United States of America v. Miscellaneous Personal Property

Filing 16

ORDER denying 7 Motion for Return of Property; denying 9 Motion for Return of Property; denying 10 Motion for Return of Property; granting 12 Motion to Strike. Signed by Chief Judge James C. Dever III on 10/12/2016. (Briggeman, N.)

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IN THE UNITED STATES DISTRICT COURT . . FOR THE EASTERN DISTRICT OF NORTH CAROLI~A WESTERN DIVISION No. 5:16-CV-120-D UNITED STATES OF ANIERICA, Plaintiff, v. ) ) ) ) ) ORDER ) N.USCELLANEOUSPERSONALPROPERTY,) et al., ) ) Defendants. ) The government seeks the forfeiture of miscellaneous items of personal property seized during the investigation and criminal prosecution of Saiku Barrie ("Barrie") [D.E. 1]. Barrie and others conspired to_commit access device fraud. See id. On June 27,2016, Barrie, appearing pro se, filed a motion opposing the forfeiture and seeking the return of certain property under Federal Ru1e of Criminal Procedure 41(g) [D.E. 7, 9]. On June 27, 2016, the clerk received Barrie's unsigned motion [D.E. 7], and filed it on Ju1y 11, 2016, after receiving a signed copy [D.E. 9]. On Ju1y 19, 2016, Barrie filed another motion opposing the forfeiture and seeking the return of certain property [D.E. 10]. On Ju1y 21, 2016, the government timely responded to Barrie's motions and moved to strike his pleadings [D.E. 12-14]. Barrie did not respond. As explained below, the court denies Barrie's motions and grants the government's motion. Once the government has commenced a forfeiture proceeding, a claimant cannot use a motion for return of property under Federal Ru1e of Criminal Procedure 41 (g) to challenge probable cause for seizure or any other aspect of the forfeiture case. See Supplept.ental Ru1e 0(1) for Admiralty or Maritime Claims and Asset Forfeiture Actions. Rather, to contest the forfeiture, a claimant must file a proper and timely claim under Supplemental Ru1e G(S)(a)(i) for Admiralty or Maritime Claims and Asset Forfeiture Actions. See,~' Ibarra v. United States. 120 F.3d 472,475- 76 (4th Cir. 1997). Furthermore, although Barrie contests the forfeiture of certain property, his pleadings do not state proper claims under Rule G(5)(a)(i) ofthe Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (hereinafter, the "Supplemental Rules") for at least three reasons. First, to comply with Supplemental Rule G, a claimant must "identify the specific property claimed." Supplemental Rule G(5)(a)(i)(A). Barrie's claims do not. Cf. [D.E. 7, 9, 10]. Accordingly, Barrie's claim fails to meet Supplemental Rule G's specificity requirement. Second, Barrie's claims do not "state... [his] interest in the property." Supplemental Rule G(5)(a)(i)(B). Third, Barrie's claims are not "signed by the claimant under penalty of perjury." Id. G(5)(a)(i)(C). Thus, Barrie's claims fail. Alternatively, Barrie's claims are untimely. A person must file a claim "by the time stated in a direct notice sent under [Supplemental] Rule G(4)(b)." Rule G(5)(a)(ii)(A). In compliance with the Supplemental Rule, on March 24, 2016, the government mailed direct notice to Barrie at his place of incarceration, and he received it on May 5, 2016 [D.E. 11]. The notice required Barrie to file a claim within 35 days of the date the notice was mailed [D.E. 5]. Barrie's June 27, 2016 filing was untimely, and good cause does not exist to excuse the untinieliness. See Rule G(5)(a)(iii). In sum, themotionsforreturnofproperty [D.E. 7, 9, 10] are DENIED, and the government's motion to strike [D.E. 12] is GRANTED. The clerk shall close the case. SO ORDERED. This 1.1.. day of October 2016. Chief United States District Judge 2

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