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