Franco v. United States Of America

Filing 20

MEMORANDUM AND ORDER. The government's motion for dismissal is granted and petitioner's motion is denied. Granting 6 Motion to Dismiss; Denying 14 Motion for an order pursuant to Rule 60(b) and the Administrative Procedure Act 5 U.S.Ca. section 701(a); Denying 1 Motion for Return of Property. (Signed by Judge Lawrence M. McKenna on 6/8/11) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
BIENVENIDO FRANCO,

:
Petitioner,

:

09 Civ. 7231 (LMM)

:

MEMORANDUM AND ORDER

- v UNITED STATES OF AMERICA,

:

Respondent.

:

-----------------------------------x
McKENNA, D.J.
1.
Petitioner Bienvenido Franco was convicted in 2003 of
conspiring to distribute and to possess with intent to distribute,
cocaine, in violation of 21 U.S.C. § 846. (Judgment, Aug. 22, 2003
(Ward Decl., Nov. 4, 2009, Ex. 3).)

At the time of his arrest in

2000, agents of the Drug Enforcement Administration (“DEA”) seized
currency in the amounts of $2,809 (Gov’t Mem., Nov. 4, 2009, at 5),
and $43,143 (id. at 7), from, respectively, his person and his
place of residence.1

1

Petitioner asserts the seizure of slightly smaller amounts of
currency, $2,803 and $41,000 (Mot. for Return of Seized Property,
Apr. 28, 2009, at 2.) The Court accepts the government’s amounts.
Petitioner also claims that miscellaneous personal property of his
girlfriend was seized on the same occasion. (Id.)

2.
21 U.S.C. § 881(a)(6) allows the government to seize and
forfeit any item of value furnished or intended to be furnished in
exchange for a controlled substance and all proceeds of such an
exchange.

Where the value of the seized property is less than

$500,000 (as here), an administrative forfeiture proceeding is
authorized.

19 U.S.C. § 1607.

In an administrative forfeiture

proceeding:
Upon the seizure of property intended for
forfeiture, proper notice to this effect must be
provided “to each party who appears to have an
interest in the seized article.”
19 U.S.C.
§ 1607(a); see 21 U.S.C. § 881(d). Once properly
noticed, an interested party has twenty days to
contest the forfeiture by filing a claim of
interest with the seizing entity. See 19 U.S.C. §
1608.
Doing so terminates the administrative
forfeiture and converts the process into a judicial
forfeiture.
See 19 U.S.C. §§ 1603(b), 1608; 21
U.S.C. § 881(d).
Otherwise, the property seized
shall be deemed forfeited at the end of twenty-day
period. See 19 U.S.C. § 1609.
United States v. Arthur, 263 F. Supp. 2d 703, 704-05 (S.D.N.Y.
2003) (citation omitted).
3.
Petitioner, pro se, moves for the return of the currency
and the personal property (Docket No. 1), which motion is construed
to be a motion under Fed. R. Crim. P. 41(g).

“A Rule 41(g) motion

that is brought after the criminal proceeding is over [as here] is

2

treated as a civil equitable action.”

Diaz v. United States, 517

F.3d 608, 610 (2d Cir. 2008) (citations omitted).
The government moves under Fed. R. Civ. P. 12(b)(1) and
12(b)(6) for dismissal of the complaint.

(Docket Nos. 5 & 6.)

Petitioner, in response, moves pursuant to Fed. R. Civ.
P. 60(b) and 5 U.S.C. § 701 for invalidation of the administrative
forfeiture proceeding relating to the currency.
The
submissions.

Court

liberally

construes

(Docket No. 14.)

petitioner’s

pro

se

Diaz, 517 F.3d at 613.
4.

In

the

present

case,

the

seizing

agency,

the

DEA,

attempted to give petitioner notice at several addresses where, the
Court accepts arguendo, petitioner was not, at the relevant time,
residing.
Notices of the seizures were caused by the DEA to be
published in the Wall Street Journal, on March 20 and 27, and
April 3, 2000 (Hieronymus Decl., Nov. 2, 2009, ¶¶ 4(g) & 5(d)).
Written

notices

were

sent

to

petitioner

at

the

Metropolitan

Correctional Center (“MCC”) in New York, certified mail, return
receipt

requested,

in

the

case

of

the

$2,809

forfeiture

on

April 19, 2000 (id. ¶ 5(e)), and in the case of the $43,143
forfeiture on April 25, 2000.

(Id. ¶ 4(h).)

3

Receipt of both

notices was acknowledged by MCC by a signature of an individual.
(Id. ¶¶ 5(e) & 4(h).)
Petitioner argues, as to the notice sent to MCC on
April 25, 2000, that he personally did not receive it.
in Opp., Nov. 23, 2009, at 9-10.)

(Pl. Mem.

But that, in the present

context, is not relevant, because the DEA’s sending of the notice
to petitioner at MCC was an effort “reasonably calculated” to
apprise petitioner of the forfeiture proceedings, and his rights
therein:

due process was observed, and the notice was legally

effective. Dusenbery v. United States, 534 U.S. 161, 170-71 (2002)
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
315 (1950)).

See also Arthur, 263 F. Supp. 2d at 705.

Petitioner

does not state that the April 19, 2000 notice did not reach him at
MCC.
“A district court’s jurisdiction to review a forfeiture
proceeding ‘is limited to determining whether the agency followed
the proper procedural safeguards when it declared [plaintiff’s]
property forfeited.’”

Reyes v. United States Drug Enforcement

Administration, 217 Fed. App’x 90 (2d Cir. 2007) (quoting United
States v. One 1987 Jeep Wrangler, 972 F.2d 472, 480 (2d Cir.
1992)). Here, the government has shown that it followed the proper
procedural safeguards, and that petitioner did not submit a timely
claim.
4

fei ture

removes

res

ction," leaving t

Court

Since "[a] n administrat
court's in rem juri

dist

from

ther \\the for

only the issue

was

defi

edural

ent,1f

263 F. Supp. 2d at 705 (citations omitted), and since the
Court

ned

has

deficient, the

that

Co~rt's

the

forfeiture

ty

enal

to

its possess

upon be

address to which to send it.

*
The
~it

procedurally

rl::riend's property is

having

the

not

jurisdiction is exhausted.

1
.
Petitioner's C..La::..m as te his

moot,

was

return all

such non-drug

suppl

with an

(Gov't Mem., Nev. 4, 2009, at 2-3.)

*

*

government's motion ::or dismissal

is

granted and

r's motion is deni

SO ORDERED.
Dated:

June

f{,

2011

Lawrence M. McKenna
U.S.D.J.

5