CNEST Oregon Solutions, LLC et al. v. United States of America

Filing 17

ORDER granting 12 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Lack of Jurisdiction. Plaintiff's complaint is dismissed. Signed by Judge Sandra S Beckwith on 3/16/15. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CNEST Oregon Solutions, LLC, and Jiyu
Song,
Plaintiffs,
vs.
United States of America, and the United
States Secret Service,
Defendants.

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Case No. 1:14-cv-768

ORDER
Before the Court is Defendants’ motion to dismiss Plaintiffs’ complaint. (Doc. 12)
On September 30, 2014, Plaintiffs filed their complaint and petition, pursuant to 18
U.S.C. §983(e) and Fed. R. Crim. Proc. 41(g), seeking the release of a vehicle that was
seized and forfeited to the United States. (Doc. 1) Defendants contend that this Court
lacks subject matter jurisdiction to review the merits of the administrative forfeiture of an
automobile seized by the United States on September 17, 2013. Plaintiffs oppose the
motion (Doc. 14), and Defendants filed a reply. (Doc. 16) For the following reasons,
the Court will grant Defendants’ motion.
FACTUAL BACKGROUND
According to the complaint, CNEST is an automobile exporter that has been in
business since 2011. CNEST purchases luxury automobiles in the United States, and
exports them to foreign jurisdictions. CNEST, acting through Jiyu Song (an individual
who resides in China), purchased a 2014 Range Rover Sport vehicle from a Cincinnati
auto dealer in September 2013. CNEST wired the purchase funds to Song, who paid

for the car and took possession of it with the intent of transferring title to CNEST.
However, on September 17, 2013, Secret Service agents seized the car from Song in
Mason, Ohio. CNEST and Song submitted various requests to the Secret Service to
return the vehicle, which were all denied. Plaintiffs allege that the vehicle was lawfully
acquired and fully paid for, and there is no evidence of any illegality in the underlying
transaction. CNEST asserts that it is an innocent owner of the vehicle, which was
seized without a warrant and without probable cause. Neither CNEST nor Song has
been identified as a target of a criminal investigation, and no criminal charges have
been filed against either of them. Despite their attempts to reclaim the vehicle and their
“substantial compliance” with applicable rules, the United States has not commenced a
judicial forfeiture action or adjudicated their claims of constitutional violations and lack of
notice of the forfeiture.
The complaint includes five claims for relief. In Count One, Song alleges he did
not receive notice of the seizure, that his signature on documents on September 17,
2013 were obtained under duress and without benefit of counsel, and that he is
therefore entitled to a return of the vehicle. Counts Two and Three allege violations of
Plaintiffs’ Fifth Amendment right to just compensation, and to adequate due process of
law. Count Four alleges that the Secret Service seized the vehicle in violation of the
Fourth Amendment. Count Five seeks a declaratory judgment that Song received
inadequate notice, and that both Plaintiffs were not afforded adequate due process.
They seek an order requiring the United States to allow them to make a claim for the
vehicle, or ordering the vehicle to be returned to them.
Defendants’ motion is supported by the declarations of John Clark, Special Agent
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in Charge of the Secret Service Asset Forfeiture Branch, and of SA Jeffrey Schmitz, one
of the agents involved in the events of September 17, 2013. Attached to the
declarations are the documents described in Plaintiffs’ complaint, and upon which their
claims arise, and the Court may consider them in ruling on Defendants’ motion.
SA Clark attests that the agency’s files and records concerning the vehicle
seizure include a report that on September 12, 2013, the Cincinnati field office received
a tip from the Cincinnati Land Rover dealer regarding a possible fraudulent vehicle
purchase by “a straw purchaser for an auto exporter.” (Doc. 12-1, ¶6(a)). On
September 17, 2013, Special Agent Schmitz, SA Morgan Morgan and other agents
went to the dealership to await the arrival of the suspected straw purchaser. He arrived
and was identified as Jiyu “Frank” Song. The agents observed him purchase the Range
Rover, and they followed him to his residence in Mason, Ohio. When they arrived,
Agents Schmitz, Morgan and Kevin Dye approached Song and advised him of his
Miranda rights. Song agreed to waive those rights, and waived his right to have a
lawyer present while the agents questioned him. Song signed a written waiver
acknowledging these rights. (Doc. 12-2, Schmitz Decl., Attachment 1) The agents told
Song that he was not under arrest and that he could stop the interview at any time.
Schmitz states that Song is a graduate of Miami University with a degree in accounting.
Song spoke English very well, and did not indicate to the agents that he had any
problem with language, or that he did not understand what was happening.
Song gave the agents a verbal and a written statement about his activities with
and on behalf of CNEST. His hand-written statement states that he works for a
company that
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... ships cars to China. Today I just got a Range Rover Sports HSE. I
purchase cars, then they call a truck driver to pick up a car. I did this
several times. They send me check or wire me the money. I made about
couple hundred dollars to couple thousand dollars according to different
cars.
Song described several prior purchases, and stated that he asked some of his friends to
buy cars for the same company. He also stated: “They [CNEST] told me to hide the
truth that we are shipping the cars because the dealers won’t sell us the cars if we tell
them we’re shippers. I know Chinese market does not want to car to be in the market
[sic] and the dealership gets fined if the cars they are selling are shipped.” (Schmitz
Decl., Attachment 2) When the agents finished questioning Song, he voluntarily
released the vehicle to the agents, and signed an “Agreement to Surrender Property.”
(Doc. 12-1, Clark Decl., Attachment A) The agreement is signed by Song and witnessed
by Agents Dye and Schmitz, and states that Song is the registered owner of the vehicle.
It also states:
I admit that the items/vehicles listed below were purchased unlawfully and
are proceed of; violations of 18 U.S.C §§1343 and 1956.
I hereby voluntarily relinquish ownership of this property/vehicle to the
United States Government, Secretary of Homeland Security to dispose of
in accordance with law. I waive my rights to receive service of process
and/or any other form of notice of abandonment proceedings or
civil/administrative forfeiture actions initiated by the United States against
the property/vehicle listed below. I further agree not to file a claim or
otherwise contest any forfeiture or abandonment proceedings initiated by
the United States against the property listed below.
I agree to release and hold harmless the United States, the Department of
Homeland Security, the U.S. Secret Service, it’s officers, employees and
Agents, from any and all claims or causes of actions, of whatever kind,
that might now exist or hereafter exist by reason of or growing out of,
directly or indirectly, the seizure or surrender of the described property.
I have not been coerced or threatened in any way, nor do I expect to gain
reward or special consideration for completing this document.
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(Clark Decl., Attachment A)
Plaintiffs’ complaint alleges “upon information and belief, [that] Song’s signature
to the Agreement was neither knowing or voluntary, and was obtained in duress. Song
was provided with neither a certified translation of the Agreement nor the opportunity to
confer with counsel.” (Doc. 1, ¶21)
On November 14, 2013, the United States sent a notice of forfeiture to CNEST,
c/o Juan Yong Zhang. (Clark Decl., Attachment C) The notice informed CNEST that
the vehicle had been seized for forfeiture. It informed CNEST, as a potential interested
party, that it had three options: (1) it could petition the Secret Service for the return or
remission of the vehicle by filing a Petition for Remission/Mitigation in a form enclosed
with the notice; (2) it could contest the forfeiture in U.S. district court by filing a Seized
Asset Claim Form with the Secret Service; or (3) it could do nothing if it had no interest
in the vehicle. If CNEST chose the first option (petition for remission), it was instructed
to send proof of its interest in the vehicle, together with a statement of facts justifying
remission or mitigation. The notice further instructed CNEST that if it disagreed with the
forfeiture and wanted to proceed in federal district court, it must file a claim form and
claim of ownership with the Secret Service by December 19, 2013. If CNEST intended
only to seek remission, it was not required to submit the claim form. No separate notice
of seizure and forfeiture was sent to Song.
The Secret Service issued a declaration of forfeiture of the vehicle on January 3,
2014, because no timely claim had been received. (Clark Decl., Attachment L) 19
U.S.C. §1609(b) provides that a declaration of forfeiture “shall have the same force and
effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a
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district court of the United States.”
On January 16, 2014, CNEST filed a Petition for Remission, claiming it was an
innocent owner of the vehicle pursuant to 18 U.S.C. §983(d). CNEST asserted that it
lacked knowledge of any conduct giving rise to the forfeiture, and that there was no
evidence of illegality in the underlying transaction. (Clark Decl., Attachment H) The
Secret Service denied the petition on May 14, 2014. In its letter to CNEST’s lawyer, the
Secret Service states that “CNEST has failed to prove that it meets the criteria to qualify
as an ‘innocent owner’ of the forfeited property as defined by federal law. In order to
qualify as an ‘innocent owner,’ a petitioner must prove that it had a legally cognizable
interest in the seized property and that it did not know of the conduct giving rise to the
forfeiture. ... Our investigation of CNEST’s petition revealed that employees of CNEST
were participants in the conduct that gave rise to the forfeiture. In addition, CNEST has
offered no supporting documentary evidence or sworn factual recitations to substantiate
its claim of innocent ownership.” (Clark Decl., Attachment I)
CNEST filed a timely Petition for Reconsideration of the denial of its petition on
May 23, 2014. The same day, Song submitted a Seized Asset Claim Form pursuant to
18 U.S.C. §983. A letter from Song’s attorney accompanying his claim form asserts
that Song did not receive a notice of seizure as required under Section 983(a), and that
the final notice had not yet been published on the Government’s forfeiture website.
Song claimed a legally cognizable property interest in the vehicle, because he paid full
purchase price and took title at the time of purchase. He disclaimed any knowledge of
any conduct giving rise to a forfeiture. (Clark Decl., Attachment F) The Government
denied Song’s claim on June 2, 2014 because it was not timely filed. It also cited
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Song’s Agreement to Surrender the vehicle, in which he relinquished ownership and
waived his rights to receive personal notice of the forfeiture. (Clark Decl., Attachment
G) And on August 27, 2014, the Government denied CNEST’s request for
reconsideration, citing pertinent regulations requiring a reconsideration request to be
supported by evidence not previously submitted that is material to the reason for the
denial, or which shows that the original denial was clearly erroneous. (Clark Decl.,
Attachment K)
Based on this record, Defendants move to dismiss under Fed. R. Civ. Proc.
12(b)(1) and 12(b)(6). They contend that this Court lacks subject matter jurisdiction to
review the merits of the administrative forfeiture of the vehicle. The only issue that this
Court could determine is whether the Secret Service complied with statutory and
procedural notice requirements set forth in 18 U.S.C. §983(e), governing motions to set
aside a forfeiture. That section entitles someone who is entitled to written notice in a
nonjudicial civil forfeiture proceeding, and who does not receive that notice, to seek an
order setting aside the forfeiture. A motion under this section is “the exclusive remedy
for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.”
CNEST received written notice and cannot proceed under that statute. Song waived his
right to notice, and has no basis to plausibly assert a lack of actual knowledge that the
vehicle was seized on September 17, 2013. The Secret Service complied with the
statutory and procedural notice requirements for proper administrative forfeiture of the
vehicle, and therefore the Defendants seek dismissal of Plaintiffs’ constitutional claims.
Plaintiffs disagree, and argue that this Court may review the denial of CNEST’s
petition for remission. CNEST cites cases holding that a court may review whether an
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administrative forfeiture proceeding satisfies due process rights, and argues that the
Secret Service failed to consider its claim of innocent ownership. See, e.g., Simons v.
United States, 497 F.2d 1046, 1049 (9th Cir. 1974), noting that district courts lack
jurisdiction to formally remit forfeitures, but may grant relief from unlawful forfeitures.
CNEST stresses that it is not challenging the merits of the forfeiture, or whether there
was probable cause to seize the vehicle: its claim is directed solely at the process
employed to deny its remission petition. Plaintiffs argue that this Court may review the
Secret Service’s exercise of its discretion regarding the forfeiture proceeding. This is
especially true regarding innocent owners who have been deprived of their property
when the government fails to fully investigate or explain the reasons for denying such a
claim. Alternatively, Plaintiffs urge the Court to exercise equitable jurisdiction, because
CNEST is an innocent owner who has been irreparably harmed by the loss of customer
goodwill, and lacks an adequate remedy at law. Song contends he has standing to
pursue a Section 983(e) motion, or at least is entitled to an evidentiary hearing to
contest the Secret Service’s assertions that he voluntarily waived his right to notice.
DISCUSSION
Standard of Review
A motion brought under Fed. R. Civ. Proc. 12(b)(1), seeking dismissal for lack of
subject matter jurisdiction, can be a facial attack upon the sufficiency of the complaint,
or upon the factual existence of subject matter jurisdiction. A facial attack is based
upon the allegations of the complaint, which the Court accepts as true. But in reviewing
a factual challenge to subject matter jurisdiction, the Court has broad discretion to
consider evidence outside the pleadings, and may weigh the evidence to determine
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whether the Court may exercise jurisdiction to hear the case. Plaintiff bears the burden
of establishing that subject matter jurisdiction exists. Cartwright v. Garner, 751 F.3d
752, 759-760 (6th Cir. 2014).
In reviewing a motion to dismiss a complaint under Rule 12(b)(6), a court must
accept the complaint’s well-pleaded factual allegations. A claim will survive if those
allegations are “enough to raise a right to relief above the speculative level on the
assumption that all of the complaint's allegations are true.” Jones v. City of Cincinnati,
521 F.3d 555, 559 (6th Cir. 2008), citing Bell Atlantic Corp. v. Twombly, 550 U.S.544
(2007). Twombly essentially retired Rule 8's permissive “no-set-of-facts” pleading
standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Twombly court
found that literal application of that standard impermissibly permits wholly conclusory
claims to survive Rule 12 challenges. And in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the
Court expressly held that a complaint will survive a Rule 12 challenge only if its wellpleaded factual allegations are sufficient to state a claim for relief that is plausible on its
face. Facial plausibility requires pleading facts that permit a reasonable inference that
the defendant is liable for the alleged misconduct. If a complaint pleads facts that are
“merely consistent with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. at 678 (quoting Twombly, 550
U.S. at 556-557).
This Court Lacks Jurisdiction to Review CNEST’s Claims
The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) amended civil forfeiture
statutes and regulations, including those contained in 18 U.S.C. §983. Section
983(a)(1) states that in a nonjudicial civil forfeiture proceeding, the United States must
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send written notice (a “personal notice letter”) to interested parties no more than 60
days after the seizure. If the United States learns of the identity or interest of a party
after the seizure but before a formal forfeiture declaration is entered, written notice must
be sent no later than 60 days after the United States learns of that identity or interest.
An interested party who receives notice can elect one of two methods to challenge the
seizure and forfeiture. Section 983(a)(2) states that any such person may file a “claim”
not later than the deadline set forth in the seizure notice; if the person does not receive
that notice, the claim must be filed not later than 30 days after the date of final
publication of the seizure notice. If a “claim” is timely filed, the United States must file a
judicial forfeiture complaint in the appropriate district court.
If a person does not file a claim, he may administratively challenge the forfeiture
by filing a petition for remission or mitigation of the forfeiture, pursuant to 19 U.S.C.
§1608. In that case, the decision is committed to the broad discretion of the agency,
and federal court review “... is limited only to a determination that the proceeding
conformed with the requirements of due process.” In re: Search Warrants for 27867
Orchard Lake Road, 553 F.Supp.2d 879, 882 (E.D. Mich. 2008).
Section 983(e) further provides:
(1) Any person entitled to written notice in any nonjudicial civil forfeiture
proceeding under a civil forfeiture statute who does not receive such
notice may file a motion to set aside a declaration of forfeiture with respect
to that person's interest in the property, which motion shall be granted if–
(A) the Government knew, or reasonably should have
known, of the moving party's interest and failed to take
reasonable steps to provide such party with notice; and
(B) the moving party did not know or have reason to know of
the seizure within sufficient time to file a timely claim.
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...
(5) A motion filed under this subsection shall be the exclusive remedy for
seeking to set aside a declaration of forfeiture under a civil forfeiture
statute.
CNEST does not dispute that it received the November 14, 2013 written notice
of forfeiture on November 15. CNEST does not mention in its complaint that it filed a
“claim” with the Secret Service on January 3, 2014. A “claim” under Section 983(a)(2)
must be filed no later than 35 days after the written notice. CNEST filed its claim well
beyond that deadline, and the complaint does not challenge the Secret Service’s denial
of that untimely claim. CNEST therefore cannot satisfy the requirements of Section
983(e). See United States v. Comerica Bank, 384 Fed. Appx. 471 (6th Cir.
2010)(unpublished), affirming dismissal of bank’s Section 983(e) motion because the
bank conceded it received notice of forfeiture, and the bank failed to file a timely claim.
CNEST also claims that it was denied due process of law by the Secret Service’s
summary rejection of its petition for remission and its request for reconsideration.
CNEST cites this Court’s order in another judicial forfeiture action involving a different
auto broker, arising out of the Secret Service’s contention that the broker was engaged
in wire or mail fraud by purchasing vehicles in the United States that were subsequently
exported.1 In an April 1, 2014 order in that case, this Court denied the defendant’s
motion to dismiss the judicial forfeiture complaint filed by the United States, but granted
immediate release of the broker’s bank account and two seized vehicles, after
concluding that the United States had not shown probable cause to continue to hold the
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See United States v. Contents of Wells Fargo Bank Account, Case No. 1:13-cv-

716.
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seized assets pending trial. CNEST argues that the vehicle in this case, like those in
the prior case, was seized and administratively forfeited “on the mere assumption of
unlawful activity. The [Secret Service] never obtained a warrant or a judicial finding of
probable cause, and has proceeded under a legal theory that has since been debunked,
or seriously challenged, by this Court.” (Doc. 14 at 11)
In that prior case, this Court found insufficient the Government’s showing of
probable cause to seize two vehicles (and a substantial amount of money in the auto
broker’s bank account that had been seized by a warrant). That case was a judicial
forfeiture proceeding filed by the United States after the auto broker timely filed a “claim”
under Section 983(a). And the claimant’s motion for release of the assets was
supported by its principals’ sworn affidavits. If CNEST had filed a timely claim with the
Secret Service, the United States would have been required to institute a judicial
forfeiture action, in which CNEST could seek a hearing on its constitutional challenges
to the vehicle’s seizure. But CNEST failed to do so, and instead chose to proceed with
a petition for remission.
CNEST concedes that this Court lacks jurisdiction to review the merits of the
administrative forfeiture of the vehicle. CNEST’s arguments that it was not engaged in
illegal activity, that the vehicle was seized without a warrant, or that the Fifth
Amendment requires the Secret Service to compensate it for the loss of its property, all
go to the merits of the forfeiture. In Valderrama v. United States, 417 F.3d 1189 (11th
Cir. 2005), the court of appeals affirmed the dismissal of a claimant’s lawsuit
challenging an administrative forfeiture of an unendorsed check payable to the claimant.
The claimant argued that the forfeiture was unlawful under applicable Customs statutes
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because the check was not subject to summary forfeiture, and the court had jurisdiction
to set aside agency action that is contrary to law. The Eleventh Circuit rejected this
argument and held: “Section 983(e) provides [the] exclusive remedy to challenge the
administrative forfeiture. The only issue this court can consider is whether [claimant]
received the appropriate notice in sufficient time to contest the agency’s action of
summarily forfeiting the check. And, the record clearly demonstrates that [claimant]
received the appropriate notice of the seizure and the summary forfeiture actions taken
by Customs.” Id. at 1196 (internal citation omitted). The court also affirmed the district
court’s decision denying the claimant’s equitable claim: “It is inappropriate for a court to
exercise equitable jurisdiction to review the merits of a forfeiture matter when the
petitioner elected to forego the procedures for pursuing an adequate remedy at law.” Id.
at 1197 (quoting In re Matter of $67,470.00, 901 F.2d 1433, 1434 (11th Cir. 1990)).
See also, United States v. Artis, 172 Fed. Appx. 309, 311 (11th Cir. 2006),
finding that after CAFRA, Rule 41(g) does not permit a challenge to an administrative
forfeiture, even though prior to CAFRA’s passage such motions were routinely treated
as equitable actions against the Untied States. To similar effect is Martin v. Leonhart,
717 F.Supp.2d 92 (D.D.C. 2010), where the district court dismissed claimants’ lawsuit
against the DEA, which had seized almost $20,000 cash from one of them during a
random drug search on an Amtrak train. The claimants argued that there was no
evidence that either of them was involved in drug trafficking, and that the money was
seized unlawfully from them. The district court held it lacked jurisdiction to review the
merits of their complaint because they failed to file a timely claim with the DEA.
CNEST also challenges the Secret Service’s “process” for reviewing its petition
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for remission of the forfeiture, and the denial of its request for reconsideration. CNEST
argues this Court should exercise limited jurisdiction to determine if that process
comported with the Fifth Amendment. The fundamental requirements of due process
are notice and an opportunity to be heard. Dusenbery v. United States, 534 U.S. 161,
167-68 (2002). CNEST was provided with both actual notice, and the opportunity to be
heard by filing a timely claim to the vehicle. The Court finds that CNEST’s arguments
that the Secret Service failed to fully consider the grounds for its remission petition, or
that it summarily denied its request for reconsideration, are simply an attack on the
merits of the Secret Service’s decision, which this Court lacks jurisdiction to address.
Song’s Claims Must Also Be Dismissed
Song alleges that he did not receive written notice of the seizure or forfeiture, and
asks the Court to order the vehicle returned to him. The United States contends that
Song waived his right to notice when he voluntarily surrendered the vehicle on
September 17, 2013. But even if his written waiver was somehow ineffective, Song
cannot satisfy the requirements of Section 983(e)(1(B), because he cannot plausibly
argue that he “did not know or have reason to know of the seizure within sufficient time
to file a timely claim.” The Secret Service agents seized the vehicle directly from Song,
with his knowledge.
Song relies on the complaint’s allegation, made under information and belief, that
he was under duress and that his signature on the waiver form was not knowing or
voluntary. (Doc. 1, ¶21) The United States has submitted a sworn affidavit from SA
Schmitz contradicting these information and belief allegations. Song has not submitted
an affidavit or a declaration that rebuts or contradicts Agent Schmitz’s sworn testimony,
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and which might give rise to a genuine factual dispute about the circumstances of the
encounter between Song and the agents. The Court has considered Agent Schmitz’s
declaration and finds that is sufficient to rebut Song’s unadorned information-and-belief
allegations.
Even if Song had raised a genuine dispute about the written waiver he signed,
the Court concludes that Song cannot satisfy the requirements of Section 983(e)(1)(B).
The undisputed facts before the Court establish that he had actual knowledge of the
seizure of the vehicle. Cases applying that statute clearly hold that a claimant’s
“knowledge” of the seizure is not measured by whether or not the government sent a
written notice to that person. For instance, In re: Seizure of $143,265.78 from Comerica
Checking Accts., 616 F.Supp.2d 699, 705 (E.D. Mich. 2009), aff’d 384 Fed. Appx. 471
(6th Cir., July 2, 2010), involved a challenge to the seizure of funds in bank accounts of
an entity that the United States alleged was engaged in money laundering and visa
forgery. The accounts were held at Comerica Bank, and the bank held a security
agreement with that entity. A week after the seizure, an attorney for the bank contacted
the United States Attorney concerning the bank’s security interest, and asking to be
kept apprised of the anticipated forfeiture proceedings. The United States sent a written
notice of the seizure and forfeiture to the bank branch where the accounts were
maintained. The bank did not file a claim within the required time, and later filed a
petition for remission which was denied. The district court held that the bank could not
satisfy the requirements of Section 983(e) because “it had actual knowledge of the
seizure; the government took the money from the accounts in the possession of the
bank even before the forfeiture notice was sent.” Id. at 705. Even though the United
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States did not dispute that the bank was an innocent owner, and that its attorney had
been in contact with the U.S. attorney, the bank’s failure to comply with the strict
statutory requirements doomed its claim.
The same situation occurred in this case: Song cannot deny his actual
knowledge of the seizure of the vehicle on the day it happened, long before the
forfeiture notice was sent to CNEST on November 14, 2013. Section 983(e)(1)(B)
plainly states that it is knowledge of the seizure, and not of the forfeiture proceedings,
that bars a claimant from relief under the statute if he fails to file a timely claim.
Song suggests that the Agreement to Surrender Property that he signed on
September 17 did not inform him that the vehicle had been “seized,” or of his right to file
a claim in a forfeiture proceeding. The form he signed plainly states that Song both
relinquished his ownership rights, and waived his right to receive “notice of
abandonment proceedings or civil/administrative forfeiture actions” with respect to the
vehicle. While it did not explain all of his potential rights regarding the vehicle, there can
be no factual dispute that Song had actual knowledge of the seizure - the car was taken
away by the Secret Service, and he signed the agreement acknowledging that fact.
Song’s due process claims must also be dismissed because he had actual notice
of the seizure of the vehicle, and could have asserted a timely claim. Song agreed “not
to file a claim or otherwise contest” any subsequent proceedings brought by the United
States against the vehicle. He did nothing to assert an interest in the vehicle until May
23, 2014, after CNEST’s petition for remission was denied. His equitable claim seeking
the return of the vehicle also lacks merit, because Section 983(e) is the exclusive
avenue for obtaining that relief.
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CONCLUSION
This case is the second one that has arrived on this Court’s docket arising from
the Secret Service’s belief that certain automobile brokers are violating the mail and/or
wire fraud statutes by purchasing luxury vehicles in the United States, and subsequently
exporting those vehicles to other countries. This case is factually and legally distinct
from the previous case discussed above, however, because Plaintiffs failed to avail
themselves of the exclusive statutory method by which to seek judicial review of the
seizure of the vehicle. Case law is clear that even those with arguably meritorious
claims who fail to timely pursue statutory remedies may not seek federal judicial review
of a civil administrative forfeiture. Therefore, for all of the foregoing reasons, Plaintiffs’
complaint is hereby dismissed.
SO ORDERED.
THIS CASE IS CLOSED.
DATED: March 16, 2015

s/Sandra S. Beckwith
Sandra S. Beckwith, Senior Judge
United States District Court

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