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United States v. $40

United States District Court, E.D. North Carolina, Western Division

February 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
$40, 000.00 IN UNITED STATES CURRENCY, Defendant.

          ORDER

          LOUISE W. FLANA(ST UNITED STATES DISTRICT JUDGE

         This matter comes before the court on claimant Jason Do's (“claimant”) motion for summary judgment (DE 20). The motion has been fully briefed, and in this posture the issues presented are ripe for ruling. For the reasons noted, the motion is denied.

         STATEMENT OF THE CASE

         The government initiated these civil forfeiture actions on August 3, 2017, as to claimant, and September 21, 2017, as to Son Ba Do in companion case, by filing the same complaint in each case for forfeiture in rem against $40, 000.00 in U.S. currency to enforce 18 U.S.C. § 981(a)(1)(c) and 21 U.S.C. § 881(a)(6), providing for the forfeiture constituting or derived from proceeds traceable to violations of 21 U.S.C. § 841, specifically possession with intent to distribute a controlled substance. On October 22, 2017, claimant filed claim alleging ownership and possessory interest in defendant funds.

         On November 16, 2017, claimant filed motion to dismiss, arguing the government has failed to allege sufficient facts to support a reasonable belief that the currency at issue is subject to forfeiture. On May 24, 2018, the court denied claimant's motion.

         On August 7, 2018, claimant filed the instant motion for summary judgment, arguing the government's complaint for forfeiture should be dismissed for failure to comply with 18 U.S.C. § 983(a)(3)(A)'s requirement that civil forfeiture complaints be filed “[n]ot later than 90 days after a claim has been filed” in administrative forfeiture proceedings.” In support, claimant did not file statement of material facts pursuant to Local Rule 56.1(a) but did file the following exhibits: personal notice letter from United States Customs and Border Patrol (“CBP”); Civil Asset Forfeiture Reform Act (“CAFRA”) seized asset claim form; letter to Fines, Penalties & Forfeiture (“FP&F”) office; certified mail receipt; certified mail return receipt; cover letter for complaint for forfeiture in rem; United States Postal Service (“USPS”) tracking information; and affidavits of claimant and Caroline Garrett, paralegal at Hale, Blaue, and Saad, PC.

         The government filed response in opposition, including statement of material facts and declarations of Willie L. Kendrick (“Kendrick”), a CBP technician in the main port office in Charlotte, North Carolina, and Kimberly Griffith, an expert paralegal for CBP in the FP&F office in Charlotte, North Carolina.

         Additionally, on August 15, 2018, the court granted the government's motion to stay discovery pending the court's decision on claimant's motion for summary judgment, directing that the parties' joint discovery plan in this case will be due 14 days after such decision, should claimant's motion be denied.

         STATEMENT OF THE FACTS

         Although claimant has not filed statement of material facts, based on claimant's exhibits and the government's statement of material facts and supporting exhibits, the following are the relevant undisputed facts.

         On April 9, 2017, agents of CBP seized $40, 000 in U.S. currency from claimant at Raleigh -Durham Airport. Following receipt of “notice of seizure and information to claimants CAFRA form” and as directed by said notice, claimant filed an administrative claim with respect to the defendant property by certified mail, addressed to the FP&F office, 1901 Cross Beam Drive, Charlotte, NC 28217, bearing tracking number 7015 3010 0000 4234 5700. The notice did not indicate that any particular person should be referenced in the correspondence. Although the certified mail receipt bears no date of delivery, tracking information available through the USPS website indicates that the parcel was delivered to “Front Desk/Reception” on May 4, 2017 at 10:59 a.m. (See DE 23-7).

         The signature on the certified mail receipt belongs to Kendrick, who is employed as a CBP technician in the main port office in Charlotte, North Carolina, an office that is separate from the FP&F office, although both are located in the same building. Pursuant to his official duties, Kendrick assists with the receipt and distribution of incoming mail. Incoming mail for the CBP facility is sorted and then placed into an internal mailbox for the appropriate employee or office listed on the address. A FP&F office employee typically retrieves incoming mail from the internal FP&F mailbox once each business day. The mail is then stamped with the FP&F date stamp once it is received by the FP&F office.

         The claim package submitted by claimant was stamped with a “received” date of May 5, 2017, indicating that it was received by the FP&F office at 11:59 a.m. on May 5, 2017. (DE 32-2 at 3). The government's complaint for forfeiture in rem was filed against the property on August 3, 2017, which is the 90th day after claimant's claim was stamped “received” by ...


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