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United States v. Ferguson

United States District Court, M.D. Florida, Ocala Division

August 26, 2019

UNITED STATES OF AMERICA
v.
CHRISTOPHER BARRINGTON FERGUSON

          ORDER

          JAMES D. WHITTEMORE UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is correspondence from Defendant, construed as a motion to set aside a declaration of forfeiture and return of property, his affidavit, and the United States' response in opposition (Dkts. 32, 34, 37). Defendant seeks return of $16, 000, a cell phone and food scale seized when he was arrested, after he handed the $16, 000 to an undercover agent as partial payment for a kilo of cocaine (Dkt. 25, PSR, ¶ 9-10). Upon consideration, Defendant's construed motion is DENIED.

         Defendant was indicted and charged with attempting to possess with intent to distribute 500 grams or more of cocaine (Dkt. 9). Significantly, the Indictment included a forfeiture allegation directed to “any property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation, ” pursuant to 21 U.S.C. § 853(a)(1) and (2). He pleaded guilty and was sentenced to 24 months, followed by a 3 year term of supervised release (Dkt. 30).

         Defendant contends (1) that his property is not contraband and is not “lawfully subject to forfeiture” and (2) that he never received written notice of the forfeiture. He also maintains that the $16, 000 “is lawful monies [sic] that is not tainted funds-traceable to any criminal conduct.” He avers that he “voluntarily” “turned over” the $16, 000, cell phone and food scale, and that he “did not receive any type of formal notification . . . regarding a nonjudicial forfeiture proceeding” against the $16, 000.[1]

         The $16, 000 and cell phone were administratively forfeited by Customs and Border Protection.[2] Defendant's reliance on Rule 41, Fed.R.Crim.P. is misplaced. Rule 41(g) is inapplicable to forfeitures. United States v. Watkins, 120 F.3d 254, 255 (11th Cir. 1997).The exclusive remedy to set aside a forfeiture is under 18 U.S.C. § 983(e). Mesa Valderrama v. United States, 417 F.3d 1189, 1195 (11th Cir. 2005). Under § 983, the court's review “is limited to determining whether the agency followed the proper procedural safeguards.” Id. at 1196.[3] The issue is whether Customs and Border Protection complied with the publication and written notice provisions of 18 U.S.C. § 983(a). Section 983 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.

18 U.S.C. § 983(e)(1)(A).

         It is only required that the “notice [be] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mesa Valderrama, 417 F.3d at 1196-97 (citation omitted). And reasonable notice “requires only that the government attempt to provide actual notice; it does not require that the government demonstrate that it was successful in providing actual notice.” Id.

         Notice of the seizure and intent to forfeit was published on the website forfeiture.gov from May 11, 2018 through June 9, 2018 (Dkt. 37 at 2, Attachment B). And a notice of forfeiture was sent to Defendant at his residence by certified mail, return receipt requested (Attachment B). The certified mail notice was accepted and signed for by an unknown individual at Defendant's residence. Before mailing the notice, Customs and Border Protection confirmed through the Lake County Jail, where he had been held, that he had been released on February 8, 2018 (Attachment C). The website was in error, however, as he had been released to the U.S. Marshal.[4]

         I find that Customs and Border Protection, took reasonable steps to provide Defendant with notice, as evidenced by the certified mail notice it sent to his residence. The Lake County Jail's error does not mitigate against that reasonable effort. As noted, all that was required was an attempt to provide notice, not that the Government was successful in providing notice. Mesa Valderrama, 417 F.3d at 1196-97.

         Moreover, Defendant knew from the forfeiture allegations in the Indictment that the funds and cell phone would be subject to forfeiture. And he was reminded of that when he pleaded guilty. (Dkt. 15 at 2) (“Additionally, the defendant must forfeit to the United States any and all assets and property, subject to forfeiture, pursuant to 21 U.S.C. § 853, as outlined in the Indictment.”). He therefore had reason to know that his property had been seized and sufficient notice of the forfeiture to file a timely claim. And by inference from his motion, he was aware that someone at his residence accepted the certified mail notice. One with actual notice of an administrative forfeiture cannot complain that he did not receive notice. See Whiting v. United States, 231 F.3d 70, 76 (1st Cir. 2000).

         Finally, while Defendant does not ask that the Court exercise its equitable jurisdiction, if he had asked, I would not. The following are considered in determining whether equitable jurisdiction is exercised: “(1) whether the government agents seized the property in callous disregard for the constitutional rights of the petitioner; (2) whether the petitioner has an individual interest in and need for the material he seeks to have returned; (3) whether the petitioner would be irreparably injured by denial of the return of property; (4) whether the petitioner has an adequate ...


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