UNITED STATES OF AMERICA v. $193,692.39 IN UNITED STATES CURRENCY et al
OPINION/ORDER that by January 20, 2015, Claimant shall file with this Court a Claim and Answer that conforms to all applicable statutes and rules. By January 20, 2015. Claimant shall serve Plaintiff the above mentioned Claim and Answer in accordance with all applicable statutes and rules; administratively terminating, w/out prejudice 13 Motion to Strike. Signed by Judge Claire C. Cecchi on 12/17/14. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civil Action No.: 12-07134 (CCC)
OPINION AND ORDER
$193,692.39 IN UNITED STATES
CURRENCY; and ONE 2008 GMC
SIERRA, VIN: 1GTHK23698F141912
Defendants in rem.
CECCHI, District Judge.
THIS MATTER comes before the Court on Plaintiff’s Motion to Strike the Claim and
Answer, pursuant to Supplemental Rule G(8)(c)(i), for Claimant’s failure to comply with
Supplemental Rule G(5) for Asset Forfeiture Actions In Rem. (ECF No. 13). The Court has
considered the parties’ submissions. For the reasons set forth below, the Court will allow Claimant
forty-five (45) days to file an amended Claim and Answer.
On March 30, 2012, Passaic County, New Jersey law enforcement officers arrested
Claimant Carlos Montano (“Claimant”) on suspicion of distribution of narcotics. (Compi, at ¶ 13,
ECF No, 1). Law enforcement officers searched the GMC Sierra at issue pursuant to a search
The Court notes that because the submission of Claimant’s Answer is at issue, alleged
facts are taken only from Plaintiff’s pleading and briefs and are used solely for the
purposes of providing background information.
warrant. (Compi. at ¶ 14). During the search of the vehicle, law enforcement officers found bank
records in the vehicle that referenced a particular account at Bank of America, (j) The Honorable
Marilyn C. Clark, New Jersey State Superior Court Judge in Passaic County, issued a seizure order
for the contents of the Bank of America account. (Compi. at ¶ 15). As a result of Judge Clark’s
order, a total of $193,893.24 in United States currency was seized from the bank account. (Compl.
16). On January 10, 2014, a New Jersey State Court sentenced Claimant to a maximum of
five years in prison for conspiracy to manufacture and distribute a controlled substance. (P1.’s Br.
in Supp. at 2-3, ECF No. 13).
Pursuant to the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 18 U.S.C.
çq,, the United States Drug Enforcement Agency (the “DEA”) adopted the seized currency and
GMC Sierra for the commencement of administrative forfeiture proceedings. (Compl. at
The DEA sent a Notice of Seizure by certified mail, return receipt requested to Claimant’s address.
On or about August 20, 2012, the DEA received an administrative claim from Claimant through
his counsel Frank J. Sciro, Esq. (Compi. at
20). As a result of Claimant’s objection to the
administrative forfeiture, the United States filed a Verified Complaint for Forfeiture In Rem (the
“Complaint”) in the instant action on November 16, 2012. (ECF No. 1). On November 19, 2012,
the United States filed a Warrant for Arrest In Rem. (ECF No. 2). The United States also filed the
Notice of Forfeiture on December 12, 2012 and served the same certified mail, return receipt
requested on Frank J. Sciro, Esq. in his capacity as counsel for Claimant. (ECF No. 3).
On January i 1, 2013, Frank J. Sciro, Esq. (“Mr. Sciro”) filed a document in the instant
action entitled “Conforming Claim” (the “Claim”) as well as an Answer. (ECF Nos. 4, 5). Plaintiff
now moves to strike the Claim and Answer for failure to comply with Supplemental Rule G(5),
arguing primarily that Claimant’s failure to comply with the rule deprives Claimant of standing,
which subsequently deprives this Court ofjurisdiction. (Pl.’s Br. in Supp.).
The issue of standing in federal courts is jurisdictional and not subject to waiver. See
generally Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174. 135 L.Ed.2d 606 (1996). Standing is
also open to review at every stage of litigation and the Court may raise the issue sua sponte. See
generally Nat’l Org. of Women v. Scheidler, 510 U.S. 249 (1994); see also U.S. v. $8,221,877.16
in U.S. Currency, 330 F.3d 141, 150 n. 9 (3d Cir. 2003). To stand before a district court and
contest a forfeiture, a claimant must meet both statutory and Article Ill standing requirements.
U.S. v. $487,825.000 in U.S. Currency, 484 F.3d 662, 664 (3d Cir. 2007), as amended (May 14,
2007). Statutory standing in a forfeiture proceeding refers to the filing requirements in 18 U.S.C.
§ 983(a)(3)-(4) and the corresponding Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions (“Supplemental Rules”). See U.S. v. $39,557.00, More or Less, in U.S.
Currency, 683 F. Supp. 2d 335, 338 (D.N.J. 2010). “Statutory standing is a threshold issue that
determines whether a party is properly before the court.” U.S. v. $8,221.877.16 in U.S. Currency,
330 F.3d 141, 150, n. 9 (3d Cir. 2003). Should the court find that a claimant has statutory standing,
the next inquiry is whether the claimant has perfected Article III standing.
To perfect statutory standing in a forfeiture action, a potential claimant must comply with
both the statutory and procedural requirements proscribed in 18 US.C.
corresponding Supplemental Rules. In relevant part. 18 US.C.
§ 983(a)(4)(A) and the
§ 983(a)(4)(A) states:
In any case in which the Government files in the appropriate LTnited
States district court a complaint for forfeiture of property. any
person claiming an interest in the seized property may file a claim
asserting such person’s interest in the property in the manner set
forth in the [Supplemental Rules]. except that such claim may be
filed not later than 30 days after the date of service of the
Government’s complaint or, as applicable, not later than 30 days
after the date of final publication of notice of the filing of the
Supplemental Rule G(5)(a)(i) states:
A person who asserts an interest in the defendant property may
contest the forfeiture by filing a claim in the court where the action
is pending. The claim must: (A) identify the specific property
claimed; (B) identify the claimant and state the claimant’s interest
in the property; (C) be signed by the claimant tinder penally of
perjuiy; and (D) be served on the government attorney designated
under Rule G(4)(a)(ii)(C) or (b)(ii)(D).
The Third Circuit and the District of New Jersey have held that, in a forfeiture case where
a potential claimant fails to comply with the statutory requirements, a district court has the
discretion to strike the claim. See, e.g. U.S. v. $487,825 in U.S. Currency, 484 F.3d 662, 665-66
(3d Cir. 2007) (holding the district court did not abuse its discretion by granting a default judgment
to the Government because the claimant did not meet the statutory requirements); see also United
States v. $140,000.00 in U.S. Currency, No. 09-cv-3516, 2010 WL 1704966, at *3 (D.N.J. Apr.
26, 2010) (striking a potential claimant’s claim because it was both untimely and deficient in
content). In $487,825, the Third Circuit emphasized that “[t]he most significant requirement is
that the claimant must timely file a verified [claim]” adhering to the requirements of the
Supplemental Rule. 484 F.3d at 664.
This requirement, the court emphasized, ‘is no mere
procedural technicality” and “forfeiture claimants must strictly adhere to the filing requirements
to perfect standing” Id. at 665 (internal quotations omitted).
Plaintiff argues that Claimant failed to file a claim that conforms to the Supplemental Rules
because Claimant’s submission, (ECF No. 4), was signed by his attorney. Mr. Sciro, and not
Claimant himself as required by Supplemental Rule G(5)(a)(i)(C). (Pl.’s Br, in Supp. at 14). For
support. Plaintiff cites to a Sixth Circuit case affirming the district court’s decision to uphold the
administrative forfeiture because, in part, the potential claimant’s purported “claim” was written
and signed by an attorney and not “by a person with personal knowledge of the facts alleged
therein.” (Pl.’s Br. in Supp. at 13 (quoting In re Seizure of S 143,265.78 from Checking Account
No. 1851349546 & 528,687.40 from Checking Account No. 1080022185, 384 F. App’x 471, 475
(6th Cir. 2010)). Plaintiff does not cite to any authority mandating striking of a claim for failure
to comply with the Supplemental Rules. Instead, the Third Circuit has held that it is within the
district court’s discretion to strike a claim for failure to comply with the Supplemental Rules. $.çç,,
çg $487,825.00, F.3d at 665.
In response submitted via Certification by Claimant’s attorney, Mr. Sciro concedes
Claimant did not sign the Claim as required by Supplemental Rule G(5)(a)(i)(C) (Clmt. Opp. at ¶
6. ECF No. 15). Mr. Sciro does not argue that the submitted Claim conforms to the applicable
statute and rules as discussed above. (Id.) Furthermore, Mr. Sciro does not address whether this
Court has the discretion to grant Plaintiffs motion in light of the Claim’s deficiencies. (Id.)
Instead, Mr. Sciro appears to argue that Claimant had good cause to file a non-conforming Claim.
Mr. Sciro certifies that prior to filing the Claim, Mr. Sciro had been unable to locate or contact
Claimant because Claimant had “traveled out of state” and his whereabouts were unknown. (Id. at
The Court finds that while Claimant failed to comply with the Supplemental Rules, the
circumstances of this case are not so egregious so as to warrant striking the Claim and Answer.
See, çg. U.S. v, $39,557.00. More or Less, in U.S. Currency, No, 07cv-00449 (D.NJ. Dec. 10,
2007) (order denying Government’s motion to strike potential claimant’s untimely claim). Mr.
Sciro’s Certification on behalf of Claimant—indicating Claimant was unavailable to sign the
Claim—shows good cause for Claimant’s inability to comply with the Supplemental Rules at the
time. Furthermore. I\r. Sciro exercised his judgment as an attorney to file the Claim with the
Court before the deadline passed in an attempt to prevent prejudice to his client. See U.S. v. U.S.
Currency in the Amount of $103,387.27, 863 F.2d 555, 561-62 (7th Cir. 1988) (“[A]mendments
should be liberally permitted to add verifications to claims originally lacking them”).
Plaintiff has also not shown that allowing Claimant a short and finite opportunity to amend
his Claim and Answer would prejudice Plaintiff. See U.S. v. $125,938.62, 370 F.3d 1325, 132930(11th Cir. 2004) (stating risk of prejudice to the Government is a factor in determining whether
to allow an amended claim). The Court recognizes the potential for false and opportunistic claims
inherent in asset forfeiture cases, see $487,825.00, F.3d at 664-65, and has determined that the
interests of justice and judicial economy warrant granting Claimant time to amend his Claim and
WHEREAS it appears that Claimant did not file a Claim and Answer that conform with
all relevant statutes and rules; and
WHEREAS it appears that Claimant’s attorney, Mr. Sciro, has demonstrated good cause
as to why the submissions were non-conforming; and
WHEREAS the Court finds that the interests of judicial economy would be served by
allowing Claimant thirty (30) days to file an amended Claim and Answer;
IT IS on this 1 7 day of December. 2014
1. By January 20, 2015, Claimant shall file with this Court a Claim and Answer that
conform to all applicable statutes and rules.
2. By January 20, 2015. Claimant shall serve Plaintiff the above mentioned Claim
and Answer in accordance with all applicable statutes and rules.
3. In light of the Court allowing Claimant to refile his Claim and Answer. Plaintiffs
Motion to Strike (ECF No. 13) is hereby administratively terminated, without
prejudice, to allow Claimant time to comply with this Order.
CLAIRE C. CECCHI, U.S.D.J.
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