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U.S. v. U.S. CURRENCY IN THE SUM

September 30, 1991

UNITED STATES OF AMERICA, PLAINTIFF,
v.
UNITED STATES CURRENCY IN THE SUM OF THREE HUNDRED NINETY-THREE THOUSAND NINE HUNDRED SIXTY-SEVEN ($393,967) DOLLARS, MORE OR LESS; CERTAIN ITEMS OF JEWELRY; AND THE PREMISES AND REAL PROPERTIES LOCATED AT 175-20 WEXFORD TERRACE APARTMENTS 3V, 9G, AND 16M, JAMAICA ESTATES, NEW YORK, AND ALL SHARES OF STOCK WHICH HAVE BEEN ALLOCATED TO SAID COOPERATIVE APARTMENTS, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM DECISION AND ORDER

In this civil forfeiture action, the Court is asked to determine whether the default of the claimant, Nidia Campos ("Campos"), should be excused and whether the Court should grant her motion to vacate a decree of forfeiture and enlarge the time within which to submit a claim and to file an answer. For the reasons set forth below, the claimant's motion to vacate the decree of forfeiture is denied.

BACKGROUND

The claimant Campos is currently incarcerated in relation to a criminal action pending before the Honorable Carol Amon, and entitled United States v. Edgar Vargas, et al., docketed at CR-89-564. She is named as a defendant in that action.

The defendant property in this in rem action consists of currency in the amount of $393,967, items of jewelry, two cooperative apartments and cooperative shares for those apartments. The Government initiated this forfeiture action under the Comprehensive Drug Abuse Prevention and Control Act.

In its complaint, the Government alleges that the defendant currency was "intended to be used to facilitate the sale, manufacture, transportation and/or distribution of a controlled substance in violation of 21 U.S.C. § 841 et seq." (¶¶ 23, 26). In addition, the Government contends that the defendant premises, real properties, and shares of stock allocated to the cooperative apartments "constituted the proceeds of the sale . . . of a controlled substance . . ." and were used ". . . and/or intended to be used to commit or to facilitate the sale . . ." (¶¶ 29, 32) and were therefore subject to forfeiture to the United States under 21 U.S.C. § 881(a)(6) and (a)(7).

Pursuant to Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims, the clerk of the district court issued a warrant of arrest for service on the defendant property ordering the United States Marshal to direct the defendant to appear, in accordance with Rule C(6), within ten days of service of the notice to interpose a claim. The defendant was also directed to file a responsive pleading either within twenty days of filing the claim or within thirty days of service, whichever was less (Rule B(3) of the Supplemental Rules of Admiralty and Maritime Claims).

According to the Government, on September 26, 1990, the United States Marshals Service personally served copies of the verified complaint in rem on potential claimants Nidia Campos and Jose Rincon-Maya, who were both incarcerated at the Metropolitan Correctional Center (Declaration in Opposition to Motion to Vacate Decree of Forfeiture ¶ 4). Pursuant to Rule C(4), notification of the action was published in the New York Post on October 1, 2 and 3, 1990 (¶ 7).

No responsive pleadings were filed and on December 4, 1990, a default was entered in this Court against the property. On motion of the Government, a default judgment was ordered pursuant to Rule 55(b.) (¶¶ 9, 10).

PROCEDURAL SETTING

On May 20, 1991, counsel for the claimant Campos moved to vacate the decree of forfeiture and order of delivery that was entered upon the default pursuant to Federal Rules of Civil Procedure 55(c) and 60(b). Counsel also seeks an order permitting him to serve (1) a claim within 10 days, and (2) an answer to the complaint within 20 days, pursuant to Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims.

In his affidavit in support of the motion, counsel for the claimant contends that unlike his prior contacts with the Government in handling two previous forfeiture proceedings for claimant Campos, he was not notified of the present forfeiture proceeding despite his written request to be informed. The relevant allegations are as follows:

  "4. On or about December 26, 1989, pursuant to
  21 U.S.C. § 881, the Drug Enforcement Administration
  issued a Notice of Seizure, addressed to claimant
  at a Queens, New York address, with respect to
  $27,875.00 in United States Currency seized in this
  District on or about August 9, 1989.
    At that time, claimant was in custody pursuant
  to a Detention Order issued in the criminal
  action.
  5. The agency Notice of Seizure was referred to me
  as CAMPOS' attorney, and I thereafter timely
  served and filed a Verified Claim of Ownership
  executed by CAMPOS and a Cost Bond in the amount
  of $2,788.00 . . . The Verified Claim and Cost
  Bond were accompanied by a letter, addressed to
  the Chief Counsel of the Asset Forfeiture Section
  of the D.E.A., signed by me, and containing a
  request that any further correspondence concerning
  this matter be sent to me as counsel to CAMPOS
  [emphasis supplied].
  6. Thereafter the D.E.A. sent written
  acknowledgement of this Claim to me, as CAMPOS'
  attorney, at my office address. Copies of the
  administrative Notice of Seizure, CAMPOS' Verified
  Claim, my cover letter, and the D.E.A.
  acknowledgment are annexed hereto collectively as
  Exhibit A.

Counsel for Campos goes on to allege a second notice of seizure with respect to jewelry valued at $42,280. Campos apparently received the notice at the Metropolitan Correctional Center in Manhattan and referred it to counsel. The attorney summarizes the same procedure as noted above in handling this second notice. Based on these actions, counsel for Campos addressed a letter to Assistant United States Attorney Linda B. Lakhdhir in the Eastern District of New York, in which he requested

    "that a copy of the agency's seizure notice be
  sent to me as CAMPOS' counsel. In the same letter
  I also requested that if the agency had any other
  plan for forfeiture proceedings, I be notified"
  (¶ 9).

Having complied with the appropriate procedures and having advised the Government that he wished to receive notice, counsel for ...


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