summary judgment. The Second Circuit Court of Appeals has stated
that the "fact that there has been no response to a summary
judgment motion does not . . . mean that the motion is to be
granted automatically. Such a motion may properly be granted
only if the facts as to which there is no genuine dispute `show
that the moving party is entitled to a judgment as a matter of
law.'" Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)
(quoting Fed.R.Civ.P. 56(c)). This recognizes that the initial
burden is upon the moving party to prove that it is entitled to
judgment as a matter of law. However, courts in the Second
Circuit "have granted summary judgment by default where a party
has failed to respond to the motion in violation of court rules
and/or scheduling orders." In re Towers Fin. Corp. Noteholders
Litig., 996 F. Supp. 266, 273-74 (S.D.N.Y. 1998) (citing a
multitude of cases). Here, claimant Agudelo has violated Local
Civil Rule 56.1, which requires that a party opposing summary
judgment provide a separate statement indicating the material
facts which are in dispute. Local Civil Rule 56.1(c) further
provides that "[a]ll material facts set forth in the statement
required to be served by the moving party will be deemed to be
admitted unless controverted by the statement required to be
served by the opposing party."
In the present case, the movant's statement of undisputed
material facts includes the fact that Mr. Agudelo knowingly
failed to declare the cash located in his baggage. (¶ 17). This
fact, if true, precludes Mr. Agudelo from validly challenging
the government's seizure of the defendant in rem. Under
31 U.S.C. § 5316, failure to report the transport of more than
$10,000 in currency from within the United States to a
destination outside the United States subjects the unreported
currency to seizure and forfeiture. Thus, movant's undisputed
fact that Mr. Agudelo knowingly failed to declare the
$138,381.00 (¶ 17), now deemed admitted since claimant Agudelo
failed to file a statement of disputed facts pursuant to Local
Rule 56.1, is sufficient to entitle movant to summary judgment
as a matter of law.
B. Summary Judgment on the Merits
Even if Mr. Agudelo's failure to submit a statement of
disputed facts is overlooked, movant would be entitled to
summary judgment as a matter of law because Mr. Agudelo is
indisputably a fugitive from justice. 28 U.S.C. § 2466(a)
A judicial officer may disallow a person from using
the resources of the courts of the United States in
furtherance of a claim in any related civil
forfeiture action . . . upon a finding that such
(1) after notice or knowledge of the fact that a
warrant or process has been issued for his
apprehension, in order to avoid criminal
(A) purposefully leaves the jurisdiction of the
(B) declines to enter or reenter the United
States to submit to its jurisdiction; or
(C) otherwise evades the jurisdiction of the
court in which a criminal case is pending against
the person; and
(2) is not confined or held in custody in any other
jurisdiction for commission of criminal conduct in
Judge Dearie found that Mr. Agudelo committed perjury in his
deposition in the present case. Pl. Exh. 25. On December 8,
1999, he ordered Mr. Agudelo to surrender to Marshals by noon on
December 27, 1999, to begin his term of imprisonment on the
violation of probation. Id. Mr. Agudelo has not, as yet,
surrendered himself to the Marshals. Pl. Exh. 29. On January 5,
2000, Judge Dearie issued a warrant for
Mr. Agudelo's arrest for failure to surrender to the Marshals.
Pl. Exh. 27. Based on these facts, Mr. Agudelo meets all the
criteria for being a fugitive barred from using the resources of
the courts of the United States.
First, this civil forfeiture proceeding is clearly related to
the criminal matter upon which Mr. Agudelo remains a fugitive.
Mr. Agudelo pled guilty to knowingly failing to report the
transport of more than $10,000 from a location within the United
States to a destination outside the United States, in violation
of 31 U.S.C. § 5316. For that crime, Mr. Agudelo was sentenced
to two years of probation. Pl. Exh. 22, 28. However, his perjury
in the present case violated his probation and subjected him to
a prison sentence. Thus, this civil forfeiture proceeding, in
which he seeks the return of the seized funds that he was
convicted of transporting out of the country, is clearly related
to the criminal matter for which he is sought.
Second, Mr. Agudelo certainly has notice that a warrant has
been issued for his arrest. At Mr. Agudelo's hearing for
violation of probation, Judge Dearie made it clear that failure
to surrender himself to the Marshals would make him subject to
arrest. Pl. Exh. 25. Third, Mr. Agudelo's continued failure to
surrender himself to begin his term of custody establishes that
he has either left the United States, refused to reenter the
United States, or otherwise evaded the jurisdiction of Judge
Dearie's court. Finally, there is no evidence that he is
confined in another jurisdiction. As a result, the movant is
entitled to summary judgment as a matter of law with respect to
Mr. Agudelo's claim.
II Ms. Castro's Claim
A. Failure to Comply with the Local Rules
Before discussing the merits of Ms. Castro's case, it should
be noted that her papers in opposition to Plaintiff's motion for
summary judgment are not in compliance with the Local Civil
Rules. First, her failure to include a memorandum of law
violates Local Civil Rule 7.1, which reads "all motions and all
oppositions thereto shall be supported by a memorandum of law,
setting forth the points and authorities relied upon in support
of or in opposition to the motion. . . . Willful failure to
comply with this rule may be deemed sufficient cause for the
denial of a motion or for the granting of a motion by default."
The papers submitted by Ms. Castro take the form of an attorney
affirmation, not a memo of law.
In addition, Ms. Castro's papers, including her statement of
disputed material facts made pursuant to Local Civil Rule 56.1,
are substantively defective because they are unsupported by
affidavits based on personal knowledge or otherwise admissible
evidence as required by Federal Rule of Civil Procedure 56(e)
and Local Civil Rule 56.1(d). Local Civil Rule 56.1(d) states,
"[e]ach statement of material fact by a movant or opponent
must be followed by citation to evidence which would be
admissible, set forth as required by Federal Rule of Civil
Procedure 56(e)." (emphasis added). Such requirements are
especially relevant in forfeiture proceedings. See Mercado v.
U.S. Customs Service, 873 F.2d 641, 645 (2d Cir. 1989)
("Because there is a substantial danger of false claims in
forfeiture proceedings, more was required than the conclusory,
hearsay, on-information-and-belief statements of Mercado's
lawyer") (citations omitted). This defect, therefore, renders
all movant's alleged undisputed facts, undisputed in fact.
As a result of these procedural and substantive defects, the
plaintiff's motion for summary judgment should be granted by
default. However, in the interests of thoroughness this court
will reach the merits of the issues raised by plaintiff's motion
for summary judgment and the opposition papers submitted by Ms.
B. Standing in a Judicial Forfeiture Proceeding
Whether a claimant has standing is "the threshold question in
every federal case, determining the power of the court to
entertain the suit." In re Gucci, 126 F.3d 380, 387-88 (2d
Cir. 1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95
S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In order to maintain a claim
against property involved in a judicial forfeiture proceeding,
claimants must have both standing under the statutes governing
their claim, and standing under Article III of the Constitution.
United States v. Cambio Exacto, S.A., 166 F.3d 522, 526 (2d
Cir. 1999). While lack of statutory standing can be excused at
the sound discretion of the trial judge, Article III standing is
a prerequisite for a court to attain subject matter jurisdiction
over a matter. United States v. Premises and Real Property at
4492 South Livonia Rd., 889 F.2d 1258, 1262 (2d Cir. 1989).
1. Statutory Standing
A judicial forfeiture proceeding is an action in rem. United
States v. U.S. Currency in the Amount of $2,857.00,
754 F.2d 208, 212 (7th Cir. 1985). The Supplemental Rules for Certain
Admiralty and Maritime Claims of the Federal Rules of Civil
Procedure ("Supplemental Rules") apply to actions in rem. See
Fed.R.Civ.P., Supp. Rule A(2). Thus, it is well settled that the
Supplemental Rules apply to civil forfeiture proceedings. See
Cambio Exacto, 166 F.3d at 526 n. 3. The Federal Rules of Civil
Procedure also apply to civil forfeitures except to the extent
that they are inconsistent with the Supplemental Rules.
Fed.R.Civ.P., Supp. Rule A. Supplemental Rule C(6) sets forth
the procedural requirements that a claimant must comply with to
establish standing to contest an in rem forfeiture proceeding.
Mercado, 873 F.2d at 645.
(a) Timeliness of Claim
The version of Supplemental Rule C(6) in effect at all times
pertinent to this action provides, in pertinent part:
The claimant of property that is the subject of an
action in rem shall file a claim within 10 days after
process has been executed, or within such additional
time as may be allowed by the court, and shall serve
an answer within 20 days after the filing of the
claim. The claim shall be verified on oath or solemn
affirmation, and shall state the interest in the
property by virtue of which the claimant demands its
restitution and the right to defend the action.
Fed.R.Civ.P., Supp. R. C(6) (1992). Under this rule, a
claimant's 10 day time period within which to file a claim
begins to run when he is served with notice of the seizure, and
the warrant for the arrest of defendant in rem has actually
been executed. United States v. Approximately Two Thousand,
Five Hundred Thirty-Eight Point Eighty-Five Shares of Stock
Certificates of the Ponce Leones Baseball Club, Inc.,
988 F.2d 1281, 1288 (1st Cir. 1993). On August 13, 1998, claimant Agudelo
was served with notice of the seizure, together with the
complaint in the instant action, by certified mail addressed to
his attorney. Pl. Exh. 15. Plaintiff argues that since Mr.
Agudelo and Ms. Castro share counsel, Ms. Castro's time to file
a claim began to run on August 13, 1998 as well. Even if this is
the case, which is doubtful, Ms. Castro and Mr. Agudelo had
until August 31, 1998 to timely file a claim. Under Federal Rule
of Civil Procedure 6(e), whenever a party is required to do some
act within a prescribed period after the service of a notice
upon the party, and the notice is served upon the party by mail,
three days are added to the prescribed period. In addition,
Federal Rule of Civil Procedure 6(a) provides that "[w]hen the
period of time prescribed or allowed is less than 11 days,
intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation." Applying these rules, Ms. Castro
had until August 31, 1998 to file a timely claim, assuming that
her time began to run on August 13.*fn1
If, as is likely, the August 13 service was not applicable to
Ms. Castro, then her time to file a claim began to run on the
date she saw the published notice or, if she never saw the
published notice, on the last day that notice was published. In
this case, notice was last published on August 28, 1998. Pl.
Exh. 16. Therefore, the last possible date Ms. Castro could have
filed a timely claim was 10 days from August 28, 1998. Keeping
in mind Rule 6 of the Federal Rules of Civil Procedure, at best
Ms. Castro had until September 17, 1998 to file a notice of
claim. Since Ms. Castro's only purported claim was filed on
August 25, 1998, that claim is timely and all other as yet
unmade claims are untimely under any view. Having determined
that the August 25 Amended Notice of Claim was timely filed,
this court must determine whether it was otherwise sufficient
under Supplemental Rule C(6) to establish statutory standing for
(b) Verification Requirement for Claims
In addition to the timing requirements of Supplemental
Rule C(6), claims in a forfeiture proceeding must also be verified on
oath or solemn affirmation. Because there is a substantial
danger of false claims in forfeiture proceedings, Mercado, 873
F.2d at 645, verification on oath or solemn affirmation is an
essential element of a claim under Rule C(6). United States v.
U.S. Currency in the Amount of $2,857.00, 754 F.2d 208, 213
(7th Cir. 1985). Here, the Amended Notice of Claim filed on
August 25 was signed by Mr. Agudelo and Ms. Castro, but was not
verified on oath or affirmation by either of them. Pl. Exh. 19.
Thus, it fails to meet one of the procedural requirements for
(c) Whose Claim was it?
Perhaps more importantly, the Amended Notice of Claim does not
clearly identify Ms. Castro as a claimant. Supplemental
Rule C(6) requires that each claimant file a claim in conformity
with its procedures. Mr. Agudelo filed a notice of claim on
August 7, 1998 which states "Now comes, JOSE MANUEL
AGUDELOGARCIA, the Claimant," and declares that "[a]t all
relevant times, Claimant was then and there lawfully in
possession of the Defendant-in-rem. . . ." Pl. Exh. 17. The
Notice of Claim was signed by Mr. Agudelo under the closing
"CLAIMANT." Id. On August 25 an Amended Notice of Claim was
filed. It states "Now come, JOSE MANUEL AGUDELO-GARCIA, the
Claimant, and YOLANDA CASTRO, his wife," and declares that "[a]t
all relevant times, Claimant and his wife were then and there
lawful owners of the Defendant-in-rem. . . ." Pl. Exh. 19. The
Amended Notice of Claim was signed by both Mr. Agudelo and Ms.
Castro under the closing "CLAIMANT" (singular). Id. In all
other respects the two claims are identical.
Because the Amended Notice of Claim does not identify Ms.
Castro as a claimant, instead referring to her as Mr. Agudelo's
wife,*fn2 and it continues to refer to Mr.
Agudelo as the "Claimant" (singular), it is unlikely that the
Amended Notice of Claim was even intended to serve as a claim on
behalf of both Mr. Agudelo and Ms. Castro jointly. It appears
that the Amended Notice of Claim was in fact intended to remedy
a deficiency in Mr. Agudelo's original notice of claim: namely
Mr. Agudelo's failure to claim ownership of the defendant in
rem. Mr. Agudelo's August 7 Notice of Claim stated that Mr.
Agudelo was merely in lawful possession of the defendant in
rem at all relevant times, but failed to claim an ownership
interest in the currency. PI. Exh. 17. As such, Mr. Agudelo
would have lacked Article III standing to contest the
forfeiture. Thus, the Amendment was designed to remedy that
defect in his previous Notice of Claim.
Regardless of the intent of the Amended Notice of Claim, its
effect fell well short of fulfilling an important function of
the procedural requirements of Supplemental Rule C(6): notifying
the government and the court that the claimant is entitled to
join the action. See $2857.00, 754 F.2d at 213: United States
v. $175,918.00 in United States Currency, 755 F. Supp. 630, 632
(S.D.N.Y. 1991) ("This rule is designed to provide the
government with timely notice of a claimant's interest in
contesting the forfeiture and, by requiring a sworn claim, to
deter the filing of false claims.") (citations omitted). In
addition to the facts that the Amended Notice of Claim failed to
identify Ms. Castro as a claimant, and referred to Mr. Agudelo
as CLAIMANT (singular), the very title of Ms. Castro's purported
claim, "Amended Notice of Claim," indicates that it is was an
amendment to a previous claim. Pl. Exh. 19. Since Ms. Castro had
not previously filed a notice of claim, the Amended Notice of
Claim was insufficient to put the government or the court on
notice that a new claimant was entering the case.
(d) Verified Answer Required
Even if this court were to construe the Amended Notice of
Claim to include Ms. Castro as a claimant, she would still lack
statutory standing based on her failure to file a timely
verified answer to the government's verified complaint.
Supplemental Rule C(6) requires a claimant to "serve an answer
within 20 days after the filing of the claim." Fed.R.Civ.P.,
Supp. R. C(6). Ms. Castro has never served an answer in this
case. She now contends that Mr. Agudelo's August 7 answer should
be deemed to apply retroactively to her claims in light of the
Amended Notice of Claim which purports to represent a joint
claim by Mr. Agudelo and Ms. Castro. This argument must fail.
Mr. Agudelo's answer cannot serve as Ms. Castro's answer because
unlike the claim required in a forfeiture proceeding, the answer
cannot be generic; it is a party's direct response to specific
factual allegations. The August 7 answer was completed at the
direction of Mr. Agudelo, not Ms. Castro. Its denials and
admissions are those of Mr. Agudelo, not Ms. Castro. It does not
assert any claims, defenses, or demands on her behalf. Finally,
the answer was not signed nor verified under oath by Ms. Castro.
As a result, Mr. Agudelo's August 7 answer cannot be construed
to serve as Ms. Castro's answer simply because the Amended
Notice of Claim mentions Ms. Castro as a part owner of the
defendant in rem.
(e) Judicial Discretion to Excuse Defects in Claim and
Even though it is clear from the foregoing discussion that Ms.
Castro has failed to comply with the procedural requirements of
Supplemental Rule C(6), the trial court has discretion to excuse
such noncompliance. Although strict compliance with Supplemental
Rule C(6) is typically
required, a court has discretion in appropriate circumstances to
depart from the strict compliance standard. United States v.
Amiel, 995 F.2d 367, 371 (2d Cir. 1993) (citations omitted).
See also 4492 South Livonia Road, 889 F.2d at 1262 ("When
. . . a claimant has made a sufficient showing of interest in
the property through filing with the court a motion and
accompanying affidavits, technical noncompliance with the
procedural rules governing the filing of claims may be
excused."). Both cases are also consistent with Cambio Exacto,
166 F.3d 522 (holding that a District Judge had not abused his
discretion by requiring strict compliance with Supplemental
Rule C(6)). In light of its procedural posture, it cannot be said
that Cambio Exacto requires strict compliance with the
procedures outlined in Supplemental Rule C(6); it remains
subject to the sound discretion of the trial judge.
In the present case, however, Ms. Castro has failed to give
sufficient grounds for her request that the court exercise its
discretion to relieve her of the harsh consequences emanating
from her failure to file a valid claim and answer in accordance
with Supplemental Rule C(6). Courts typically exercise their
discretion when claimants have timely placed the court and
government on notice of their interest in the property and
intent to contest the forfeiture, recognizing both the
good-faith effort put forth and the lack of prejudice to the
government under such circumstances. $175,918.00, 755 F. Supp.
at 633 (citing United States v. U.S. Currency in the Amount of
$103,387.27, 863 F.2d 555, 562 (7th Cir. 1988)). Thus, in
$175,918.00, the court granted an incarcerated pro se claimant
an extension of time to file because he had been diligent in
pursuing his rights through litigation, he had timely
communicated his interest in the currency to the court and the
government, and the government would not be prejudiced by the
extension since it had timely notice of claimant's intent to
contest the forfeiture and did not dispute that claimant had a
sufficient ownership interest in the property to be a proper
claimant. 755 F. Supp. at 633.
Here, Ms. Castro has not been diligent in pursuing her rights
in this case. Although represented by counsel from the outset,
she has failed to follow the formal procedures for filing a
proper claim, and has filed no answer. In addition, because of
the vagueness of the Amended Notice of Claim, neither the court
nor the government were aware that Ms. Castro was a claimant.
Finally, there is clearly a dispute as to Ms. Castro's ownership
interest in the property. Therefore, unlike in $175,918.00,
the government would be prejudiced if Ms. Castro were allowed
to file an answer and pursue a claim at this late juncture.
Other discretionary factors considered by courts, including 1)
the time at which the claimant became aware of the seizure, 2)
whether the government encouraged the delay, 3) the reasons
proffered for the delay, 4) the sufficiency of the answer in
meeting the basic requirements of a verified claim, and 5)
whether the claimant timely petitioned for an enlargement of
time, United States v. One (1) 1979 Mercedes 450SE Vehicle,
651 F. Supp. 351, 353 (S.D.Fl. 1987) (citations omitted) also
weigh against granting Ms. Castro relief. First, Ms. Castro
became aware of the seizure almost immediately. Castro Depo. 31:
9-13. Second, the government did not encourage Ms. Castro's
failure to file the answer. Third, Ms. Castro's reason for not
answering the complaint is that she thought that Mr. Agudelo's
previous answer would be retroactively applied to her once the
Amended Notice of Claim was filed. As discussed fully above,
such a suggestion is clearly erroneous, and probably
disingenuous considering that she was represented by counsel at
the time. The
fourth factor is inapplicable since no answer was filed by Ms.
Castro. Fifth, Ms. Castro never petitioned for an extension of
time to file her answer. Thus, this court sees no legitimate
reason for exercising its discretion to excuse Ms. Castro's
failure to file a timely answer. As a result, Ms. Castro lacks
the requisite statutory standing to contest the forfeiture of
the defendant in rem.
2. Article III Standing
In contrast to statutory standing, the requirements for
Article III standing cannot be excused at the discretion of the
trial judge. "Because Article III of the Constitution limits the
subject-matter jurisdiction of federal courts to `Cases' and
`Controversies,' a litigant must also demonstrate constitutional
standing: a `sufficient stake in an otherwise justiciable
controversy to obtain judicial resolution of that controversy.'"
Cambio Exacto, 166 F.3d at 526 (quoting Sierra Club v.
Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 31 L.Ed.2d 636
(1972)). To establish standing under Article III a claimant must
allege a distinct and palpable injury to himself that is the
direct result of the putatively illegal conduct of the adverse
party and likely to be redressed by the requested relief.
Cambio Exacto, 166 F.3d at 527 (internal citations omitted).
In a forfeiture proceeding, a claim of ownership will establish
a claimant's standing to challenge the forfeiture of his
property. Id. When the government moves for summary judgment
in a forfeiture proceeding, that claim of ownership will be
scrutinized in a manner consistent with the principles of
Rule 56 of the Federal Rules of Civil Procedure.
(a) Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, a motion for summary
judgment may only be granted when the evidence, which is to be
viewed in the light most favorable to the non-movant, presents
no genuine issue of material fact. Samuels v. Mockry,
77 F.3d 34, 35 (2d Cir. 1996); Fed.R.Civ.P. 56(c). The movant bears the
initial burden of demonstrating the absence of any genuine
issues of material fact. Adams v. Dept. of Juvenile Justice,
143 F.3d 61, 65 (2d Cir. 1998). The burden then shifts to the
non-movant who must then come forward with specific facts
showing that there is a genuine issue for trial. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986). Federal Rule of Civil
Procedure 56(e) requires that affidavits on a motion for summary
judgment be based on personal knowledge and admissible evidence.
See 4492 South Livonia Rd., 889 F.2d at 1267. A genuine issue
of material fact exists if "a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Mere conclusory allegations, speculation or conjecture, however,
will not avail a party resisting summary judgment. Kulak v.
City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
(b) No Evidence of Ownership
In the present case, Ms. Castro can prove no set of facts
which would establish her ownership of the defendant in rem,
and cannot otherwise demonstrate an injury-in-fact stemming from
the seizure of the defendant in rem. As such, she lacks
Article III standing to contest the forfeiture. Ms. Castro's
claimed injury stemming from the seizure of the defendant in
rem, rests solely on her contention that she jointly owns the
defendant in rem with Mr. Agudelo. In an attempt to
demonstrate that she and Mr. Agudelo jointly had the economic
means to accumulate the currency seized, Ms. Castro alleges the
following facts in her Statement of Material Facts Pursuant to
Local Civil Rule 56.1: 1) she and Mr. Agudelo shared their
financial resources, 2) she has worked as a seamstress,
beautician, caterer, and owner of Yomocol Taxi Rental Company
over the course of the nearly 12 years she has lived in the
United States, 3) she was the recipient of a $40,000 divorce
settlement from a previous marriage in Colombia, 4) she had
$5,000 in personal savings when she arrived in the United States
in 1984, and 5) she won $5,000 from the lottery in 1996. None of
these conclusory allegations, however, are supported by any
evidence. As such, they fail to meet the claimant's burden of
providing evidence of an injury-in-fact stemming from the
(c) Claimants Lacked Financial Means to Accumulate
Moreover, the government has provided substantial evidence to
refute the ultimate conclusion urged by Ms. Castro — that she
and Mr. Agudelo jointly owned the defendant in rem at the time
it was seized. Ms. Castro's first allegation, that she and Mr.
Agudelo pooled financial resources, is not a material fact which
would deny the proper grant of summary judgment in light of the
overwhelming evidence that Mr. Agudelo did not have the
financial means to contribute to the accumulation of any
significant amount of money.
In April, 1997 Mr. Agudelo submitted an affidavit in support
of his application to waive the cost bond required in the
administrative forfeiture proceeding. Pl. Exh. 11. In that
affidavit, Mr. Agudelo states that his maximum annual income
since entering the United States in August, 1986 was $19,000.
Id. In his April, 1997 presentence investigation report, Mr.
Agudelo again stated that his income was approximately $19,000
annually. Pl. Exh. 8, ¶ 40. Mr. Agudelo has never filed a tax
return in the United States. Agudelo Depo. 90:291:3. In
addition, his deposition reveals that Mr. Agudelo brought no
money or assets with him when he entered the United States, and
he did not bring any money into the United States on any of his
trips from Colombia. Agudelo Depo. 23:19-23, 81: 3-19.
Mr. Agudelo's expenses include: $100 to $150 per week he sent
to support his children in Columbia (Pl.Exh. 8, ¶ 26), an
unspecified amount of rent on a house in Columbia where his wife
and children live (Agudelo Depo. 46:7-15), $80 per week in rent
on the Brooklyn apartment where he lived with Ms. Castro and his
cousin (Agudelo Depo. 18:9-17), and approximately one-third of
the total household expenses of $1100*fn3 on that apartment
(Pl.Exh. 8). These expenses total between $13,760 and $16,360
annually, not including the unknown amount of rent paid on the
Columbia residence. Therefore, in his best years, Mr. Agudelo
could have netted between $2,640 and $5,240 annually in earnings
after necessary expenses. These sums fall considerably short of
establishing that Mr. Agudelo had the financial means to
accumulate anywhere near the amount of money at stake in this
Ms. Castro's second allegation, that she worked numerous jobs
during her twelve years in the United States, is also immaterial
since the net earnings from those jobs was too small to
accumulate any significant savings. Ms. Castro's tax returns
from 1991 to 1997 reflect an annual adjusted gross income
ranging from $1,106 to $16,477, with a total for that period of
$46,596. Pl. Exh. 32. She also approximated her monthly expenses
at around $600, Castro Depo. 64:6-65:6. Even assuming she had
slightly lower expenses in previous years, she would not have
accumulated any savings from 1991 to 1997.
Thus, the fact that she was employed in various jobs is not a
material fact which, if true, would establish her ownership of
the defendant in rem.
Ms. Castro's third and fourth allegations — she entered the
United States with $5,000 in 1984 and shortly thereafter
received a divorce settlement in the amount of $40,000 — are
likewise immaterial in light of Ms. Castro's inability to
establish how much of the original $45,000 remained at the time
of the seizure. Even assuming that she had $45,000 shortly after
entering the United States in 1984 — a fact which Ms. Castro
can't substantiate — she has no records, bank accounts, or other
documents to establish how much money she had at the time of the
seizure in 1997, over twelve years after she entered the United
States. In light of her income and necessary expenses during
that period of time, the amount of money she had in 1984 is
immaterial to a determination of her financial ability to
accumulate substantial savings before the seizure in 1996.
Ms. Castro's fifth allegation, that she won $5,000 from the
lottery in 1996, is also not a material fact which would deny
the proper grant of summary judgment because it is a small
amount of money in relation to the amount that she is claiming
she owns. Even assuming that Ms. Castro could substantiate the
$5,000 in lottery winnings in 1996, that amount is minuscule in
comparison to the $138,381 of which she is claiming joint
In light of the lack of affidavits or other evidence to
support Ms. Castro's bald allegations of ownership of the
defendant in rem, and the substantial evidence supplied by the
government demonstrating that she and Mr. Agudelo lacked the
financial means to accumulate such a sum of money, it is clear
that no reasonable jury could find that Ms. Castro and Mr.
Agudelo jointly owned the defendant in rem. As a result,
summary judgment is appropriate because Ms. Castro has failed to
establish constitutional standing to contest the forfeiture of
the defendant in rem.
For the foregoing reasons, I find that Mr. Agudelo and Ms.
Castro lack both statutory and Article III standing to contest
the government's seizure of the defendant in rem. I further
find that all other potential claimants are in default.
Accordingly, I recommend that summary judgment be entered for
the United States, and that a final decree of forfeiture and
order of delivery be issued.
Any objections to this Report and Recommendation must be filed
with the Clerk of the Court, with a copy to the undersigned,
within ten (10) days of receipt of this Report. Failure to file
objections within the specified time waives the right to appeal
the District Court's order. See 28 U.S.C. § 636(b)(1) (2000);
Fed.R.Civ.P. 72, 6(a), 6(e).
Sept. 19, 2002.