United States of America

Filing 18

DEFAULT JUDGMENT OF FORFEITURE in favor of plaintiff against $10,820.00 in United States Currency. Signed by District Judge Martin Reidinger on April 1, 2010. (jhg)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION C IV IL CASE NO. 1:09cv325

U N IT E D STATES OF AMERICA, P l a i n t if f , vs . $ 1 0 ,8 2 0 .0 0 IN UNITED STATES CURRENCY, D e fen d a n t. )

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D E F AU L T JUDGMENT OF FORFEITURE

TH IS MATTER is before the Court on the Plaintiff's Motion for J u d g m e n t by Default, Entry of Judgment, and Final Order of Forfeiture [D o c .1 3 ].

P R O C E D U R AL AND FACTUAL HISTORY T h e Plaintiff initiated this civil in rem action for forfeiture pursuant to 2 1 U.S.C. §881 on August 20, 2009. [Doc. 1]. In support of the complaint, th e Plaintiff filed the verification of Officer Christopher Denny of the H e n d e rs o n County Sheriff's Department. [Id., at 8]. During a traffic stop on
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J a n u a ry 30, 2009, officers seized the currency which is the subject of this a c tio n from inside a vehicle being driven by Carter Jacob Mitchell. [Id., at 2 ]. The vehicle was registered to Susan Fortenberry Mitchell. [Id.]. T h e Drug Enforcement Agency (DEA) began an administrative fo rfe itu re proceeding during which Carter Mitchell was questioned. [Id., at 5 ]. Thereafter, the case was referred to the United States Attorney's office fo r judicial forfeiture proceedings. 19 U.S.C. §1608; 21 C.F.R. §1316.78. On August 22, 2009, Carter Mitchell received notice that this proceeding h a d been filed. [Doc. 11-1]. In addition, the United States Attorney served c o p ie s of the civil in rem complaint on Carter Mitchell. [Id.]. On the Plaintiff's motion, the Clerk of Court entered default in N o ve m b e r 2009 as to all persons and entities. [Doc. 5]. However, because th e record did not reflect whether notice of the judicial forfeiture proceeding h a d been provided to Susan Mitchell, the owner of the vehicle, the Court re q u ire d the Plaintiff to advise whether notice of the proceeding and/or s e rvic e of the complaint had been provided to her. [Doc. 7]. The Plaintiff re s p o n d e d that it had not done so and as a result, the Court required such n o tic e and service. [Doc. 9]. On January 12, 2010, the Plaintiff notified the C o u rt that Susan Mitchell had been served and had failed to appear. [Doc.

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1 0 ]. DISCUSSION A lth o u g h Carter Mitchell may have filed a claim in the DEA a d m in is tra tive forfeiture proceeding, he did not file a claim or answer in this c ivil forfeiture action. Rule G(5)(a) & (b) of the Supplemental Rules for A d m ira lty or Maritime and Asset Forfeiture Claims. The "`filing of the earlier a d m in is tra tive claim is not a substitute for the claim that must be filed with th e court under Rule C(6) [and/or Rule G].'" United States v. Thirty One T h o u s a n d Eight Hundred Fifty Two Dollars in United States Currency, 183 F e d .A p p x. 237, 241 (3 rd Cir. 2006), quoting David B. Smith, Prosecution a n d Defense of Forfeiture Cases, §9.04[1]; accord, United States v. $ 2 3 ,0 0 0 , 356 F.3d 157, 166 (1 st Cir. 2004); United States v. $2,857.00, 754 F .2 d 208, 214 (7 th Cir. 1984) ("A petition for remission or mitigation of fo rfe itu re is a petition for administrative relief, not judicial relief."). As a re s u lt, he is in default. S u s a n Mitchell did not file a claim or answer in this civil forfeiture a c tio n . Rule G(5)(a) & (b) of the Supplemental Rules for Admiralty or M a ritim e and Asset Forfeiture Claims. As a result, she is in default. T h e Court therefore finds that the Plaintiff has established that no

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p o te n tia l claimant has timely filed a claim or otherwise answered and that d e fa u lt judgment is appropriate.

JU DG M EN T IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that th e Plaintiff's Motion for Judgment by Default, Entry of Judgment, and Final O rd e r of Forfeiture [Doc.13] is hereby GRANTED and Default Judgment a g a in s t the Defendant $10,820.00 in United States Currency is hereby E N TE R E D in favor of the United States of America.

Signed: April 1, 2010

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