United States of America v. 2007 Chevrolet Silverado 1500 Pickup Truck, VIN: 1GCEK14J27Z545955, California License No. 8G37483
Filing
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FINDINGS and RECOMMENDATIONS Regarding Plaintiff's 21 Ex Parte Application for Default Judgment and Final Judgment of Forfeiture signed by Magistrate Judge Gary S. Austin on 7/21/2011. Objections to F&R due within fifteen (15) days of service of this recommendation.(Bradley, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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2007 CHEVROLET SILVERADO 1500
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PICKUP TRUCK, VIN:
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1GCEK14J27Z545955, CALIFORNIA
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LICENSE NO. 8G37483
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Defendant.
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_____________________________________ )
1:10-cv-01881 OWW GSA
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S EX PARTE
APPLICATION FOR DEFAULT
JUDGMENT AND FINAL JUDGMENT
OF FORFEITURE
(Document 21)
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INTRODUCTION
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In this civil forfeiture action, Plaintiff United States of America (or the “Government”)
seeks:
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Default judgment against the interests of Jorge Vargas and Mireya Vargas in a
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2007 Chevrolet Silverado 1500 Pickup Truck, VIN 1GCEK14J27Z545955,
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License No. 8G37483 (“Defendant Property”);
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Entry of a final forfeiture judgment to vest in the Government all right, title and
interest in the Defendant Property.
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This Court considered the Government’s default and final forfeiture judgment motion on
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the record and without oral argument on the now vacated July 29, 2011 hearing, pursuant to this
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Court’s Local Rule 230(g) and 540(d). For the reasons discussed below, this Court
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RECOMMENDS to:
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GRANT the Government default judgment and to ENTER final forfeiture
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judgment to vest in the Government all right, title and interest in the Defendant
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Property; and
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ORDER the Government, within ten (10) days of service of an order adopting
these findings and recommendations, to submit a proposed default and final
forfeiture judgment consistent with these findings and recommendations.
FACTUAL BACKGROUND
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Seizure of Defendant Property
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In April 2010, officers with the Fresno Police Department received information
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concerning the sales of methamphetamine in the City of Fresno. The subsequent investigation
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revealed Jorge Vargas, to be the source of supply of the methamphetamine sales. Officers
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utilizing a confidential source (hereafter “CS”) to arrange for the sale of one ounce of
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methamphetamine to an officer acting in undercover capacity. (Doc. 1 at ¶ 5.)
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On April 29, 2010, officers utilized the CS to arrange a narcotic transaction at the
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Economy Inn located at 4209 N. Blackstone Avenue, Room 131. Officers observed the CS
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arrive at this location in a red Oldsmobile driven by a subject later identified as Laura Castillo
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(hereafter “Castillo”), the CS then exited the vehicle and entered Room 131. Agents observed the
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red Oldsmobile driven by Castillo subsequently depart the location and return a short time later
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accompanied by the defendant vehicle driven by Jorge Vargas. (Doc. 1 at ¶¶ 6 & 7.)
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Upon arriving at the Economy Inn, Jorge Vargas parked the defendant vehicle next to
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the red Oldsmobile driven by Castillo. Castillo then exited her vehicle and knocked on the door
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of Room 131, at which point she was detained by officers inside of the room. (Doc. 1 at ¶ 7.)
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Assisting detectives then made their approach to detain Jorge Vargas. (Doc. 1 at ¶ 7.) Upon
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approaching the defendant vehicle, officers observed Jorge Vargas run from the defendant
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vehicle; he was subsequently arrested for obstruction, parole violation, and sales of
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methamphetamine. (Doc. 1 at ¶ 7.) During the subsequent search of the defendant vehicle
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officers located approximately one ounce of methamphetamine on the center console. (Doc. 1 at
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¶ 8.) The investigation revealed phone calls and text messages between Castillo and Jorge
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Vargas concerning the narcotic transaction and that Jorge Vargas was on active California
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Department of Corrections parole for drug sales. (Doc. 1 at ¶ 9.)
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The Government’s Claims
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On October 6, 2010, the Government filed its complaint for forfeiture in rem to claim:
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(1) that the Defendant Property is subject to forfeiture to the Government under Title 21 of the
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United States Code section 881(a)(4) in that the vehicle constitutes a conveyance used or
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intended to be used to transport, or in any matter to facilitate the transportation, sale, receipt,
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possession, or concealment of a controlled substance in violation of Title 21 of the United States
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Code section 841, et seq. (See Doc. 1.)
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On October 25, 2010, based upon the allegations set forth in the Complaint, the Clerk of
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the Court issued a Warrant for Arrest of Articles In Rem for the Defendant Property. (Doc. 5; see
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also Doc. 9.) The warrant was executed on November 18, 2010. (See Doc. 10.)
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Notice of Forfeiture Action
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On October 29, 2010, this Court authorized publication of the forfeiture action via the
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internet forfeiture website at www.forfeiture.gov for at least thirty (30) days. (Doc. 6.) On
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December 22, 2010, the Government filed its Declaration of Publication. (Doc. 11.)
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1.
Jorge Vargas
On October 26, 2010, copies of the complaint, arrest warrant, publication order and other
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related papers were served via first class and certified United States Mail to Jorge Vargas at his
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last known address located at 200 Maldonado Street in Mendota, California 93640. On
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December 16, 2010, the certified mail documents were returned as unclaimed. (Doc. 21-1 at ¶
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3.)
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On November 26, 2010, the Government attempted unsuccessfully to personally serve
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Jorge Vargas with copies of the complaint, arrest warrant, publication order and other papers
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related to this action, at the aforementioned address. (Doc. 21-1 at ¶ 4.)
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On or about March 10, 2011, the Government received information indicating Jorge
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Vargas was incarcerated at the Sierra Conservation Center in Jamestown, California. On March
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12, 2011, copies of the complaint, arrest warrant, publication order and other related papers were
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served via first class and certified United States Mail to Jorge Vargas at the Sierra Conservation
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Center, 5100 O’Byrnes Ferry Road in Jamestown, California. (Doc. 21-1 at ¶ 5.)
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On April 11, 2011, the Government personally served Jorge Vargas via the litigation
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coordinator at the state prison facility, with copies of the complaint, arrest warrant, publication
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order and other papers related to this action, at the Jamestown, California address. (Doc. 21-1 at
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¶ 4.)
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Mireya Vargas
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On October 26, 2010, copies of the complaint, arrest warrant, publication order and other
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related papers were served via first class and certified United States Mail to Mireya Vargas at her
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last known address located at 231 “I” Street in Mendota, California 93640. The certified return
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receipt was signed and returned to the Government on November 2, 2010. (Doc. 21-1 at ¶ 7.)
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Additionally, on November 23, 2010, the aforementioned documents were sent via first
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class and certified United States Mail to Erin Ormonde, attorney of record for Mireya Vargas in
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the administrative forfeiture action, whom agreed to accept service on her behalf, located at 2115
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Kern Street, Suite 101, in Fresno, California. The certified return receipt was signed and
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returned to the Government on November 1, 2010. (Doc. 21-1 at ¶ 8.)
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On November 23, 2010, the Government personally served Mireya Vargas with copies of
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the complaint, arrest warrant, publication order and other papers related to this action, through
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her attorney Erin Ormonde at Ms. Ormonde’s office in Fresno, California. (Doc. 21-1 at ¶ 9.)
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Default Entries
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At the Government’s request, the Clerk of the Court entered default against Mireya
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Vargas on March 10, 2011, and against Jorge Vargas on June 1, 2011. (Docs. 15 & 18.)
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DISCUSSION
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Sufficiency of the Complaint
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The Government contends that the allegations set forth in the Verified Complaint for
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Forfeiture In Rem and the facts cited "provide ample grounds" for forfeiture of the Defendant
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Property. (Doc. 21 at 6.) A complaint’s sufficiency is a factor to consider when deciding
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whether to grant default judgment. Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).
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Title 21 of the United States Code section 881(a)(4) provides for the forfeiture of the Defendant
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Property as it facilitated the transportation of narcotics for sale.
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In its Verified Complaint, the Government alleges that the Defendant Property constitutes
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a conveyance used or intended to be used to transport, or in any manner facilitate the
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transportation, sale, receipt, possession, or concealment of a controlled substance, and is
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therefore subject to forfeiture. (Doc. 1 at 3.)
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As referenced above and set forth in the Verified Complaint, the investigation into
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information received that Jorge Vargas was selling methamphetamine in Fresno, California,
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resulted in the seizure of the vehicle at issue here, as well as one ounce of methamphetamine.
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(Doc. 21 at 3.)
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The complaint meets the requirements of Supplemental Rule G. It is verified, states the
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grounds for subject matter jurisdiction, in rem jurisdiction, and venue, describes the property
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seized and the circumstances surrounding the seizure, and identifies the relevant statutes. (See
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Doc. 1.) In the absence of assertion of interests in the Defendant Property, this Court is not in a
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position to question the facts supporting the forfeiture of the vehicle. The facts as alleged
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provide a sufficient connection between the Defendant Property - a 2007 Chevrolet Silverado
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1500 Pickup Truck - and illegal drug activity to support the forfeiture.
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Notice Requirements
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The Government contends that it provided required notice for the forfeiture of the
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Defendant Property. (Doc. 21 at 7-8.) The Fifth Amendment’s Due Process Clause prohibits the
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Government from deprivation of property without “due process of law.” Individuals whose
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property interests are at stake are entitled to “notice and an opportunity to be heard.” United
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States v. James Daniel Good Real Property, 510 U.S. 43, 48, 114 S. Ct. 492 (1993).
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Notice by Publication
Supplemental Rule G(4) sets forth the rules for publication of the notice of action in
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federal forfeiture proceedings. Rule G(4)(a)(iv)(C) provides that in lieu of newspaper
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publication, the Government may publish notice “by posting notice on an official internet
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government forfeiture site for at least 30 consecutive days.” Local Admiralty and In Rem rules
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further provide that the Court shall designate by order the appropriate newspaper or other vehicle
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for publication. See Local Rules 530 & 171.
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Here, pursuant to this Court’s October 29, 2010, Order, the Government accomplished
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such notice with publication by way of the official internet government forfeiture site
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www.forfeiture.gov for a period of at least thirty (30) days. (See Doc. 21-1, Magee Declaration,
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¶ 15 & exhibits.)
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2.
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Personal Notice
When the Government knows of an owner of defendant property, however, the owner has
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a constitutional right of due process to require "the Government to make a greater effort to give
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him notice than otherwise would be mandated by [publication]." United States v. Real Property,
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135 F.3d 1312, 1315 (9th Cir. 1998). For such persons, the Government must attempt to provide
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actual notice by means "‘reasonably calculated under all circumstances' to apprise [the person] of
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the pendency of the cash forfeiture[.]" Dusenberry v. United States, 534 U.S. 161, 168, 122 S.
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Ct. 694 (2002). The Government must provide such notice "as one desirous of actually
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informing the absentee might reasonably adopt to accomplish it." Mullane v. Central Hanover
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Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652 (1950). "Reasonable notice, however,
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requires only that the government attempt to provide actual notice; it does not require that the
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government demonstrate that it was successful in providing actual notice." Mesa Valderrama v.
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United States, 417 F.3d 1189, 1197 (11th Cir. 2005).
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Supplemental Rule G(4)(b) mirrors this requirement, providing for notice to be "sent by
means reasonably calculated to reach the potential claimant." Additionally, this Court's Local
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Rule 540 addresses notice to persons known to have an interest in property subject to forfeiture.
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The rule requires that a party seeking default judgment in an action in rem to show to the Court's
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satisfaction that due notice and arrest of the property has been given by: (1) publication; (2) by
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personal service on the person having custody of the property; (3) if the property is in the hands
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of a law enforcement officer, by personal service on the person having custody prior to its
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possession by law enforcement agency or officer; and (4) by personal service or certified mail,
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return receipt requested, to every other person who has not appeared in the action and is known
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to have an interest in the property; provided that failure to give actual notice to such other person
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may be excused upon a satisfactory showing of diligent efforts to give such notice without
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success. Local Rule 540(a).
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Notwithstanding the Supplemental Rules and Local Rule 540(a), the Government
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provides sufficient notice if such notice complies with Federal Rule of Civil Procedure 4
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requirements. See Fed. R. Civ. P. 4(n)(1) (when a federal statute authorizes forfeiture, "[n]otice
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to claimants of the property shall then be sent in the manner provided by statute or by service of a
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summons under this rule").
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Here, the Government personally served Mireya Vargas and Jorge Vargas, respectively,
with the complaint, arrest warrant, publication order and other papers regarding this action. (See
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Docs. 14 & 17.) The Government notes that the Defendant Property was seized from and is
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legally registered to Jorge Vargas. (Doc. 21 at 8.) Thus, Mireya Vargas and Jorge Vargas are the
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only claimants requiring personal service. In sum, no notice issues arise as to the Defendant
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Property’s forfeiture.
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Failure to File Claim or Answer
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The Government contends that this Court’s clerk properly entered default against Mireya
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Vargas and Jorge Vargas. (Doc. 21 at 9.) Supplemental Rule G(5) addresses responsive
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pleadings in civil forfeiture actions such as this and requires a person who asserts an interest in or
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right against the subject property to file a claim in this Court within thirty-five (35) days after the
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date of service of the Government’s complaint or thirty (30) days after final publication of
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newspaper notice. Supplemental Rules G(4)(b) & G(5). Failure to comply with procedural
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requirements for opposing the forfeiture precludes a person from establishing standing as a party
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to a forfeiture action. United States v. Real Property, 135 F.3d at 1317.
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As outlined above, the Government personally served Mireya Vargas and Jorge Vargas
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with copies of the complaint, arrest warrant, publication order and other papers related to this
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action on November 23, 2010, and April 11, 2011, respectively.
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More than thirty days have passed since completion of publication notice and more than
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thirty-five days have passed since service of the complaint on Mireya Vargas and Jorge Vargas.
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This Court’s clerk properly entered defaults upon failure of the potential claimants to respond to
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the Government’s complaint and notices.
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Default Judgment
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The Government seeks judgment against the interests of Mireya Vargas and Jorge Vargas
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and final forfeiture judgment to vest in the Government all right, title and interest in the
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Defendant Property. (Doc. 21 at 9-10.) The Supplemental Rules do not provide a procedure to
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seek default judgment in an action in rem. Supplemental Rule A provides: “The Federal Rules of
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Civil Procedure also apply to the foregoing proceedings except to the extent that they are
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inconsistent with these Supplemental Rules.”
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Pursuant to the Federal Rules of Civil Procedure, default entry is a prerequisite to default
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judgment. Federal Rules of Civil Procedure, Rule 55(a) governs entry of default: “When a party
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against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,
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and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”
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Generally, the default entered by the clerk establishes a defendant’s liability:
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Rule 55 gives the court considerable leeway as to what it may require
as a prerequisite to the entry of a default judgment. The general rule
of law is that upon default the factual allegations of the complaint,
except those relating to the amount of damages, will be taken as true.
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Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-918 (9th Cir. 1987) (internal citations
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& quotation marks omitted).
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As noted above, the Government properly obtained default entries against the interests of
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Mireya Vargas and Jorge Vargas. There is no impediment to default judgment sought by the
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Government as to them. The Government properly seeks judgment against the interests of the
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entire world, that is, a final forfeiture judgment to vest in the Government all right, title and
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interest in the defendant currency. “A judgment in rem affects the interests of all persons in
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designated property . . .. [T]he plaintiff is seeking to secure a pre-existing claim in the subject
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property and to extinguish or establish the nonexistence of similar interests of particular
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persons.” Hanson v. Denckla, 357 U.S. 235, 246, n.12, 78 S. Ct. 1228 (1958).
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In light of the defaults, a final forfeiture judgment is in order for the Government.
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RECOMMENDATIONS AND ORDER
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For the reasons discussed above, this Court RECOMMENDS to:
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1.
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GRANT Plaintiff United States of America default judgment against the interests
of Mireya Vargas and Jorge Vargas in the Defendant Property;
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2.
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ENTER final forfeiture judgment to vest in Plaintiff United States of America all
right, title and interest in the Defendant Property; and
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ORDER Plaintiff United States of America, within ten (10) days of service of an
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order adopting the findings and recommendations, to submit a proposed default
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and final forfeiture judgment consistent with the findings and recommendations
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and order adopting them.
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These findings and recommendations are submitted to the district judge assigned to this
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action, pursuant to Title 28 of the United States Code section 636(b)(1)(B) and this Court’s Local
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Rule 304. Within fifteen (15) days of service of this recommendation, any party may file written
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objections to these findings and recommendations with the Court and serve a copy on all parties.
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Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The district judge will review the magistrate judge’s findings and
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recommendations pursuant to Title 28 of the United States Code section 636(b)(1)(C). The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
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July 21, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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