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United States v. Chandler

United States District Court, W.D. North Carolina, Asheville Division

March 28, 2019

UNITED STATES OF AMERICA,
v.
RICHARD JOSEPH CHANDLER, Defendant.

          ORDER

          MAX O. COGBURN JR. UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Government's Motion to Dismiss Amended pro se Petition (#39) filed by David Harlen Cole, Jr. (“Claimant”).

         BACKGROUND

         I. Factual Background

         On November 30, 2018, Defendant Richard Joseph Chandler (“Defendant”) pleaded guilty to Counts Three and Four of the Superseding Indictment, which charged him with possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Count Three), and possession of one or more firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Four). On November 30, 2018, this Court issued a Consent Order and Judgment of Forfeiture (#25), under which Defendant agreed that a silver 2006 BMW (VIN: WBAVB33566KR76593) is subject to criminal forfeiture under 21 U.S.C. § 853, 18 U.S.C. § 924(d), and 28 U.S.C. § 2461(c).

         At the time of his arrest on July 21, 2018, Defendant was seated in the driver's seat of the silver 2006 BMW referenced above. Inside the vehicle, officers located, among other things, approximately 553.4 grams of suspected methamphetamine, several thousand dollars in U.S. Currency, digital scales, two syringes, a .40 caliber handgun that was later determined to be stolen, a loaded .40 caliber magazine, and several zip lock bags. Gov't Mem. (#40) at 2.

         The Government obtained information that the silver 2006 BMW was registered in Claimant's name. Accordingly, consistent with 21 U.S.C. § 853(n)(1), on December 17, 2018, the Government provided direct notice of the forfeiture to Claimant by mailing him a copy of the Consent Order and Judgment of Forfeiture, along with a summary of the requirements for filing a valid petition under 21 U.S.C. § 853(n)(3). See (#31-1). In particular, the Notice made clear that the petition “must be signed by the petitioner under penalty of perjury and set forth the nature and extent of the petitioner's right, title or interest in each of the forfeited properties . . . .” Id. at 3 (citing 21 U.S.C. § 853(n)(3)).

         II. Procedural Background

         On January 2, 2019, Claimant filed a Petition (#28), asserting that the “BMW has not been fully paid for by Richard Joseph Chandler and the car is still in my name and I would like it back.” On January 17, 2019, the Government filed a Motion to Dismiss Claimant's Petition, arguing that he failed to satisfy the requirements of 21 U.S.C. § 853(n)(3) and otherwise failed to sufficiently demonstrate a valid interest in the vehicle. See Gov't Mot. (#30); Gov't Mem. (#31).

         On February 4, 2019, the Court issued an Order denying the Government's Motion to Dismiss without prejudice, finding that, although the Government was correct as to the governing law and its interpretation of the petition, “the Court finds the better course of action is to require petitioner to file an amended petition signed under penalty of perjury either by affidavit or declaration.” Order (#36) at 1. Accordingly, the Court directed Claimant to “file an Amended Petition under penalty of perjury within 14 days of entry of this Order.” Id. at 2.

         On February 12, 2019, Claimant filed an Amended Petition (#37). Unlike his original Petition, Claimant signed the Amended Petition in the presence of a notary. Id. at 3. Additionally, unlike his original Petition, Claimant attached a document, which he contends is his current title status statement, and a DMV statement for the vehicle. Id. at 4-5. Otherwise, the Amended Petition is similar to the original Petition.

         On February 25, 2019, the Government filed the present Motion to Dismiss the Amended Petition (#39), arguing that Claimant has still failed to satisfy the requirements of 21 U.S.C. § 853(n)(3). In accordance with Roseboro v. Garrison, 582 F.2d 309 (4th Cir. 1975), the Court advised Claimant, who is proceeding pro se, that he had the right to file a written Response to the Government's Motion to Dismiss and explain why his Amended Petition should not be dismissed. See Roseboro Order (#41). Claimant was further advised of the bases upon which the Government seeks dismissal[1] and given specific instructions on how to address each issue. The Court allowed Claimant 14 days to respond to the Government's Motion to Dismiss. Claimant did not respond and the time to do so has passed.[2]

         FINDINGS AND CONCLUSIONS

         I. Procedures & Standard of Review Governing ...


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