Otero-Mendez v. United States of America

Filing 17

ORDER DISMISSING 14 Motion for Summary Judgment; GRANTING 15 Motion for Summary Judgment. It is further ORDERED that Plaintiff Otero-Mendez may file an amended complaint on or before November 26, 2014, in accordance with this Order. Signed by Judge Sam Sparks. (dm)

L.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

EMIGDIO GUADALUPE
OTERO-MENDEZ

20R0CT29 PM

'j,y\

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V.

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A-14-CA-346-SS

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UNITED STATES OF AMERICA

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tin

Before the Court are Plaintiff Emigdio Guadalupe Otero-Mendez' s Motion to Return

Property, which has been construed as a civil action under Section 1331 of Title 28 of the United
States Code (Document No. 2); the Government's Motion for Summary Judgment (Document
No. 14); and the Government's Amended Motion for Summary Judgment (Document No. 15).

Otero-Mendez did not file a response thereto. Otero-Mendez, proceeding pro Se, has been granted
leave to proceed in forma pauperis. For the reasons set forth below, the undersigned finds the

Government's original Motion for Summary Judgment should be dismissed and the Government's
Amended Motion for Summary Judgment should be granted. However, the case will not be closed
at this time, as Otero-Mendez will be allowed an opportunity to amend his complaint to assert a

claim under Bivens

v.

Six Unknown Named Agents, 403 U.S. 388 (1971).

BACKGROUND
Otero-Mendez was stopped by the Bulverde Police Department ("Bulverde PD") on
January 17, 2012. He was subsequently arrested for violation of 8 U.S.C.

§

1324(A)(1)(a)(ii) (i.e.

the Transportation of Undocumented Aliens). On February 15, 2012, a federal grand jury returned
a two-count indictment against him for violating that statute. On February 27, 2012, in Cause No.

t:

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SA- 12-CR-il 5-OG, Otero-Mendez pleaded guilty pursuant to a plea agreement to count one of the

indictment. The court sentenced Otero-Mendez to one year probation on July 19, 2012. He was

subsequently removed to Mexico on July 20, 2012.
On December 4, 2012, Otero-Mendez was arrested in Austin, Texas for burglary of a vehicle.

On December 12, 2012, he pleaded guilty and received a 90-day sentence. On January 4, 2013, he
was released to ICE custody, and a criminal complaint was filed against him for violating 8 U.S.C.
§

1326 (illegal re-entry). On January 22, 2013, he was charged in a one-count indictment for the

same in Cause No. A-13-CR-037-SS.

On January 29, 2013, a petition to revoke Otero-Mendez's probation was submitted due to
his arrest in Austin. A probation warrant was issued, and Cause No. SA-12-CR-115-OG was

transferred from the San Antonio Division to the Austin Division where Cause No. A- 13 -CR-047-SS

was opened. On May 15, 2013, this Court revoked Otero-Mendez's probation and sentenced him
to ten months in prison in Cause No. A-13-CR-047-SS.

On the same day, the Court sentenced Otero-Mendez to 46 months in prison to be followed
by three years of supervised release in Cause No. A- 13 -CR-03 7-S S. The Court ordered this sentence
to run consecutive to the sentence imposed in the probation revocation case in Cause No. A- 13 -CV-

047-S S.

Otero-Mendez is currently incarcerated in the Giles W. Dalby Correctional Institution. He
filed a Motion to Return Property in Cause No. A- 13 -CR-03 7-S S and seeks the return of his property

seized at the time of his January 17, 2012 arrest, specifically $3,692.00 in U.S. currency, 4,000
Mexican Pesos, a 1999 Dodge Caravan, his identifications, two cell phones, and a radio. Otero-

Mendez's action was construed as a civil action under Section 1331 of Title 28 of the United States
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Code, seeking the return of his property. See Taylor v. United States, 483 F.3d 385, 387 (5th Cir.
2007) (noting district court properly construed motion for return of property as a civil complaint).

The Government moves for summary judgment. The Government asserts the seized cash of
$3,692 was administratively forfeited by the seizing agency on November 19, 2012, after affording

Otero-Mendez with notice and ample time to submit a claim. With respect to the vehicle, the
Government maintains it was never seized by federal authorities and thus cannot be returned. The

Government explains the Bulverde PD retained custody of the 1999 Dodge Caravan and its contents.
With regard to the remaining property, the Government contends it cannot determine the

whereabouts of such property despite a diligent search.

With respect to the $3,692, the Government specifically argues the due process requirements
were met prior to the administrative forfeiture of the cash. Attached to the Government's Motion
for Summary Judgment is the Declaration of Tanya Brummett, Fines, Penalties, and Forfeitures

Paralegal Specialist for the Dallas/Fort Worth Area Port Office of the U.S. Customs and Border

Protection ("CBP") and Immigration and Customs Enforcement ("ICE"). Brummett indicates the
Homeland Security Investigations Immigration and Customs Enforcement ("HSI/ICE") adopted the
$3,692.00 in U.S. currency from the Bulverde PD. Brummett further indicates HSI/ICE turned over
the $3,692.00 to CBP-San Antonio, Texas Port on January 20, 2012. According to Brummett, on
or about February 29, 2012, the CBP initiated administrative forfeiture proceedings against the

$3,692.00. Brummett explains the CBP sent a Notice of Seizure via registered mail to OteroMendez at his address in Guanajuato, Mexico on March 1, 2012. The registered mail was returned

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undelivered on May 7, 2012.1 A second notice was sent via registered mail to Otero-Mendez at the
address in Mexico on July 5, 2012.

According to Brummett, that notice was not returned

undelivered. Brummett further asserts the Notice of Seizure was posted on the CBP Bulletin Board,
in the area of seizure located in San Antonio, Texas on July 9, 2012, for three consecutive weeks.

Because the notice incorrectly stated "Irving, Texas," a corrected notice was posted on August 24,
2012, for an additional three consecutive weeks. No claims were filed with regard to the U.S.
currency.

ANALYSIS
A.

U.S. Currency

Otero-Mendez seeks the return of$3 ,692 in U.S. Currency. As explained above, the currency
was administratively forfeited after no claims were filed.
To the extent Otero-Mendez seeks to set aside the forfeiture pursuant to 18 U.S.C.

§

983 his

claim fails. The Civil Asset Forfeiture Reform Act ("CAFRA") provides a comprehensive statutory

scheme for challenging a civil forfeiture. When CAFRA was enacted in 2000, its statutory
provisions became "the exclusive remedy for seeking to set aside a declaration of forfeiture under
a civil forfeiture statute." 18 U.S.C.

§

983(e)(5).

Subdivision (e) of Title 18 of the United States Code section 983 provides as follows:

Motion to set aside forfeiture.
(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

Brummett maintains the Notice of Seizure was sent to the address in Mexico, because her office
had been informed Otero-Mendez had been deported. As noted above, Otero-Mendez was not
deported until July 20, 2012.
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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.

When the government seizes property valued at less than $500,000, it may use administrative
forfeiture procedures but must provide notice before forfeiting the property.

United States

v.

Robinson, 434 F.3d 357, 362 (5th Cir. 2005) (citations omitted). To satisfy this notice requirement,
the government must: (1) publish notice of the administrative forfeiture; and (2) send written notice
to any party who appears to have an interest in the seized article. Id. (citing Kadonsky v. United

States, 216 F.3d 499, 503 (5th Cir. 2000)). If no claim is filed, the property is summarily forfeited

to the government. Id. (citing BarreraMontenegro

v.

United States, 74 F.3d 657, 660 (5th Cir.

1996)). Once the administrative forfeiture is complete, a district court may review only "whether

the forfeiture comported with constitutional due process guarantees." Id. (citing Kadonsky, 216 F.3d
at 503). Due process requires the notice be "reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the [forfeiture] action and afford them an opportunity
to present their objections." Id. (citing BarreraMontenegro, 74 F.3d at 660). Actual notice is not

required. Dusenbery v. United States, 534 U.s. 161, 170 (2002).
In the case at hand, the Government presents summary judgment evidence showing it sent

written notice on July 5, 2012, to Otero-Mendez' s last known address in the month he was returned
to Mexico, and this notice was not returned undelivered. Otero-Mendez does not allege he did not

receive this notice. In addition, the notice of seizure was posted for three consecutive weeks "in the

customhouse nearest the place of seizure.
as required by 19 C.F.R.

§

.

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in a conspicuous place that is accessible to the public"

162.45(b)(2) (2012). Otero-Mendez fails to refute the Government's

summary judgment evidence showing the Government's written notice was not reasonably calculated

to provide him with notice, the notice was not properly published, or the notice-of-administrativeforfeiture procedures employed in this case violated his right to due process. In addition, as

explained by the Government, Otero-Mendez had actual notice of the seizure of the U.S. currency
at the time of his arrest. Accordingly, the Government is entitled to summary judgment on Otero-

Mendez's claim regarding the U.S. currency.
B.

Vehicle

Otero-Medez also seeks the return of the vehicle he was driving on the day of his arrest. The
Government contends this Court lacks jurisdiction over this dispute, because the Government never
took custody of the vehicle.
A motion for return of seized property brought in federal court may be properly asserted
solely against federal authorities. See United States

v.

Solis, 108 F.3d 722, 723 (7th Cir. 1997)

(because United States was not in possession of vehicle at the time defendant filed his motion and

United States had never been in possession of vehicle, it was not appropriate party from which to

request its return); Un ited States v. Fitzen, 80 F.3d 387, 389 (9th Cir. 1996) (defendant not entitled
to return of property to the extent his property had been forfeited by the state).

The Government

simply cannot return property it does not possess. Bailey v. United States, 508 F.3d 736, 740 (5th
Cir. 2007). Because the Government did not take custody of the vehicle, the Government is entitled

to summary judgment with respect to Otero-Mendez' s claim for the return of his vehicle.

C.

Remaining Property

Otero-Mendez further seeks the return of 4,000 Mexican Pesos, two cell phones,
identifications, and a radio. The Government admits HSI had possession of 800 Mexican Pesos and
one cell phone found in the center console of the 1999 Dodge Caravan. However, Special Agent

Brian K. Johnson attests these items are no longer possessed by HSI in its offices or evidence vault,
and the Government is unaware as to the disposition of these items. Further, it is unclear whether

the Government ever had in its possession a second cell phone, identifications, or a radio. The
Government is unaware as to the disposition of these items or even if they were ever seized by
federal agents.
Once again, the Government cannot return property it does not possess. Bailey, 508 F.3d at
740. Because the Government does not have in its possession the remaining property in question,

the Court cannot order its return. Accordingly, summary judgment is appropriate with respect to

Otero-Mendez' s claim against the United States for his remaining property.
However, the Fifth Circuit has held where a plaintiff seeks the return of property that has

been destroyed, he may then seek monetary damages for the destroyed property pursuant to Bivens
v.

Six Unknown Named Agents, 403 U.S. 388 (1971), which provides for an action for monetary

damages against a federal official or officials for the alleged violation of a person's constitutional
rights. See JaramilloGonzalez v. United States, 397 F. App'x 978, 981 (5th Cir. 2010) (where a

plaintiff does not initially state a claim for monetary damages, he should be given an opportunity to
amend his complaint to add a Bivens claim). Where facts necessary for a Bivens claim exist, a

plaintiff should be given an opportunity to amend his complaint. See Peha v. Un ited States, 157 F.3d
984, 987 & n. 3 (5th Cir. 1998) (noting because a dismissal of the Rule 41(g) claim by a pro se party

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under sovereign immunity functions the same as the disfavored dismissal of a pro se complaint under
Rule 12(b)(6), "a court should grant a pro se party every reasonable opportunity to amend.").

Accordingly, in light of Otero-Mendez's pro se status, he will be given the opportunity to amend his

complaint to assert a

Bivens

claim against a federal official or officials for the alleged violation of

his constitutional rights.
It is therefore ORDERED that the Motion for Summary Judgment [#14], filed by the

Government on September 18, 2014, is DISMISSED, as it has been superseded by the

Government's Amended Motion for Summary Judgment [#15], filed on October

1,

2014.

It is further ORDERED that the Amended Motion for Summary Judgment [#15], filed by

the Government on October 1, 2014, is GRANTED.
It is further ORDERED that Plaintiff Otero-Mendez may file an amended complaint on or

before November 26, 2014, in accordance with this Order. Failure to file an amended complaint will

result in a final judgment being rendered and the case being closed.
SIGNED this

day of October 2014.

SAi77&t
UNITED STATES DISTRICT COURT

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