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United States of America v. $20

December 12, 2011

UNITED STATES OF AMERICA, PLAINTIFF
v.
$20,870.00 UNITED STATES CURRENCY, DEFENDANT



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action seeking forfeiture of United States currency pursuant to 21 U.S.C. § 881(a)(6). Now before the Court is Plaintiff's application [#6] to strike a claim filed on February 26, 2010 and for default judgment. For the reasons that follow the application is denied.

BACKGROUND

Prior to May 2009, law enforcement officials were investigating suspected illegal narcotics activity by Freddy Montero-Lima ("Montero-Lima") and Elio Tillan ("Tillan"). Tillan had two prior drug felony convictions. On May 22, 2009, police executed a search warrant at Tillan's apartment at 239 Andrews Street, Apartment 9, Rochester, New York, and seized $20,870.00 in cash. In the bedroom of that apartment, police also found mail addressed to Tillan. The following day, police stopped a vehicle being driven by Montero-Lima, in which Tillan was a passenger, and executed a search warrant. Police discovered three kilos of cocaine in the car. Subsequently, [Plaintiff commenced this action] on November 10, 2009, by filing a Verified Complaint for Forfeiture with the United States District Court, Western District of New York. An Arrest Warrant in Rem was issued by the Clerk of the Court on November 10, 2009. That warrant was executed by the United States Marshal['s Service] on November 18, 2009[.]

A copy of the Arrest Warrant in Rem and the Verified Complaint was served upon persons believed to have a claim to, or interest in the defendant currency, and/or their attorney. On November 10, 2009, a copy of the Arrest Warrant in Rem and the Verified Complaint was sent via certified mail, return receipt requested, to David Morabito, Esq. [("Morabito")], as attorney for Elio Tillan, 117 West Commercial Street, New York 14445.

As required by Rule G(4)(a)(iv)(c)of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, notice of this action was posted on an official government internet site (www.forfeiture.gov) for thirty days beginning on November 11, 2009. Such publication was completed on December 12, 2009.

On or about January 18, 2010, due to a delay in the postal service in delivering the notice to Mr. Morabito, the parties agreed that the due date for Tillan's claim would be thirty days (30) from receipt of this notice, which was February 8, 2010.

On or about February 2, 2010, Mr. Morabito was present at the United States Attorney's Office and requested an additional two week extension to file a verified claim. [Plaintiff] and Mr. Morabito entered into a stipulation, extending the claim deadline to February 26, 2010. This stipulation was approved by the court on February 10, 2010.

On February 26, 2010, Mr. Morabito filed a claim "upon information and belief," which claim [was] not signed by Tillan.

Carducci Affirmation [#6] ¶ ¶ 2-8.

The Claim that Morabito filed indicated that Tillan was the owner of the $20,870. seized from his apartment, and that such money was not related to narcotics trafficking. In that regard, Morabito stated, upon information and belief, that the money "was the result of legitimate employment as a construction worker." Claim [#5] at ¶ 17. Along with the claim, Morabito submitted a letter to the Court, dated February 25, 2010, stating, in pertinent part:

I originally represented defendant Elio Tillan on a case in the County Court of Monroe County. . . . At the time of my representation, it was my understanding that the defendant wanted me to pursue his rights in this forfeiture action. I have sent letters dated December 21, 2009, January 22, 2010, February 4, 2010, and February 18, 2010. Said letters were sent to Elmira Correctional Facility. Whether he has received the correspondence is unknown.

Accordingly, in order to preliminarily preserve his rights on any potential forfeiture action, I am enclosing the hereinstated Verified Claim. It should be noted that I have filed this claim 'upon information and belief.' The limited information I have relative to this forfeiture involves conversations ...


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