United States of America v. Funds in the amount of $13,946

Filing 21

WRITTEN Opinion entered by the Honorable Virginia M. Kendall on 9/27/2011:As such, the Default Decree and Forfeiture Order was entered after Jaime received reasonable and actual notice and therefore his request to vacate that order is denied. Entered by the Honorable Virginia M. Kendall on 9/27/2011. Mailed notice(tsa, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Virginia M. Kendall

CASE NUMBER

10 C 3842

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

9/27/2011

United States of America vs. $13, 946.00

DOCKET ENTRY TEXT

As such, the Default Decree and Forfeiture Order was entered after Jaime received reasonable and actual
notice and therefore his request to vacate that order is denied.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
On August 17, 2010, this Court entered a Default Decree of Forfeiture in the amount of $13,946. The
funds were seized from Ryan Jaime’s apartment and pants’ pocket as part of a federal search that occurred on
October 13, 2009. Four months after the search, on February 23, 2010, Jaime pled guilty to violating one count
of the possession with the intent to distribute a controlled substance in violation of 21 U.S.C. § 846 before
District Judge Suzanne Conlon, and was subsequently sentenced to 63 months imprisonment. (Case 1:09-cr00836, Doc. 24.) Subsequent to the criminal matter, the United States filed a complaint seeking forfeiture of the
funds pursuant to 21 U.S.C. § 881(a)(6) which this Court granted. Nearly one year later, Jaime now moves the
Court to vacate the judgment of default claiming that he did not receive “actual” notice of the forfeiture
proceedings. Although Jaime does not state under what rule he is filing, the Court construes it as a claim
pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure. Rule 60(b) permits a court to relieve a party
from a final judgment for a number of enumerated reasons, including relief from a final judgment if “the
judgment is void.” Fed.R.Civ.P. 60(b)(4). Rule 60(b) relief is an extraordinary remedy which is granted only in
exceptional circumstances. McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000).
In his initial one-page motion, Jaime claimed that he did not receive notice of the motion at the Chicago
Metropolitan Correctional Center (“MCC Chicago”) where he was housed at the time. In its response, the
Government provided him with the records that showed that the notice was sent to the MCC Chicago. In
response, Jaime stated that he was no longer housed at the MCC Chicago at that time and had been moved to a
correctional facility in Terre Haute, Indiana. In reply, the Government agreed that Jaime had in fact been moved,
but provided records that showed that Jaime had received notice five days after being moved.
The records reveal the following: the Government sent notice to Jaime, the only known claimant to the
funds, at the Bureau of Prisons at the Chicago Metropolitan Correctional Center by certified mail. (Doc. 15 at
¶ 3; Doc. 15-1; Doc. 15-2.) The certified log book and a supporting affidavit show that on June 24, 2010, the
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STATEMENT
certified mailing was received at MCC Chicago. (Doc. 19 at ¶ 3; Doc. 19-1.) Both the Government and Jaime
now agree that on that date Jaime was no longer in custody at MCC Chicago and had been transferred to the
Federal Correctional Complex in Terre Haute, Indiana (“FCC Terre Haute”) on May 20, 2011. (Doc. 19 at ¶ 1.)
The certified log book kept at MCC Chicago, as well as the supporting affidavit, also show that MCC Chicago
forwarded the mailing to FCC Terre Haute, by certified mail, on the same day it was received. (Doc. 19 at ¶¶
3-4; Doc. 19-2.) An affidavit from the Correctional System Supervisor at FCC Terre Haute evidences that the
forwarded certified mailing was receive for Jaime at FCC Terre Haute on June 29, 2010. (Doc. 19 at ¶ 4; Doc.
19-2.) This affidavit also shows that on that date the certified mailing was delivered to Jaime, as evidenced by
his signing for the certified mailing. (Doc. 19 at ¶ 4; Doc. 19-2.)
In addition to sending notice to Jaime, and pursuant to Rule G(4)(a) of the Supplemental Rules for
Admiralty and Maritime Claims for Forfeiture Actions, the United States posted notice of the forfeiture action
on an official government internet site on June 23, 2010. (Doc. 9 at ¶ 5.) This notice was posted for 30
consecutive days, ending July 22, 2010. The post directed that any claim be filed within 30 days of notice or the
last date of publication and any answers be filed within 20 days of the filing of the claim. No claim or answer
was filed as of August 12, 2010, and the time for filing such a claim, answer or other responsive pleading had
expired. (Doc. 9 at ¶ 5-7.) At that time the Government moved for an entry of default in this Court. (Doc. 9.)
On August 17, 2010, the Court entered the Default Decree of Forfeiture against the funds, finding that
the funds were furnished and intended to be furnished in exchange for a controlled substance, were the proceeds
from the sale of a controlled substance, and were monies used and intended to be used to facilitate narcotics
trafficking, in violation of the Controlled Substances Act. (Doc. 13.) This Court further found that process was
duly served and notice adequately published and that the funds were therefore forfeitable to the United States
pursuant to 21 U.S.C § 881(a)(6). (Doc. 13.)
Although he claims that he never received notice of the forfeiture of the funds, on October 26, 2010,
Jaime filed a Rule 41(g) motion before Judge Conlon for return of the funds. (Case 1:09-cr-00836 Doc. 26.) On
December 22, 2010, Judge Conlon denied Jaime’s motion, citing to this Court’s prior finding that notice to
potential claimants had been sufficiently made. (Case 1:09-cr-00836 Doc. 29.) The Government points out, and
it is worth noting, that in his motion before Judge Conlon Jaime did not make any mention of his supposed lack
of notice of the forfeiture proceedings. It was not until July 26, 2011, when Jaime filed this Motion to Vacate
Judgment, that he ever raised the issue of notice. (Doc. 14.)
The federal government is empowered to seek forfeiture of “all moneys, negotiable instruments,
securities, or other things of value furnished or intended to be furnished by any person in exchange for a
controlled substance,” in addition to “all proceeds traceable to such an exchange.” 21 U.S.C. § 881(a)(6); see
also, Lobzun v. United States, 422 F.3d 503 (7th Cir. 2005). The notice procedures with which the government
must comply in a forfeiture action for property valued at $500,000 or less are set forth at 19 U.S.C. §§ 16071609. The statute requires the government to do two things. First, the government must send “written notice of
the seizure together with information on the applicable procedures...to each party who appears to have an interest
in the seized article.” 19 U.S.C. § 1607(a). Second, the government must also publish notice of the seizure and
intent to forfeit the property for at least three weeks in a publication “of general circulation in the judicial district”
where the forfeiture proceeding is brought. Id. These requirements, though statutory in nature, emanate from
the constitutional guarantee that “no person shall...be deprived of life, liberty or property, without due process
of law...” U.S. Const. Amend. V. Jaime’s attack here is centered on the former requirement insofar as he
contends that he did not receive actual notice of the forfeiture proceedings.
In a forfeiture action, however, due process requires the government to make notice that is reasonably
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STATEMENT
calculated, under the circumstances, to apprise interested persons of the pendency of the proceedings. Chairez
v. United States, 355 F.3d 1099, 1101 (7th Cir. 2004) (citing Dusenbery v. United States, 534 U.S. 161 (2002)).
Due process does not require proof of actual notice. Id. Certified mail “has long been considered an acceptable
means to provide notice,” and courts need not inquire into the details of internal prison mail systems or
distribution processes in order to satisfy due process. Id. at 1102; see also, Dusenbery, 534 U.S. at 169.
Furthermore, the Seventh Circuit has declined to impose on the government any kind of affirmative duty to seek
out claimants even in situations in which its initial notice is returned undeliverable. Chairez, 355 F.3d at 1102.
(citing Garcia v. Meza, 235 F.3d 287, 291) (7th Cir. 2000)). Instead, in order to ascertain whether the
government provided notice that was reasonably calculated to apprise the interested parties of the forfeiture
proceeding, the Seventh Circuit requires a case specific inquiry that takes into consideration all the circumstances
of an individual case. Id.
Although Jaime denies that he received notice, it is clear that the government took all reasonably
calculated steps to ensure that notice was made to Jaime. Even though the records presented to the Court show
that Jaime received actual notice at the facility in Terre Haute, whether he received the certified letter is
immaterial; all that was legally required of the government was a reasonable effort to apprise Jaime of the
pendency of the forfeiture action. The United States Attorney sent notice by certified mail to Jaime at MCC
Chicago and it was subsequently forwarded to the FCC Terre Haute, within days of the original notice. The
Government also posted the notice on the internet. These reasonable steps by the government ensured that notice
was tendered and the records reflect that Jaime in fact received actual notice of the forfeiture proceedings.
Jaime’s own actions within the litigation further reflect his awareness of the proceedings as shown by his motion
to seek return of the funds before Judge Conlon.
As such, the Default Decree and Forfeiture Order was entered after Jaime received reasonable and actual
notice and therefore his request to vacate that order is denied.

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