United States v. 2014 Ford F450 XLT, License Plate: 11855L1; VIN: 1FD0X4GT3EEB09948

Filing 14

FINDINGS and RECOMMENDATIONS Regarding Plaintiff's Ex Parte Application for Default Judgment and Final Judgment of Forfeiture (Doc. 12). Referred to Judge O'Neill; Objections to F&R due within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. signed by Magistrate Judge Barbara A. McAuliffe on 5/11/2017. (Herman, H)

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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.
2014 FORD F450 XLT, LICENSE PLATE:
11855L1; VIN: 1FD0X4GT3EEB09948,

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Defendant.

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No. 1:16-cv-01884-LJO-BAM
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S EX PARTE
APPLICATION FOR DEFAULT JUDGMENT
AND FINAL JUDGMENT OF FORFEITURE
(Doc. 12)
FOURTEEN-DAY DEADLINE

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In this civil forfeiture action, Plaintiff United States of America (“Government” or “Plaintiff”)

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moves for entry of default judgment against the interests of Gerardo Zamora in a 2014 Ford F450

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XLT, License Plate: 11855L1; VIN: 1FD0X4GT3EEB09948 (“Defendant Vehicle”) and entry of a

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final forfeiture judgment to vest in the Government all right, title and interest in the Defendant

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Vehicle. No opposition to the Government’s motion was filed, and the Court took the matter under

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submission pursuant to Local Rule 230(g).
For the reasons set forth below, the Court RECOMMENDS that the Government’s application

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for default judgment and for final judgment of forfeiture be GRANTED.

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FACTUAL BACKGROUND

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This is a civil action in rem to forfeit to the Government a 2014 Ford F450 XLT, License Plate

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Number 11855L1, VIN: 1FD0X4GT3EEB09948 (“Defendant Vehicle”) pursuant to 21 U.S.C. §

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881(a)(4).1 The Defendant Vehicle was seized on June 24, 2016, in Exeter, California.

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On June 24, 2016, at about 12:40 p.m., detectives with the Tulare County Sheriff’s Office

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(“TCSO”) conducted a traffic stop of the Defendant Vehicle at Yokohl Drive in Exeter, California for

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failure to stop at a stop sign in violation of California Vehicle Code § 22450(a). The driver made a

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sharp yield onto the right dirt shoulder of the road and exited the Defendant Vehicle. The driver was

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instructed to re-enter his vehicle. The driver returned to his vehicle but left the driver-side door open.

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As law enforcement approached the Defendant Vehicle, the detective smelled the

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overwhelming odor of marijuana that emitted from the vehicle. The driver of the vehicle was

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contacted and identified as Gerardo Zamora (“Zamora”), who was also the Defendant Vehicle’s

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registered owner. Zamora was instructed to exit his vehicle. Zamora was asked whether he had any

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weapons on his person or anything illegal in his vehicle. Zamora responded that he had 100 pounds of

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weed in his truck and that it was located in the utility compartments from the bed of the Defendant

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Vehicle. Zamora was detained and placed in the backseat of a marked patrol vehicle, and later

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transported to TCSO headquarters to be interviewed.

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Detectives obtained and executed a state search warrant for the Defendant Vehicle. Law

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enforcement located 111 pounds of packaged, processed marijuana in the Defendant Vehicle. The

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individual packages were weighed at approximately one pound each.

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At the TCSO, Zamora was read his Miranda rights and interviewed. When asked whether he

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understood his rights, Zamora stated, “Yes, I do.” He then went on to make statements admitting to

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knowingly transporting the marijuana found in the Defendant Vehicle. When asked why he would

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involve himself with the transportation of marijuana, Zamora stated that he believed what he was

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doing was legal and that he needed the extra money. Zamora stated that he expected to be paid $25.00

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per pound of marijuana transported, for a total of about $2,775.00.

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The factual background is stated as alleged in the Government’s verified complaint. (Doc. 1.)

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Zamora was arrested and booked on state criminal charges for violation of California Health &

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Safety Code §§ 11360 and 11359 – Transportation, Importation, or Sale, of Marijuana and Possession

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of Marijuana for Sale. Law enforcement seized the Defendant Vehicle.
PROCEDURAL BACKGROUND

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On December 19, 2016, the Government filed its complaint for forfeiture in rem, alleging that

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the Defendant Vehicle was subject to forfeiture to the Government under 21 U.S.C. § 881(a)(4)

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because it constitutes property used, or intended to be used, to transport, or in any manner to facilitate

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the transportation, sale, receipt, possession, or concealment of controlled substance or listed chemical

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in violation of 21 U.S.C. § 841, et seq. On January 3, 2017, based on the allegations of the complaint,

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the Clerk of the Court issued a Warrant for Arrest of Articles In Rem for the Defendant Vehicle.

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(Doc. 3.) The warrant was executed on January 11, 2017. (Doc. 4.)

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According to the Government’s Declaration of Publication, a Notice of Civil Forfeiture was

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published on the official government internet site (www.forfeiture.gov) for thirty days beginning on

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December 31, 2016. (Doc. 5.)

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On January 3, 2017, Gerardo Zamora was served with notice of this action by first class and

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certified mail at his last known business address of Anchor Construction, 1012 E. Clinton Avenue,

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Fresno, California 93704-5630. The certified mail parcel was returned to the U.S. Attorney’s Office

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marked as “UNCLAIMED.” (Doc. 8-1, Declaration of Elise Rodriguez (“Rodriquez Decl.”) at ¶ 5 and

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Ex. A.)

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On January 3, 2017, Gerardo Zamora also was served with notice of this action by first class

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and certified mail at an additional known business address of 1825 W. Clayton Avenue, Fresno,

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California 93706. The certified mail parcel was marked “Return to Sender/No Such Number/Unable

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to Forward” and returned to the U.S. Attorney’s Office. (Doc. 8-1, Rodriguez Decl. at ¶ 6 and Ex. B.)

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Additionally, on January 3, 2017, Gerardo Zamora was served with notice of this action by

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first class and certified mail at an additional known business address of 1823 E. Clayton Avenue,

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Fresno, California 93725-9509. The PS Form 3811 (Domestic Return Receipt) was signed by Taleen

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Megerdichian. (Doc. 8-1, Rodriguez Decl. at ¶ 7 and Ex. C.)

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No claims have been filed by or on behalf of Gerardo Zamora, and on April 6, 2017, the Clerk

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of the Court entered default against Gerardo Zamora. (Doc. 9.) The Government now seeks default

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judgment against Gerardo Zamora and the entry of a final judgment of forfeiture vesting all right, title

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and interest in the Defendant Vehicle to the Government.
DISCUSSION

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As indicated, the Government applies ex parte for the entry of default judgment against the

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interests of the Gerardo Zamora. The Government further applies for the entry of a final judgment of

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forfeiture to vest in the Government all right, title and interest in the Defendant Vehicle.
A. Sufficiency of the Complaint

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The Government contends that the allegations set forth in the Verified Complaint for Forfeiture

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In Rem and the facts cited “provide ample grounds” for forfeiture of the Defendant Vehicle. (Doc. 12

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at p. 5.) A complaint’s sufficiency is a factor to consider when deciding whether to grant default

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judgment. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Property is subject to forfeiture

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if it was used, or was intended to be used, to transport, or in any manner to facilitate the transportation,

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sale, receipt, possession, or concealment of a controlled substance or listed chemical in violation of 21

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U.S.C. § 841, et seq. 21 U.S.C.§ 881(a)(4). The Government’s verified complaint alleges that the

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Defendant Vehicle constitutes property used, or intended to be used, to transport, or in any manner to

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facilitate the transportation, sale, receipt, possession, or concealment of a controlled substance or listed

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chemical, in violation of 21 U.S.C. § 841, et seq.

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The complaint meets the requirements of Rule G of the Supplemental Rules for Admiralty or

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Maritime Claims and Asset Forfeiture Actions, Federal Rules of Civil Procedure, in that it is verified;

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states the grounds for subject matter jurisdiction, in rem jurisdiction, and venue; describes the property

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seized and the circumstance of its seizure; and identifies the relevant statutes. As alleged, the facts set

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forth a sufficient connection between the Defendant Vehicle and its use to facilitate the transportation

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of marijuana for sale. Further, Gerardo Zamora, the registered owner of the Defendant Vehicle,

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admitted to transporting marijuana in exchange for money. (Doc. 1 at ¶¶ 7-10.)

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II.

Notice Requirements

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The Fifth Amendment’s Due Process Clause prohibits the Government from deprivation of

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property without “due process of law.” Individuals whose property interests are at stake are entitled to

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“notice and an opportunity to be heard.” United States v. James Daniel Good Real Property, 510 U.S.

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43, 48, 114 S. Ct. 492 (1993). The Government contends that it provided required notice for the

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forfeiture of the Defendant Currency.

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A.

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Supplemental Rule G(4) sets forth the rules for publication of the notice of action in federal

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Notice by Publication

forfeiture proceedings.

Rule G(4)(a)(iv)(C) provides that in lieu of newspaper publication, the

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Government may publish notice by “posting a notice on an official internet government forfeiture site

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for at least 30 consecutive days.”

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Here,

publication

occurred

on

the

official

internet

government

forfeiture

site

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(www.forfeiture.gov) for 30 consecutive days beginning on December 31, 2016. The Government

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filed its Declaration of Publication on February 1, 2017. (Doc. 5.)

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B.

Personal Notice

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When the Government knows the identity of the property owner, due process requires “the

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Government to make a greater effort to give him notice than otherwise would be mandated” by

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publication. United States v. Real Property, 135 F.3d 1312, 1315 (9th Cir. 1998). In such cases, the

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Government must attempt to provide actual notice by means reasonably calculated under all

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circumstances to apprise the owner of the pendency of the forfeiture action. Dusenbery v. United

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States, 534 U.S. 161, 168 (2002) (quotations omitted). “Reasonable notice, however, requires only

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that the government attempt to provide actual notice; it does not require that the government

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demonstrate that it was successful in providing actual notice.” Mesa Valderrama v. United States, 417

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F.3d 1189, 1197 (11th Cir. 2005).

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Supplemental Rule G(4)(b)(iii)(A) mirrors this requirement, providing for notice to be “sent by

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means reasonably calculated to reach the potential claimant.” Additionally, this Court’s Local Rule

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540 addresses notice to persons known to have an interest in property subject to forfeiture. The rule

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requires that a party seeking default judgment in an action in rem to show to the Court’s satisfaction
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that due notice of the action 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 of a

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law enforcement officer, by personal service on the person having custody prior to its possession by a

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law enforcement agency or officer; and (4) by personal service or certified mail, return receipt

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requested, to every other person who has not appeared in the action and is known to have an interest in

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the property; provided that failure to give actual notice to such other person may be excused upon a

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satisfactory showing of diligent efforts to give such notice without success. Local Rule 540(a).
In this case, the Government attempted to serve the potential claimant with actual notice by

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first class mail and certified mail, return receipt requested, as follows:

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On January 3, 2017, Gerardo Zamora was served with notice of this action by first class and

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certified mail at his last known business address of Anchor Construction, 1012 E. Clinton Avenue,

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Fresno, California 93704-5630. The certified mail parcel was returned to the U.S. Attorney’s Office

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marked as “UNCLAIMED.” (Doc. 8-1, Rodriquez Decl.at ¶ 5 and Ex. A).

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On January 3, 2017, Gerardo Zamora also was served with notice of this action by first class

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and certified mail at an additional known business address of 1825 W. Clayton Avenue, Fresno,

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California 93706. The certified mail parcel was marked “Return to Sender/No Such Number/Unable

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to Forward” and returned to the U.S. Attorney’s Office. (Doc. 8-1, Rodriguez Decl. at ¶ 6 and Ex. B.)

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Additionally, on January 3, 2017, Gerardo Zamora was served with notice of this action by

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first class and certified mail at an additional known business address of 1823 E. Clayton Avenue,

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Fresno, California 93725-9509. The PS Form 3811 (Domestic Return Receipt) was signed by Taleen

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Megerdichian.2 (Doc. 8-1, Rodriguez Decl. at ¶ 7 and Ex. C.)

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The Court finds no notice issues arise as to the Defendant Vehicle’s forfeiture.

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C.

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Supplemental Rule G(5) requires any person who asserts an interest in or right against the

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Defendant Currency to file a claim with the Court within 35 days after service of the Government’s

Failure to File Claim or Answer

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Gerardo Zamora received actual notice of this action because he reportedly contacted the U.S. Attorney’s Office on more
than one occasion seeking additional time to file a claim and answer. Despite being granted extensions of time, Gerardo
Zamora did not file a timely claim or answer. (Doc. 8-1, Rodriguez Decl. at ¶¶ 8-12 and Exs. D and E.)

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complaint or 60 days after the first day of publication on an official internet government forfeiture site.

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Supplemental R. G(4)(b) & (5). Failure to comply with the procedural requirements for opposing the

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forfeiture precludes a person from establishing standing as a party to the forfeiture action. Real

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Property, 135 F.3d at 1317.
There have been no claims filed by or on behalf of Gerardo Zamora with respect to this action.

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The Clerk of Court properly entered default against Gerardo Zamora on April 6, 2017. (Doc. 9.)

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D.

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The Government seeks judgment against the interest of Gerardo Zamora and final forfeiture

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Default Judgment

judgment to vest in the Government all right, title and interest in the Defendant Vehicle.

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Federal Rule of Civil Procedure 55 provides that a court has discretion to enter default

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judgment against a party after the clerk has entered the party’s default. In considering whether to enter

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default judgment, the court considers the following factors: (1) the possibility of prejudice to the

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plaintiff if relief is denied; (2) the merits of plaintiff’s substantive claims; (3) the sufficiency of the

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complaint; (4) the sum of money at stake; (5) the possibility of a dispute concerning material facts; (6)

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whether the default was due to excusable neglect; and (7) the strong policy favoring decisions on the

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merits. See Eitel, 782 F.2d at 1471-72.
Here, the Eitel factors favor the granting of the Government’s ex parte application for default

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judgment.

First, the Government would be prejudiced by the denial of its motion because the

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Government would otherwise have to expend additional time and effort litigating an action in which

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the potential claimant has failed to appear. Second, the Government’s claims appear to have merit.

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Third, as discussed above, the Government has adhered to the procedural requirements of a forfeiture

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action, including the filing of a sufficient complaint. Fourth, the sum of money or value of the

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Defendant Vehicle in dispute here is not substantial enough to warrant the denial of the Government’s

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motion. Fifth, there are no genuine disputes as to any material fact. Sixth, it does not appear that the

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failure of any claimant to answer is due to excusable neglect. And finally, although it is always

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preferable to decide a case on its merits, it is not practicable here where no claimant has appeared to

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oppose the Government’s motion for entry of default judgment.

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CONCLUSION AND RECOMMENDATION

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For the reasons discussed above, it is HEREBY RECOMMENDED as follows:

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1. The Government’s application for default judgment and final judgment of forfeiture be
GRANTED; and

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2. Default judgment be ENTERED against the interest of Gerardo Zamora in the Defendant
Vehicle; and

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3. Final Judgment of Forfeiture be ENTERED vesting in the United States of America all
right, title, and interest in the Defendant Vehicle.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of the

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United States District Court for the Eastern District of California. Within fourteen (14) days after

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being served with these findings and recommendations, any party may file written objections with the

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court and serve a copy on all parties. Such a document should be titled “Objections to Magistrate

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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections within

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the specified time may result in the waiver of the “right to challenge the magistrate’s factual findings”

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on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 11, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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