United States of America v. $105,332.00 in U.S. Currency

Filing 19

ORDER denying 15 Motion for return of property and temporary injunction.(Written Opinion). Signed by Senior Judge David S. Doty on 11/15/2011. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 10-4396(DSD/SER)
United States of America,
Plaintiff,
ORDER

v.
$105,332.00 in U.S. Currency,
Defendant.

This matter is before the court upon the pro se motion styled
as a Rule 41(g) motion to return property and for temporary
injunction by movant Flenear Jefferson.

Based on a review of the

file, record and proceedings herein, and for the following reasons,
the court denies the motion.

BACKGROUND
This civil-forfeiture dispute arises from the seizure of
$105,332.00 in United States currency (the Currency) by the St.
Paul Police Department (SPPD). On March 4, 2006, two SPPD officers
were dispatched to an apartment after receiving a complaint that it
was being used to sell drugs.

See McCarthy Aff. ¶ 3.

The officers

arrested Jefferson and three others, and seized the Currency.1

See

id. ¶¶ 4-7.

1

Jefferson pleaded guilty to conspiracy to distribute and
possess with intent to distribute in excess of five kilograms of
cocaine and in excess of fifty grams of cocaine base and received
a term of imprisonment of 190 months. See McCarthy Aff. ¶ 10.

The Drug and Enforcement Administration adopted SPPD’s seizure
of the Currency and instituted a civil forfeiture proceeding.

The

government published notice of the civil forfeiture for at least
thirty days beginning on October 30, 2010, on www.forfeiture.gov.
See Saxena Decl., ECF No. 5.

On November 30, 2010, the government

sent Jefferson a notice of judicial forfeiture proceedings, the
complaint for forfeiture in rem, the affidavit of Sergeant Timothy
M. McCarthy and a copy of the warrant of arrest and notice in rem
(collectively, Notice of Forfeiture). See Saxena Decl. ¶ 5(b), ECF
No. 10.

The notices were sent by certified mail to Jefferson’s

place of incarceration, and on December 6, 2010, delivery was
confirmed.

See Weston Decl. Ex. 2, ECF No. 17.

The notices

advised Fletcher to file a verified claim within thirty-five days
and to file an answer to the complaint for forfeiture in rem within
twenty days.

See Saxena Decl. ¶ 5(b), ECF No. 10.

No claims to the Currency were received, and the government
moved for a default judgment on March 11, 2011.

See ECF No. 8.

The court granted the motion on March 15, 2011.

See ECF No. 13.

On July 15, 2011, the government received a letter from Jefferson
claiming

ownership

of

the

Currency,

forfeiture was not in accordance with law.

and

ECF No. 17.

alleging

that

the

See Weston Decl. Ex. 3,

The government responded to Jefferson’s letter,

explaining that a default judgment was entered, because no timely
claim was made to the Currency.

2

See ECF. No. 15, at 8-9.

In

response, Jefferson filed the present motion for return of the
property and for temporary injunction.

DISCUSSION
Federal Rule of Criminal Procedure 41(g) provides that “[a]
person aggrieved by an unlawful search and seizure of property ...
may move for the property’s return.”

Jefferson argues that he is

entitled to relief under Rule 41(g).

The government argues that

Rule 41(g) is inapposite.
A Rule 41(g) motion is properly denied when, among other
reasons, “the property ... [was] subject to forfeiture.”

United

States v. Vanhorn, 296 F.3d 713, 719 (8th Cir. 2002) (citation
omitted).

Once a forfeiture is complete, a Rule 41(g) motion

cannot be used to attack the proceeding collaterally.

See Cole v.

United States (In re US Currency, $844,520.00), 136 F.3d 581, 582
(8th Cir. 1998) (per curiam); see also Fed. R. Crim. P. 1(a)(5)(B)
(explaining that criminal rules do not apply to “a civil property
forfeiture for violating a federal statute”). Therefore, dismissal
of Jefferson’s Rule 41(g) motion is warranted.
The court may, however, examine a due process challenge to a
forfeiture. See United States v. Litchfield, 122 F. App’x 294, 295
(8th Cir. 2005) (per curiam) (citations omitted).

3

Jefferson

alleges that the forfeiture was contrary to law.2

The government

argues that it complied with 21 U.S.C. § 881(a)(6) and Rule G of
the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions (Supplemental Rules), and that the court should
not vacate its default judgment.
Under the Supplemental Rules, the notice requirement “to a
[known] potential claimant who is incarcerated must be sent to the
place of incarceration.”
G(4)(b)(iii)(C).

See Fed. R. Civ. P., Adm. Supp. R.

Mailing notice creates a presumption of delivery

that is rebutted only if the prisoner shows that the prison’s
internal mail-distribution procedures are not reasonably calculated
to provide notice.

See Nunley v. Dep’t of Justice, 425 F.3d 1132,

1136 (8th Cir. 2005).
In the present case, the government provided Jefferson notice
on

forfeiture.gov

and

mailed

the

Notice

of

Forfeiture

to

Jefferson’s place of incarceration, confirmed by return receipt.
Jefferson does not allege improper mail-distribution procedures.
In fact, he included the notice with his motion.

2

See ECF No. 15,

The court liberally construes the pro se pleading as
claiming a violation of due process. See United States v. Woodall,
12 F.3d 791, 794 n.1 (8th Cir. 1993), abrogated on other grounds by
Dusenbery v. United States, 534 U.S. 161, 172-73 (2002).
4

at 5-7.

Therefore, dismissal of Jefferson’s due process claim is

warranted.

Accordingly, based on the above, IT IS HEREBY ORDERED

that the motion [ECF No. 15] is denied.
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated:

November 15, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court

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