intended to contest the forfeiture which had been specifically
agreed to in the Plea Agreement.
On September 1, 1998, Maeng retained new counsel. On September
7, 1998, the Government received a letter from Maeng's counsel
proposing a "modification" of the terms of the Plea Agreement and
suggesting a "settlement" of the matter. The Government responded
in a letter dated September 11, 1998, rejecting Maeng's proposed
"settlement" and stating that the Government would oppose any
effort by Maeng to file a claim in this action in light of the
Maeng submitted a letter to the Court on October 5, 1998,
requesting permission to file a late claim. In a letter to the
Court dated October 13, 1998, the Government opposed Maeng's
request based, in part, on the fact that in Maeng had agreed to
forfeiture of the relevant funds as part of the Plea Agreement.
The parties appeared before the Court on October 14, 1998, at
which time the Government agreed that Maeng should be permitted
to file papers in support of his motion to file a late claim.
On October 23, 1998, Maeng filed the instant motion for an
order nunc pro tunc enlarging the time to file a Notice of
Claim. Oral argument was heard on November 18, 1998, at which the
time the motion was deemed fully submitted.
I. Maeng's Proposed Claim
Maeng's proposed verified claim seeks a determination of
whether forfeiture of the entire amount of money in the civil
action would be grossly disproportional to the gravity of the
offense and thus unconstitutional under the Excessive Fines
Clause, as analyzed by the Supreme Court in Bajakajian.
Civil forfeiture actions pursuant to 18 U.S.C. § 981 are
governed by the Supplemental Rules for Certain Admiralty and
Maritime Claims. The Government contends that Maeng lacks
standing to contest the forfeiture because he has not complied
with Supplemental Rule C(6) which requires that a claimant in a
forfeiture proceeding file a sworn notice of claim within ten
days from receipt of notice of the commencement of a civil
forfeiture action.*fn1 The Government is correct that if no
claim is properly filed, a putative claimant lacks standing to
contest forfeiture of the property. See e.g., United States v.
Approximately 2,538.85 Shares of Stock, 988 F.2d 1281 (1st Cir.
1993); United States v. Eng., 951 F.2d 461, 468 (2d Cir. 1991);
see also Ortiz-Cameron v. Drug Enforcement Administration,
139 F.3d 4, 6 ("If a putative claimant who has received proper notice
fails to file within Rule C(6)'s time limits, he or she may not
bring a future claim for the properties at issue."). The purpose
behind Rule C(6) is "to require claimants to come forward as
quickly as possible after the initiation of forfeiture
proceedings, so that the court may hear all interested parties
and resolve the dispute without delay." United States v. Various
Computers and Computer Equipment, 82 F.3d 582, 585 (3d Cir.
"Strict compliance with Supplemental Rule C(6) is typically
required." United States v. Amiel, 995 F.2d 367, 371 (2d Cir.
1993); see also, United States v. Beechcraft Queen Airplane,
789 F.2d 627, 630 (8th Cir. 1986) (district court did not abuse
its discretion in striking answer that was not preceded by
verified claim); United States v. 218 Panther Street,
745 F. Supp. 118, 120 (E.D.N.Y. 1990) (claimant lacks standing to
contest forfeiture because he did not timely file claim and
answer). A claimant in a civil forfeiture action may file a late
claim upon a showing of "excusable neglect" under Federal Rule of
Civil Procedure 6(b)(2). See United States v. Borromeo,
945 F.2d 750, 753 (4th Cir. 1991);
United States v. All Assets of Blue Chip Coffee, Inc.,
836 F. Supp. 104, 108 (E.D.N.Y. 1993). In applying this standard,
courts have emphasized the equitable and fact-specific nature of
the inquiry, and have examined such factors as the reasons for
the prospective claimants delay, the prospective claimants good
faith, whether the Government encouraged the delay, whether the
prospective claimant was proceeding pro se, whether the
prospective claimant advised the Government of its interest in
the defendant-in-rem before the claim deadline, and whether the
Government would be prejudiced by allowing the later filing. See
Borromeo, 945 F.2d at 753-54; United States v. $10,000.00 in
United States Funds, 863 F. Supp. 812, 814 (S.D.Ill. 1994);
United States v. $175,918.00 in United States Currency,
755 F. Supp. 630, 633 (S.D.N.Y. 1991).
Here, Maeng, Han Kuk and Interlink received notice of the
forfeiture action on July 31, 1998, giving Maeng until August 10,
1998 to file a claim. Maeng has failed to establish that his
failure to file a timely claim in this action under Supplemental
Rule C(6) was the product of "excusable neglect." Maeng had
promised in the Plea Agreement that he would forfeit the funds at
issue in this action. Maeng was on notice by July 31, 1998 that
the Government had commenced this action pursuant to the Plea
Agreement. He had also, by this time, become aware of the Supreme
Court's decision in Bajakajian. The Bajakajian decision was
issued on June 22, 1998. Maeng admits that during his August 2,
1998 meeting with Anolik, they discussed whether there "may be an
opportunity to challenge the forfeiture," not withstanding the
Plea Agreement, in light of the Supreme Court's ruling in
Bajakajian. (Maeng Aff. ¶ 17).*fn2 Yet, Maeng did not apprise
the Government of his intent to contest the forfeiture until
September 7, 1998.*fn3
Relying on United States v. $175,918.00 in United States
Currency, 755 F. Supp. 630 (S.D.N.Y. 1991), Maeng asserts that he
has "done all that he could reasonably be expected to do." Id.
at 633. However, unlike Maeng, the claimant in United States v.
$175,918.00 in U.S. Currency, had not agreed to forfeit the
defendant-in-rem funds as part of a plea agreement. Moreover, he
was incarcerated and was proceeding pro se. Despite these
obstacles, the Court found that the claimant had been "diligent
in pursuing his rights throughout the litigation."*fn4
Maeng claims that his failure to file a timely claim was the
product of his attorney's negligence and ignorance with respect
to the time within which a claim must be filed. Specifically,
Maeng avers that he "underst[ood]" from Anolik's associate that
he had "at least" 30 days to file a claim. (Maeng Aff. ¶ 18).
Courts have consistently held, however, that such claims do not
constitute the kind of "excusable neglect" required to permit the
filing of an untimely claim in a civil forfeiture action. See
e.g., United States v. Property Identified As $88,260.00 in
United States Currency, 925 F. Supp. 838, 843 (D.D.C. 1996)
(counsel's ignorance of the applicable rules and
misinterpretation of the law is not excusable neglect or
mistake); United States v. A Parcel of Real Property,
724 F. Supp. 1081, 1083 (E.D.N.Y. 1988) (prospective claimants'
assertion that they were in "a state of complete confusion"
because they were consulting with criminal defendant's attorney
rather than their own "does not . . . constitute a valid excuse
for their failure to comply with Rule C(6)"); United States v.
Premises Known as Lots 14, 15, 16, Etc., 682 F. Supp. 288, 290
(E.D.N.C. 1987) ("Mere ignorance or unfamiliarity with the law is
clearly inadequate, especially since the
necessity of filing a claim is clear from a reading of
Supplemental Rule C(6)").
Maeng asserts that the Government would not be prejudiced by
allowing the late filing of a verified claim. The Government
counters that having fully performed its obligations under the
Plea Agreement, it would be affirmatively prejudiced if Maeng
were now allowed to assert a late claim that "should have been
asserted at a time before Maeng was sentenced in his criminal
case." The Government's assertion is compelling. Even if the
Government was not prejudiced by Maeng's post sentencing change
of position, "[a]llowing a late filing whenever the government
would not be prejudiced would subvert the strict time limits
established by Supplemental Rule C(6) and encourage claimants to
litigate every untimely filing in a forfeiture case." Borromeo,
945 F.2d at 755 (J. Wilkinson, concurring).
Accordingly, Maeng's motion to file a late claim is
For the reasons stated above, Maeng's motion is denied.
It is so ordered.