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United States v. $6

June 1, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$6,180.00 UNITED STATES CURRENCY DEFENDANT.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

REPORT AND RECOMMENDATION

This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial proceedings, including preparation of a Report and Recommendation on dispositive motions [10 ].*fn1 Before me is the motion of Simeon Leeper (the "claimant") to aside the forfeiture [6]. For the following reasons, I recommend that the claimant's motion be denied.

BACKGROUND

The government commenced this action in rem for forfeiture of $6,180.00 ("seized currency") that was recovered by the Southern Tier Drug Task Force from a vehicle the claimant was operating at the time of his arrest and from his person. Complaint [1]. The claimant has filed a claim to the seized currency [5] and now moves to set aside the forfeiture based on a lack of in rem jurisdiction over the seized currency and for lack of timely notice of the forfeiture [6].

ANALYSIS

A. Does the Court Lack In Rem Jurisdiction Over the Seized Currency?

The claimant argues that the court lacks in rem jurisdiction over the seized currency because the Jamestown Police had no authority to turn the funds over to the Federal authorities. Claimant's motion [6], p. 2.

"Upon receiving property seized pursuant to a search warrant, the court must either: (a) Retain it . . . ; or (b) Direct that it be held in the custody of the person who applied for the warrant . . ., upon condition that upon order of such court such property be returned thereto or delivered to another court." NY CPL §690.55(1). In accordance with this statute, the Chautauqua County Attorney, David Foley, obtained an ex parte turnover order from Jamestown City Court Judge Lamancuso permitting release of the seized currency held by Southern Tier Regional Drug Task Force to the "United States of Justice [sic] Drug Enforcement Administration". Government's response [8], Ex. A.

It is this fact which distinguishes this case from those relied upon by the claimant. For example, in United States v. $490,920 in U.S. Currency, 911 F.Supp. 720, 724 (S.D.N.Y.1996), "the issue of in rem jurisdiction ar[ose] from the failure of the state and federal authorities to secure a turnover order from [the state court], as provided by New York's warrant and seizure scheme, prior to transferring the Funds from state to federal custody".

Similarly, in In re Application Authorizing the Release of Five Thousand Seventy-Six Dollars ($5,076.00) Seized Pursuant to Search Warrant Log Number 436/2005, 11 Misc.3d 718, 721 (Sup. Ct. Kings Cty 2006), the court declined to sign an order permitting the local authorities to turnover the seized funds to the United States Drug Enforcement Administration. Although the court found that a "plain reading of the statute would suggest that where there has been no previous federal involvement in the case, a court lacks statutory authority to grant the instant request and turn over these funds to a federal authority", such a requirement does not appear in the statute. Id., 720-721. It also does not appear that any other court has adopted this as a necessary condition to transfer funds from local to federal authorities.*fn2

Moreover, if the claimant wishes to challenge the propriety of Judge Lamancuso's transfer order, such challenge should be made to that court.

Therefore, I find that this court has in rem jurisdiction over the seized currency.

B. Did the Claimant Receive Timely Written Notice of the Forfeiture?

The claimant argues that he was provided with written notice of the forfeiture proceeding on August 24, 2009, more than 60 days after the June 4, 2009 seizure.*fn3 Claimant's motion [6], p. 3. He relies on the 60-day ...


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