United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge.
On April 6, 2004, nearly a decade ago, Plaintiff Rene Oswald Cobar was arrested in the Southern District of New York in connection with a money laundering investigation, in the course of which $209, 775 in U.S. Currency was seized. Proceeding pro se, Plaintiff now seeks the return of the seized currency from the Asset Forfeiture Section of the Drug Enforcement Administration ("DEA"). He claims that the DEA improperly seized the currency, and that he did not receive adequate notice of the forfeiture proceedings, in violation of his due process rights. Because Plaintiff's action is time-barred, the Court grants the DEA's motion to dismiss Plaintiff's complaint.
A. Plaintiff's Arrest and Prosecution
On April 6, 2004, Plaintiff and an individual named Filadelfo Sanabria-Erazo were arrested in New York City in connection with a DEA investigation into money laundering in New York and Nevada. (Compl. 2; Def. Br., Exh. B, ¶¶ 2-4). When DEA agents arrested Plaintiff and Sanabria-Erazo, they seized $209, 775 (the "Currency") from Plaintiff. ( Id .). In a post-arrest statement, Plaintiff advised the agents that the Currency belonged to Sanabria-Erazo, and that Sanabria-Erazo had agreed to pay Plaintiff $1, 000 to accompany Sanabria-Erazo to New York for a money-laundering transaction. (Def. Br., Exh. B, ¶ 7).
On April 7, 2004, a criminal complaint was filed in the United States District Court for the District of Nevada, charging Plaintiff and Sanabria-Erazo with conspiracy to commit money laundering. (Def. Br., Exh. A). Arrest warrants were issued in the District of Nevada, and Plaintiff was presented that same day in this District, pursuant to Federal Rule of Criminal Procedure 5(c)(3). See United States v. Cobar, No. 04 Mag. 708. (Def. Br., Exh. C). On April 27, 2004, Plaintiff was transferred to the District of Nevada to face the charges in the complaint.
On May 5, 2004, a grand jury in the District of Nevada returned an indictment (the "2004 Indictment") charging Plaintiff and others with conspiracy to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii), and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and (h). (Def. Br., Exh. D). Plaintiff was arraigned in Nevada on May 24, 2004, at which time he entered a plea of not guilty on both counts. See United States v. Cobar, No. 04 Cr. 174 (D. Nev.). On January 24, 2005, on the Government's motion, the court dismissed the money laundering charge for lack of venue (Pl. Opp., Exh. F), and on January 26, 2006, also on the Government's motion, the court dismissed the 2004 Indictment without prejudice for lack of venue ( id ., Exh. G).
On January 24, 2007, a grand jury in the District of Nevada indicted Plaintiff on various narcotics offenses (the "2007 Indictment"), including conspiracies to import and to distribute cocaine and heroin. (Pl. Opp., Exh. H). United States v. Cobar, No. 07 Cr. 014 (D. Nev.). During Plaintiff's trial on the 2007 Indictment, the Currency was introduced as evidence against Plaintiff. (Compl. 4). The jury found Plaintiff guilty of three counts of the 2007 Indictment. Plaintiff was sentenced principally to a term of 235 months' imprisonment, and is currently serving that term.
B. The Administrative Forfeiture of the Currency
Sometime after the Currency was seized, the Government initiated administrative proceedings to forfeit it. ( See Rashid Decl., Exh. 18). To that end, on May 18, 2004, pursuant to 19 U.S.C. § 1607(a) and 18 U.S.C. § 983(a), Defendant sent a written Notice of Seizure by certified mail, return receipt requested, to (i) Plaintiff, in care of addresses in Miami, Florida, and a correctional facility in Brooklyn, New York; and (ii) Plaintiff's attorney for the Rule 5(c)(3) proceedings in this District. ( Id ., Exh. 1-6). The Notice of Seizure provided, in relevant part:
The above-described property [i.e., $209, 775 in U.S. Currency seized in New York, New York, from Plaintiff] was seized by Special Agents of the Drug Enforcement Administration ("DEA") for forfeiture pursuant to Title 21, United States Code (U.S.C.), Section 881, because the property was used or acquired as a result of a violation of the Controlled Substances Act.... You may petition the DEA for return of the property or your interest in the property.... You should review the following procedures very carefully.
If you want to request the remission (pardon), or mitigation of the forfeiture, you must file a petition for remission or mitigation with the Forfeiture Counsel of the DEA within thirty (30 days) of your receipt of this notice.
In addition to, or in lieu of petitioning for remission or mitigation, you may contest the forfeiture of the seized property in UNITED STATES DISTRICT COURT. To do so, you must file a claim with the Forfeiture Counsel of the DEA by June 22, 2004.
( Id ., Exh. 1). The notice sent to Plaintiff at the Miami address was returned to Defendant on June 14, 2004, without signature, and with a notation listing an address in Las Vegas, Nevada. ( Id ., Exh. 2). The notice sent to Plaintiff at the Brooklyn address was also returned to Defendant on June 1, 2004, without signature, and with a notation "Return to Sender, Refused." ( Id ., Exh. 6). On the other hand, a return receipt was returned to Defendant for the notice sent to Plaintiff's attorney. ( Id ., Exh. 4).
Defendant also published the Notice of Seizure in the Wall Street Journal. (Rashid Decl., Exh. 13). See 19 U.S.C. § 1607(a) (requiring that notice for seizures of property not exceeding $500, 000 "be published for at least three successive weeks in such manner as the Secretary of the Treasury may direct"). The notice in the Wall Street Journal was published once a week for three successive Mondays on June 7, 14, and 21, 2004. ( Id ., Exh. 13). The published notice was substantively equivalent to the mailed notices, except that it provided any claimant until July 21, 2004, to submit a claim. ( Id .).
On July 22, 2004, after confirming Plaintiff's residential address and incarceration status, Defendant sent additional Notices of Seizure to Plaintiff by certified mail, return receipt requested, at an address in Miami, Florida (with a different zip code than the address to which the initial notice had been sent), and at the North Las Vegas Detention Center. (Rashid Decl., Exh. 14-17). Each of these notices was identical to the prior notices, except that they extended the time by which Plaintiff could file a claim to August 26, 2004. ( Id .). The notice sent to the Miami address was returned to Defendant without signature, and with a notation "Returned to Sender, Unclaimed." ( Id ., Exh. 15). The notice to the North Las Vegas Detention Center, however, was accepted for delivery, though the signatory on the return receipt was an individual other than Plaintiff. ( Id ., Exh. 17).
Defendant did not receive a claim from Plaintiff by August 26, 2004 ( see Rashid Decl. ¶ 4(k)), a fact that Plaintiff does not dispute. On September 8, 2004, the Currency was forfeited to the United States. ( Id ., Exh. 18). The Declaration of Forfeiture stated:
The [$209, 775] has been seized by agents of the DRUG ENFORCEMENT ADMINISTRATION pursuant to 21 U.S.C. Section 881. Notice of the seizure has been sent to all known parties who may have a legal or possessory interest in the property. Also, in accordance with 19 U.S.C. Section 1607, notice of the seizure has been published and no claim has been filed for the property within 30 days from the date of last publication of the advertisement. On this date, [Forfeiture Counsel has] examined this matter, and found there was sufficient information to support the forfeiture of this property.
( Id. ).
C. Plaintiff's Post-Forfeiture Communications ...