 24, 2005
MEMORANDUM AND ORDER
Petitioner Jairo Guzman ("Petitioner") moves the Court for the return of property taken from him at the time of his arrest in 1998 and la ter forfeited to the United States by the United States Drug Enforcement Administration ("DEA"). Petitioner claims he never received notice of the forfeiture and that he is entitled to the property: currency in the amount of $46,500. For the reasons discussed below, Petitioner's motion to set aside the forfeiture is denied.
Petitioner claims the correct amount is $54,000. As Petitioner's claim fails, the Court need not address this dispute.
BACKGROUND
These facts are drawn from the parties' written submissions to the Court and the pre-sentence report in the underlying case. On September 8, 1998, agents of the DEA arrested Petitioner and seized from him a large amount of U.S. currency. Petitioner pleaded guilty in March of 1999 to one count of conspiring to distribute controlled substances in violation of 21 U.S.C. § 846. He was sentenced in June of that year to a term of 120 months. Throughout the proceedings he made no attempt to reacquire the currency seized by the government. Petitioner claims that this is because he did not understand what was happening during his arrest and that he was never notified that the money would be forfeited.
DISCUSSION
Five years ago, Congress passed the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), Pub.L. No. 106-185, 114 Stat. 202 (2000). In doing so, Congress has attempted to create a single avenue for challenging a forfeiture of property seized by the federal government. See 18 U.S.C. § 983(e)(5) (2005) ("A motion filed under this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute."). Section 983(e)(1) states, in relevant part, that "[a]ny 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." CAFRA's statute of limitations period for challenges to forfeitures is five years. See 18 U.S.C. § 983(e)(3) ("A motion under paragraph (1) may be filed not later than 5 years after the date of final publication of notice of seizure of the property.").
Petitioner submitted to the Court a pro se motion for return of property, citing Rule 41(g) of the Federal Rules of Criminal Procedure. The Court construes this motion as a civil complaint due to the inapplicability of Rule 41(g) to civil forfeitures. See FED. R. CRIM. P. 1(a)(5)(B) (listing "civil property forfeiture[s] for violating a federal statute" as excluded proceedings).
However, the Court is not convinced this claim can be brought under CAFRA. CAFRA states that "this Act and the amendments made by this Act shall apply to any forfeiture proceeding commenced on or after the date that is 120 days after the date of the enactment of this Act." § 21, 114 Stat. 202 at 225. The commencement date was August 23, 2000; Petitioner's administrative forfeiture was completed on December 2, 1998. It seems reasonably clear from the text of the statute that forfeiture proceedings completed before August 23, 2000 are not covered by CAFRA. Therefore a different statute of limitations must apply. See United States v. Duke, 229 F.3d 627, 629 (7th Cir. 2000) ("[T]here is no congressional statute of limitations expressly applicable to earlier administrative forfeitures. For that matter, it is not even clear what the jurisdictional basis is for a challenge to such a forfeiture. . . .").
There is some disagreement among the district courts.Compare United States v. Portrait of Wally, No. 99-9940, 2002 U.S. Dist. LEXIS 6445, at *42 (S.D.N.Y. Apr. 12, 2002) ("CAFRA does not apply to forfeiture proceedings commenced before August 23, 2000.") with Rohlsen v. DEA Atlanta Airport Task Force, No. 03-3204, 2005 WL 878573, at *5 (N.D. Ga. Feb. 18, 2005) (CAFRA "applies to a challenge filed after August 23, 2000, even where the administrative forfeiture was completed prior to August 23, 2000."). See also Stefan D. Cassella, The Civil Asset Forfeiture Reform Act of 2000: Expanded Government Forfeiture Authority And Strict Deadlines Imposed on All Parties, 27 J. LEGIS. 97, 118 (2001) ("[T]he legislative history indicates that § 983(e) was enacted to resolve uncertainty in the law. . . . It would make little sense for Congress to have enacted a provision intended to clarify the law, and to provide a procedure where none previously existed, only to have it not apply for more than a decade while prisoners continued to challenge old cases under the old law.").
Petitioner would be barred by CAFRA's five-year limitation. CAFRA marks the start of the limitations period at the date of the final publication of notice of seizure of property. See 18 U.S.C. § 983(e)(3). The facts presented reflect that the DEA administratively forfeited the $46,500 to the United States on December 2, 1998. The date of the final publication of seizure of property was November 11, 1998. Thus, at the time the Pro Se office received Petitioner's motion on April 13, 2005, CAFRA's five-year period had elapsed.
The Second Circuit has not yet examined whether § 983(e) applies to civil complaints initiated after August 23, 2000, which challenge forfeitures commenced before August 23, 2000. However, a pre-CAFRA case from the Second Circuit sheds light on this issue. Prior to the passage of CAFRA, the Second Circuit examined the nature of a claimant's assertion that property was forfeited unlawfully. See Polanco v. DEA, 158 F.3d 647 (2d Cir. 1998). The Court in Polanco found that "[s]ubject matter jurisdiction over this claim is found in 28 U.S.C. § 1331, the general federal question statute, because the complaint alleges a violation of the Fifth Amendment's Due Process Clause." Id. at 651. Other Circuits have agreed. See, e.g., United States v. Duke, 229 F.3d 627, 629 (7th Cir. 2000) ("We have held that the correct jurisdictional basis is 28 U.S.C. § 1331, the general federal-question statute. . . ."); United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995). As a result, the Second Circuit found that the appropriate statute of limitations was supplied by 28 U.S.C. § 2401(a). See Polanco, 158 F.3d at 652 ("[Petitioner's] claim — that the DEA failed to comply with its own forfeiture procedures — can be construed as a challenge to agency action. Section 2401(a) supplies the statute of limitations for suits challenging agency action under the APA.") (citations omitted). Section 2401(a) supplies a six-year limit for challenges to agency action. See 28 U.S.C. § 2401(a).
The six-year period runs from when the "right of action first accrues." Id. As noted by the Second Circuit in Adames v. United States, 171 F.3d 728 (2d Cir. 1999), the Polanco decision did not clearly define accrual. See Adames, 171 F.3d at 731-32 (noting conflicting statements regarding accrual in thePolanco opinion and stating that the opinion "does not explain how the panel might have reconciled" the statements). The two statements suggested alternatively that accrual began at (1) the date Petitioner "discovered or had reason to discover that his property had been forfeited without sufficient notice" or at (2) "the close of the forfeiture proceedings, however soon after the seizure." Polanco, 158 F.3d at 654. As the Second Circuit chose to "pretermit the question" of determining when accrual occurs,Adames, 171 F.3d at 732, this Court analyzes both possible scenarios in addressing the instant case.
First, if the date of accrual is the date the forfeiture is completed, Petitioner's action is time-barred. The facts presented reflect that the DEA administratively forfeited the $46,500 to the United States on December 2, 1998. By the time the Pro Se Office received Petitioner's motion on April 13, 2005, the six-year period had elapsed.
Second, if the appropriate date is the date Petitioner "discovered or had reason to discover that his property had been forfeited without sufficient notice," the facts reflect that Petitioner did receive sufficient notice. The government had a statutory obligation to notify the Petitioner of the impending forfeiture. See 19 U.S.C. § 1607(a) (1994) ("[T]he appropriate customs officer shall cause a notice of the seizure of such articles and the intention to forfeit . . . to be published for at least three successive weeks in such manner as the Secretary of the Treasury may direct. Written notice of seizure together with information on the applicable procedures shall be sent to each party. . . ."). The government met its obligations for providing notice of imminent forfeiture as required by federal statute.
The government sent written notice of the seizure and imminent forfeiture to Petitioner by certified mail, return receipt requested. Petitioner was incarcerated at the Hudson County Jail in New Jersey on the day written notice was accepted, and the return receipt indicated that the mail was accepted at the jail for Petitioner. The government has a copy of the receipt. The record reflects that notice was published for three successive weeks in USA Today.
The Supreme Court has found that such notice comports with the requirements of the Fifth Amendment's Due Process Clause. See Dusenbery v. United States, 534 U.S. 161, 171 (2002) ("[O]ur cases have never required actual notice."). Indeed, as the Court noted in Dusenbery, due process does not require notice to be witnessed in prison by a guard or require that the receipt be cosigned. See id. ("The letter in question was sent to petitioner in 1988. . . . What might be reasonably fresh in the minds of all parties had the question arisen contemporaneously will surely be stale five years later. . . . The title to property should not depend on such vagaries."). Whether or not Petitioner actually received the notice, the government's certified mailing to the jail bars his challenge. In short, the government's actions provided Petitioner with notice foreclosing this action.
CONCLUSION
For the reasons stated above, Petitioner's claim fails. If CAFRA applies, his claim is time-barred. If CAFRA does not apply, and if the accrual date for Petitioner's challenge is the date of the forfeiture, his claim is time-barred by the six-year limitation. Any other potential accrual date is belied by the facts demonstrating sufficient notice of the forfeiture.
The motion to set aside the forfeiture is denied.
SO ORDERED.