MARTINEZ v. UNITED STATES OF AMERICA
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER, signed on 04/30/2015. It is RECOMMENDED that Defendant's Motion 12 be GRANTED and that judgment be entered for Defendants. ( Objections to R&R due by 5/18/2015) (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ELS,A.
MARTINE,Z FLORES,
)
)
Plaintiff,
V
UNITE,D STATES OF'AME,RICA and
DRUG ENF'ORCEMENT
,\DMINISTRATION,
Defendants
)
)
)
)
)
)
)
)
)
1:13CV989
MEMORÄNDUM OPINION AND RECOMMENDATION
TATE
This mattet is before the Coutt on Defendants United States of .{merica and the
Dtog Enfotcement Administtation's @EÂ) motion to dismiss pursuant to Fed. R. Civ.
P.
12(bX1) and (6).1 Qocket F,ntry 12.) Plaintiff has not responded to the motion, despite
teceiving two extensions of time, and the time to do so has expired. The motion is therefore
ripe fot disposition. Fot the following reasons, the court recofiìrnerìds that Defendants'
motion to dismiss be granted.
PROCEDURAL POSTURE
On Novembet 5, 2013, Elsa Mattinez Flores ("Plaintiff'), proceeding prl w,
f:Jed a
Motion to Set -Aside Declaration of Forfeiture and Compel Retutn of Seized Propetty.
(Docket Entry 1.) In her Motion, Plaintiff alleges that $6,500 in United States Curtency was
seized from het home by
'
DE,\
agents on July 28, 201,'1.. Plaintiff alleges that the seizure
In her motion, Plaintiff named only the tlnited States as a Respondent/Defendant. However, the
DEA is clearly p^rry in intetest here and the Court accordingly includes it in the caption and as a
^
party tn the action as a whole.
occurred pursuant
to the atrest of het
boyfriend, Manuel Camacho Gatcia, who was
subsequentiy convicted of conspitacy to distribute narcotics in this court. (See United States
a.
Carùa, Case No. 1:11,CR253-3, M.D.N.C., fìled November 5,201,3.) Plaintiff alleges that the
currency seized belonged to her, not
to Garcia, and that the money should be retutned to
her because she did not teceive notice of the administrative forfeitute
proceeding.
Defendants fìled a timely motion to dismiss on Decembet 31, 201,4. As noted, Plaintiff has
not responded to the motion.
FACTUAL BACKGROUND
On July 25, 2011, Manuelo Garcia was indicted
Caroltna fot violations of 21 U.S.C. $ 841
in the Middle District of North
(uXt). On July 28,201.1, Garcia was affested by
membets of the DEA and Casweil County Shedffls Office at his residence in Yanceyville,
Notth Caroltna. Dudng the attest and ptotective sweep of the residence, Garcia
gave
consent for a seatch of the residence and vehicles in the dtiveway. The law enforcement
offìcers then seatched the residence and discovered $6,500 in U.S. currency, as well as a .45
caliber handgun. The
DE'\
subsequently adopted the seizure of the currency and submitted
a fotfeiture report to DEA's acting Forfeiture Counsel. .{fter teviewing the case, the DEA
accepted the case
for
administtative fotfeiture pursuant
to 21 U.S.C. $
881(a), which
genetally authorizes forfeiture of the ptoceeds of illegal narcotics and funds intended to be
furnished in exchange for illegal narcotics.
On August 16,2011, the DEA sent notice of fotfeiture to Manuel Camacho Garcia
aka Rigobeto Mattines Cruz at 477 Chetry Grove Road, Yanceyville, NC via cetified mail,
return receipt tequested. The notice was accepted and signed for by "Elsa Mar:úr.ez"
2
(Plaintiff) on August 20, 2011. Additionally, on the same date, the DEA sent notice of
fotfeitute to Garcia at the Alamance County Jail by cenified mail. This notice was accepted
and signed
fot by 'J. Lloyd" on -August
1,8, 201,'1,. The mailed notices stated that the
deadline to file a clakn was September 30, 201,'1,. The DEÂ then published notice, pursuant
to 19 U.S.C. $ 1607(a)
and 21 C.F'.R. S 1316.75,
consecutive weeks in August and Septeml:er 201,1.
published notice stated that the deadline
If
in the Wall Street Journal for
th-tee
the mailed notice was not teceived, the
to fìle a clailø:. was Octobet 13, 201,1.
The
published and mailed notices also explained the option of filing a petition fot remissiorì or
mitigation of forfeiture.
On October27,2011, after the time limit for filing aclatrn had expired, and in the
absence
of a ptopetly executed claim, the DE,{, forfeited the amount of $6,500.00 to
United States under authority of
1,9
the
U.S.C. S 1609.
On May 2, 2012, the DEA received a clakn for seized property ftom Eugene
Lestet,
III on behalf of Elsa Matinez. On the same dare, the DEA received a second
for seized property ftom Eugene C. Lester, III, on behalf of Elsa Mafitnez,
C.
claim
at its remote mail
facility in Quantico, Vfuginia. Both of these claims included a copy of the DE,\ Notice of
Seizure dated ,{.ugust 16, 201.1, which indicated that the last day
to fìle a claim was
Septembet 20,201,1, and which was received and accepted by Elsa Matttnez on -{ugust 20,
201,1,.
On May 10, 2012, the DEA rejected the claim of Elsa
l;4ar:.jlnez as
DEA sent notice of the decision to Eugene C. Lester by certified mail.
-)
untimely. The
Plaintiff filed the cuffent action on November 5,
should be set aside because she did not receive notice
201,3, alleging
that the forfeiture
of the administrative
fotfeiture
ptoceeding. The DEÂ received the Summons and Motion on July 9, 201.4. (See Docket
Entty
11.)
DISCUSSION
In
support
pleadings.
of theit motion,
A motion to dismiss
Defendants have ptesented matenal outside the
should be construed as one for summaty judgment
matters outside the pleadings "are presented to and not excluded by the
Cry. P. 12 (d). "All parties must be given
that is peninent to the motion."
Id.
a
if
court." F'no. R.
teasonable opportunity to present all the material
Here, the Clerk of Court mailed the standard
Ro¡eboro
letter to Plaintiff on December 31, 20'1.4, noti$ring her that the motion to dismiss had been
filed, and that
it
"may or m^y not be supported by an afîtdavit." The letter informed
Plaintiff of het right to file a tesponse in opposition, "accompanied by counter affidavits,"
and that she also could submit other tesponsive matertal. Plaintiff was further notifìed that
uncontested motions are ordtnarily granted. (See Roseboroletter, Docket F,nty 1,4.) Plaintiff
teceived one extensions
of tìme (Docket Entry
16), but she never fìled a response to the
motlc)n.
An uncontested motion fot summary judgment is not automatically granted. Canpbell
u.
Hewitt, Coleruan dz Astoct., Inc., 21 F.3d 52,55 (4th Cu. 1,994). Rather, the moving party's
facts ate deemed uncontroverted, and the court determines whether the moving pulry h
entitled to a judgment as
^
rriatter of law. Ca¡ter
4
u. Pan
Arz. Lirt Ins. Co., 12 F.3d 41,0 41,6 (4th
Ctt. 1,993) (the moving p^rq still must show that the facts entide him to a judgment as
a
matter of law)
Plaintiff alleges in her motion that the DEA failed to provide notice to her of the
forfeiture and of her right to file a motion to set aside the forfeiture. The Civil Asset
Fotfeiture Refotm Act of 2000 ("CAFR-{") governs fedetal nonjudicial forfeitute actions
initiated aftet August 23,
2000.
18 U.S.C. $ 983(e)(5). The ptocedute to challenge closed
civil forfeiture ptoceedings on the gtounds of defective notice is set forth in the statute:
(1) -Any person entitled to written notice in any nonjudicial civil fotfeiture
ptoceeding undet a civil fotfeitute statute who does not teceive such notice
may fìle a motion to set aside a declatation of forfeiture with respect to that
petson's interest in the property, which motion shall be gtanted if -
(,{) the Govetnment knew, or reasonably should have known,
of the moving party's interest and failed to take teasonable steps
to provide such paty with notice; and
@) the moving p^rry did not know or have reason to know
the seizure within sufficient time to file a timely claim.
of
18 U.S.C. $ 983(e)(2000).2
Under Section 983(e), thetefore, a court may review nonjudicial civil fotfeitutes only
fot violations of due process.
See
Me¡a ValdelTarlla u. United States,4l7 tr.3d 1189,1,1,96 (1,1,th
Cir. 2005) (claimant may only seek telief under section 983(e) when the Govetnment
has
failed to comply with the notice requirements; he may not challenge the forfeitability of the
property); United States u. Sims,376 F3d 705,707 (7th Cir. 2004) (section 983(e) is the
exclusive remedy
for challenging an administrative fotfeitute that was corrünenced on or
after the effective date of C-AFRA); MtKinnry u. U.S. Dtþ't
'
of Jøstitv,
For a full discussion of civil forfeiture proceedings and CAFRÂ,
F. Supp. 2d696,702-09 (X{.D.N.C. 201,2).
5
see
Citl
580 F. S.rpp. 2d
1., 4
of Concord u. Robinson,91.4
@.D.C. 2008) (district court lacks judsdiction to review an administtative fotfeitute other
than pursuant
immunity);
to section 983(e)
Fol,ës u. U.S.
because Congress has
not otherwise waived
sovereign
DEA, No. 1:05CV389, 2006V/L 3096687, x2 (14.D.N.C. Oct.25,
2006) (CÂFR-,\ is the exclusive remedy fot challenges to an administative fotfeitute.").
The cental question in this case is whether the govetnment took "reasonable steps"
undet $ 983(e)(1)(Ð to provide Plaintiff with the requisite notice. "The notice of fotfeiture
must satis$r constitutional due process." United States u. Ta/oa{, No. 11-74,201.2
4514204,
at x2 (S.D. ìø.Va. Oct. 2, 20'12).
Challenges
WL
to the adequacy of notice of
administrative fotfeiture proceedings are rooted in the Fouth and Fifth Amendments to the
Constitution.
See United State¡ u.
Minor,228 F.3d 352,356 (4th Cir. 2000). "The adequacy
of
notice of an impending forfeiture is thus amattet of obvious constitutional magnitude." Id.,
(citing Mallane u. Central Hanouer Bank dy Trast C0.,339 U.S. 306,31.4 (1950)). Howevet, due
process does not require actual notice
220, 226
Q006).
Instead,
it
ot actual receipt of notice.
Jones u. Flowers, 547 U.S.
requires notice "'teasonably calculated" undet all the
ckcumstances, to apprise interested parties of the pendency of the action and affotd them an
opportunity to present their objections.
Døsenbery
u. United States, 534 U.S.
'1,61,, 1,70-7'1.
Q002) (citing Mallane,339 U.S. ^t 314-15). Moreover, the government is not required to
make "heroic effotts" at notice. Dasenber1,534 U.S. at"l.l0.
In the instant case, the government
sent a notice
to Garcia at his tesidence,
whete
Plaintiff also tesided. Plaintiff accepted and signed fot the cetified mail ftom the DEA to
Garcia on August 20, 201,'1,. The notice clearþ indicated that intetested patties could file a
claim, or petition, or
both. Plaintiff did neither within the time period allowed undet
6
the
statute. Because the government complied with the requirements
of the statute, the Court
fìnds that the declatation of fotfeiture should not be set aside.
Additionally, even
if Plaintiff
could satisfy the fitst prong of $ 983(e)(1), she likely
could not show, under $ 983(e)(1)@) that she "did not know or have reason to know of the
seizure
within sufficient time to fùe a timely claim." Plaintiff was cleady
seizure, as evidenced by the averments of het
^w^Íe
of
the
motion. Moreover, when Plaintiff sent a claim
to the DEA more than eight months after the forfeitute, it included a copy of the DEA
Notice of Seizure dated August 6,20L1, which indicated that the last day to file a claim was
Septembet 20, 201,1,. Plaintiff was cleady awate
notice of the fotfeitute.
of the seizure and had ptoper
statutory
3
CONCLUSION
Based on the foregoing,
it is RECOMMENDED that Defendants'motion @ocket
E.rtry 12)be GRANTED and that judgment be entered for Defendants.
L
[f'ebcter
Strtes i\f4gistna J",lge
Durham, North Caroltna
April 30,201.5
t If Plaintiff
contended that the money seized did not consdtute drug proceeds, her temedy was to
respond to the notice sent by the DEA in Äugust 201.L and to contest the forfeiture in the
proceedings descdbed therein. Her failure to do so extinguished her rights in the seized funds. -fes
Citlt of Concord,974 F. Supp. 2dat773. Moreover, as noted by Defendants, even if Plaintiffs claim
had merit, she would not be entitled to return of the property. Putsuant to $ 983(e)(2)(A), "if the
court granted a motion under paragraph (1), the court shall set aside the declatation of forfeiture as
to the interest of the moving party without prejudice to the dght of the Government to comrnence a
subsequent forfeiture proceeding as to the interest of the moving p^rq." 1B U.S.C. $ 943(e)(Z)(,\).
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?