United States of America v. Approximately $19,923.00 in United States Currency

Filing 13

ORDER denying 11 Motion for relief from judgment. Signed by District Judge Martin Reidinger on 4/26/2013. (Pro se litigant served by US Mail.)(blf)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:08-cv-00062-MR-CH

UNITED STATES OF AMERICA, )
)
Plaintiff,
)
)
v.
)
)
$19,923.00 IN UNITED STATES )
CURRENCY,
)
)
Defendant.
)
___________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the “Motion for Relief from
Judgment” filed by Frederick Gates (“Claimant”).

[Doc. 11].

The

Government has filed a Response. [Doc. 12].
I.

FACTUAL AND PROCEDURAL BACKGROUND
According to the Complaint filed herein, as verified by Special Agent

Joseph M. Burch of the Bureau of Immigration and Customs Enforcement,
Claimant was driving south on Interstate 85 in Gaston County on
September 19, 2007, when he was stopped for speeding by officers of the
Gaston County Police Department. During the traffic stop, officers detected
an unusually strong odor of air freshener. Upon questioning, a passenger

in the vehicle admitted to smoking marijuana earlier and gave a small bag
of marijuana to one of the officers. Claimant consented to a check by a
drug dog, which “alerted” in the back seat area of the vehicle.

The

defendant currency was located in several places within the vehicle,
including under the back seat. [Doc. 1 at 2-3].
Following the seizure of the defendant currency, U.S. Customs and
Border Protection (“CBP”) sent notice of administrative forfeiture to
Claimant at his reported address, 28 Howe Street, Apt. 1, Lewiston, Maine.
[See Doc. 12-1].

In response, Claimant submitted a CBP claim form

requesting that this matter be referred to the United States Attorney for
court action. [See Doc. 12-2].
The Government commenced this civil forfeiture action on February
19, 2008. The Government attempted to deliver a copy of the Complaint to
Claimant by sending certified mail to his Lewiston address. [Doc. 8]. The
mail was returned as “Attempted – Not Known.” [Doc. 8-1]. At that time,
counsel was not aware that Claimant had been arrested and was no longer
at the Lewiston address. The Government also published notice of this
case in The Mecklenburg Times, a Charlotte, North Carolina, newspaper.
[Doc. 9 at 2].

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On May 14, 2008, the Government moved for entry of default and for
entry of a default judgment as to all persons in the world. [Docs. 5, 6]. The
Clerk entered default on May 21, 2008. [Doc. 7]. On June 3, 2008, the
Court entered an Order granting the Government a default judgment of
forfeiture against the defendant property. [Doc. 8].
Over four years later, Claimant filed the present motion, seeking relief
from the Court’s Judgment. [Doc. 11]. In an Affidavit submitted with his
Motion, Claimant states that he was arrested on January 24, 2008 and has
since been in custody of the Federal Bureau of Prisons. 1 Claimant asserts
that his arrest and subsequent imprisonment in the District of Maine
“prevented [him] from effectively responding to [the Government’s] actions
against [his] personal property.” [Id. at 2].
II.

DISCUSSION
Rule 60(b)(6) of the Federal Rules of Civil Procedure provides that

“[o]n motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for … any other
reason that justifies relief.” In order to obtain relief under Rule 60(b), a

1

The Government has confirmed that Claimant was arrested on that date and was in
federal custody on drug conspiracy charges in the District of Maine when the Complaint
was filed in the present case and sent by certified mail to claimant’s Lewiston address.
[Doc. 12 at 3]. Claimant pled guilty to these charges and was sentenced on September
21, 2010, to a term of imprisonment of 240 months. [Judgment in Criminal Case No.
2:08CR42 (D. Maine), Doc. 321].
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party must demonstrate “that his motion is timely, that he has a meritorious
defense to the action, and that the opposing party would not be unfairly
prejudiced by having the judgment set aside.” Holt v. United States, No.
1:09CV122, 2010 WL 128667, at *2 (M.D.N.C. Mar. 29, 2010) (citing Park
Corp. v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir. 1987)).
In the present case, the Government concedes that the certified mail
notice sent to Claimant’s Lewiston address, while he was incarcerated in
Maine awaiting trial on federal charges, was constitutionally deficient.
[Doc. 12 at 5]. As the Government points out, however, in order to be
entitled to relief under Rule 60(b), the Claimant must show more than
defective notice; he also must show a meritorious claim for the defendant
property. See Whiting v. United States, 231 F.3d 70, 74 (1st Cir. 2000)
(affirming denial of motion for evidentiary hearing where “there was no
adequate proffer of specific, material evidence or other reason to believe
that anything material would be adduced”). The Claimant’s present Motion
does not refute the substantive allegations of the Government’s Complaint
or even attempt to assert a meritorious claim to the defendant property.
Accordingly, the Claimant’s Motion is denied without prejudice.

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IT IS, THEREFORE, ORDERED that the Claimant Frederick Gates’s
Motion for Relief from Judgment [Doc. 11] is DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED.

Signed: April 25, 2013

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