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HONG v. UNITED STATES

February 1, 1996

YE WEN HONG, Plaintiff, against UNITED STATES OF AMERICA, Defendant


The opinion of the court was delivered by: GOLD

REPORT AND RECOMMENDATION

 GOLD, S., U.S.M.J.:

 Plaintiff Ye Wen Hong, proceeding pro se brings this action seeking the return of currency and property seized from her by law enforcement officers when she was arrested on January 28, 1993. The government has moved to dismiss. By order dated July 12, 1995, the Honorable Reena Raggi referred this matter to me for report and recommendation. For the reasons set forth below, I respectfully recommend that the government's motion to dismiss be granted.

 BACKGROUND

 On January 28, 1993, plaintiff was arrested and charged with possessing and intending to distribute drugs. At the time of her arrest, agents of the Drug Enforcement Administration ("DEA") seized $ 16,306 in currency and various items of jewelry from plaintiff.

 After plaintiff's arrest, the government initiated forfeiture proceedings against the $ 16,306 in currency pursuant to 21 U.S.C. § 881. On March 22, 1993, the DEA sent plaintiff written notice of its intent to forfeit the seized currency. The notice was sent via certified mail, return receipt requested, to the jail where plaintiff was then incarcerated. See Declaration of William J. Snider, P 4(b), submitted with Defendant's Memorandum of Law ("Snider Decl."); Notice of Seizure, Snider Decl. Ex. 1. Plaintiff apparently received the notice of seizure letter at the Metropolitan Correctional Center ("MCC") on March 26, 1993. See Snider Decl., P 4(b); Postal Receipt Card, Snider Decl. Ex. 2. *fn1" Notice of the seizure was also published in USA Today, a newspaper of general circulation in the Eastern District of New York, for three consecutive weeks beginning on March 31, 1993. Snider Decl. P 4(b) and Ex. 13.

 Both the notice of seizure letter and the publication notice explained that a claimant could challenge the forfeiture action in federal court by filing a claim and cost bond, or an affidavit of indigency in lieu of the cost bond, within twenty days of the first publication of the notice of the seizure. The notices also explained that a claimant had the right to file a petition seeking remission or mitigation of the forfeiture within thirty days of receiving the notice. See Notice of the Seizure, Snider Decl. Ex. 1; Publication Notice, Snider Decl. Ex. 13.

 On May 7, 1993, not having received a properly filed claim or response from plaintiff within the twenty-day statutory period, the DEA issued a Declaration of Forfeiture with respect to the $ 16,306 in currency. See Declaration of Forfeiture, Snider Decl. Ex. 14.

 On March 9, 1995 plaintiff filed this action seeking the return of her currency. *fn2" Plaintiff asserts that the government violated her right to due process by failing to give her proper notice of the seizure and by forfeiting her money without first holding a hearing to determine whether it was the proceeds of illegal activity. Finally, plaintiff claims that the currency was taken from her in violation of the Double Jeopardy and Excessive Fines Clauses of the Fifth and Eighth Amendments. See Plaintiff's Statement of Claims at 5.

 The government has moved to dismiss on the ground that this Court lacks subject matter jurisdiction because plaintiff's currency was the subject of a properly executed administrative forfeiture. The government further contends that the administrative forfeiture did not violate the Double Jeopardy or Excessive Fines Clauses of the Constitution.

 DISCUSSION

 The Jewelry

 Plaintiff claims that DEA agents seized various items of jewelry from her at the time of her arrest. Specifically, plaintiff claims that agents seized a Rolex watch, a Christian Dior watch, a gold neckchain and an ankle bracelet. See Plaintiff's Statement of Claims, Ex. 2. The government concedes that this property was seized from plaintiff upon her arrest and never forfeited, and states that it will be returned as soon as plaintiff provides an address where the property may be sent. See Defendant's Memorandum of Law at 3, n.2. Accordingly, I respectfully recommend that plaintiff be directed to provide the government with the requested information by February 23, 1996, and that the government be directed to return plaintiff's property to the designated address no later than thirty days thereafter.

 The Currency

 I. Jurisdiction Over Plaintiff's Claim

 It is well-settled that, once the administrative process has begun, the res subject to forfeiture is removed from the district court. As a result, the court's jurisdiction is limited to a review of the procedural propriety of the forfeiture. See Toure v. United States, 24 F.3d 444, 446 (2d Cir. 1994); United States v. One 1987 Jeep Wrangler, 972 F.2d 472, 480 (2d Cir. 1992): Onwubiko v. United States, 969 F.2d 1392, 1398 (2d Cir. 1992).

 As indicated in the Declaration of Forfeiture, plaintiff's currency was seized pursuant to 21 U.S.C. § 881. Section 881(a)(6) renders currency involved in narcotics transactions subject to forfeiture. Forfeitures pursuant to Section 881 are governed by the procedures applicable to forfeitures of property for violation of the customs laws. 21 U.S.C. § 881(d). These procedures are set forth in 19 U.S.C. §§ 1602-1619. See also 21 C.F.R. §§ 1316.75-1316.79. As provided in these sections, an agency's initiation of administrative forfeiture proceedings divests the district court of jurisdiction unless an interested party files a claim and posts a bond, or submits proof of financial inability to post a bond, within twenty days of the date on which notice of the seizure is published. 19 U.S.C. § 1608; 21 C.F.R. § 1316.76 (1994); 19 C.F.R. § 162.47(e). See Linarez v. U.S. Dep't of Justice, 2 F.3d 208, 211 (7th Cir. 1993). If a claimant chooses not to file a claim and post a bond within the allotted period of time, an administrative forfeiture occurs by default and may not be challenged in district court. 19 U.S.C. § 1609(a); 21 C.F.R. § 1316.77. See also One 1987 Jeep Wrangler, 972 F.2d at 479. A declaration of forfeiture issued pursuant to these procedures "has the same ...


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