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UNITED STATES v. COLUCCIO

February 2, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD COLUCCIO, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 This civil action stems from criminal proceedings brought against defendant Richard Coluccio. The United States has made an application pursuant to the Federal Debt Collection Procedures Act, 28 U.S.C. §§ 3001 et seq. (the "FDCPA"), to execute upon a cost bond posted in an administrative forfeiture proceeding. Defendant's mother, Theresa Coluccio, has claimed that she paid for the cost bond and that therefore the amount of the bond -- $ 2,500 -- should be returned to her. For the reasons set forth below, Ms. Coluccio's request is denied.

 FACTS

 I. Background

 On March 3, 1987, the defendant pleaded guilty to one count of violation of the federal narcotics laws. On April 16, 1987, he was sentenced by Judge Bramwell to twelve years of imprisonment, a $ 150,000 fine and a special assessment of $ 150. *fn1"

 On September 29, 1986, the DEA seized a Piper Aztec airplane (the "plane") owned by defendant. The DEA thereafter commenced an administrative forfeiture proceeding against the plane pursuant to 21 U.S.C. § 881. By notice of the proceeding mailed to the defendant on December 31, 1986, he was informed that if he wished to contest the forfeiture, he would have to file a cost bond in the amount of $ 2,500 pursuant to 19 U.S.C. § 1608. (Declaration of Elliot M. Schachner, Dated July 27, 1992 ("Schachner Decl.") Ex. 9).

 Defendant submitted a cashier's check in the amount of $ 2,500 to the DEA by letter dated January 20, 1987 from the attorney then representing him. (Schachner Decl. Ex. 10). The letter read in relevant part:

 
Enclosed please find a cashier's check in the amount of $ 2,500.00 which is to be used to contest the forfeiture of the asset seized from my client.
 
Also enclosed is a claim of ownership filed on behalf of my client. . . .

 (Schachner Decl. Ex. 10).

 In March 1991, the Government commenced a civil forfeiture proceeding against the plane pursuant to 21 U.S.C. §§ 881 (a)(6) & 881(a)(4) in an action captioned United States v. One 1969 Piper Aztec, CV-91-1010. (Schachner Decl. Ex. 11). The defendant, as a claimant in the action, moved to dismiss the complaint, and by order dated March 23, 1992, Judge Spatt dismissed the complaint on the grounds that it did not set forth sufficient evidence of probable cause and was not pleaded with sufficient particularity. Judge Spatt granted the Government leave to file an amended complaint within 30 days, and when the Government did not do so, Judge Spatt dismissed the action by order dated May 6, 1992. (Schachner Decl. Ex. 14 & 15).

 A. The Plane Application

 In April 1992, the Government filed and served upon defendant an Application for Writ of Execution (the "Plane Application") pursuant to the FDCPA, 28 U.S.C. § 3202(b). The Plane Application stated, in relevant part, that the United States intended to sell the plane and to apply the sale proceeds to ...


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