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United States v. Betancourt-Vega

United States District Court, Fifth Circuit

December 19, 2013

UNITED STATES OF AMERICA,
v.
JOSE BETANCOURT-VEGA

MEMORANDUM OPINION AND ORDER

SAM A. LINDSAY, District Judge.

Before the court is Defendant's Motion for Return of Seized Property ("Def.'s Mot.") (Doc. 128), filed October 7, 2013, and the Government's Response to Defendant's Motion for Return of Property and Government's Motion to Dismiss ("Govt.'s Resp.") (Doc. 130), filed November 14, 2013. After careful consideration of the motions, response, record, and applicable law, the court denies Defendant's Motion for Return of Seized Property and grants the Government's Motion to Dismiss.

I. Background

On September 13, 2012, agents from the Drug Enforcement Agency ("DEA") searched Defendant's home and seized his 2010 Chevrolet Camaro ("Camaro"). Defendant admitted to receiving money for allowing methamphetamine to be manufactured in his home. The agents discovered an operational methamphetamine conversion laboratory, several kilograms of methamphetamine, and handguns. The agents also found two firearms in the trunk of the Camaro. On October 2, 2012, Jose Betancourt-Vega ("Defendant" or "Betancourt-Vega") was charged by indictment with conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846. On November 29, 2012, he pleaded guilty to maintaining a drug involved premises. Defendant was sentenced to 72 months of incarceration, one year of supervised release, and a $10, 000 fine on May 14, 2013.

Defendant contends, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, that the government unlawfully seized his Camaro. Def.'s Mot. 1. Defendant argues that he financed his vehicle and made installment payments with the money he earned from National Coatings Restorations. Id. Defendant requests the return of the Camaro, in addition to "all private books, records and propers, extracts, notes and copies therefrom, and all other property belong to [him] and [his] wife." Id. at 2. He also requests that the "books, records, notes, copies, and all clues and leads therefrom be suppressed" and that the government be "restrained from using" any of the mentioned materials. Id. Defendant also requests that the government be restrained from submitting any of this evidence to the "federal Grand Jury" and from using any of the evidence at trial for any purpose. Id. Finally, Defendant requests a hearing on this matter. Id.

In response, the government argues that the DEA administratively forfeited the car after Defendant was served with a notice of forfeiture and after he failed to file a valid claim for the car's return. Govt.'s Resp. 1. The government explains that Defendant did petition the DEA for the car's remission or mitigation but contends that the decision to grant or deny remission or mitigation is within the Attorney General's sole discretion and is not reviewable by this court. Id. According to the government, the Attorney General delegated the authority to grant remission or mitigation to the DEA, which denied the request. Id. The government requests the court to dismiss Defendant's motion.

II. Standard of Review

Defendant filed his motion for return of property pursuant to Rule 41(e), but since the criminal proceeding against him has already concluded, it should have been brought as a civil action for the return of property.[1] Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000). In these types of circumstances, it is appropriate for the court to treat a pro se petition as one seeking the appropriate remedy. Id. The court therefore treats Defendant's Rule 41(e) motion as a civil action under 28 U.S.C. § 1331, seeking the return of property, and the court will treat its review of that motion as a review of the government's motion to dismiss. Id.

III. Analysis

The court must address two issues: (1) whether the proper administrative forfeiture procedure was followed; and (2) whether the proper review of Defendant's petition for remission or mitigation was followed.

A. Administrative Forfeiture Procedure

When the government seizes property valued at less than $500, 000, it may use administrative forfeiture procedures but must provide notice before forfeiting the property. United States v. Robinson, 434 F.3d 357, 362 (5th Cir. 2005) (citations omitted). To satisfy this notice requirement, the government must: (1) publish notice of the administrative forfeiture; and (2) send written notice to any party who appears to have an interest in the seized article. Id. (citing Kadonsky v. United States, 216 F.3d 499, 503 (5th Cir. 2000)). The statute explains that a claim "may be filed not later than the deadline set forth in a personal notice letter (which deadline may not be earlier than 35 days after the date the letter is mailed), except that if that letter is not received, then a claim may be filed not later than 30 days after the date of final publication of notice of seizure." 18 U.S.C. § 983(a)(2)(B).

If a claimant files a claim, the administrative forfeiture proceedings cease, and the matter is referred to the United States Attorney for initiation of judicial forfeiture proceedings. Robinson, 434 F.3d at 362 (citing Kadonsky, 216 F.3d at 503). If no claim is filed, the property is summarily forfeited to the government. Id. (citing Barrera-Montenegro v. United States, 74 F.3d 657, 660 (5th Cir. 1996)). Once the administrative forfeiture is complete, a district court may review only "whether the forfeiture comported with constitutional due process guarantees." Id. (citing Kadonsky, 216 F.3d at 503). If a party "with an interest in forfeited funds failed to receive constitutionally adequate notice, the administrative forfeiture is void and must be vacated." Id. (citing Kadonsky, 216 F.3d at 503). Due process requires that the notice be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the [forfeiture] action and afford them an opportunity to present their objections." Id. (citing Barrera-Montenegro, 74 F.3d at 660).

The court determines that the forfeiture comported with all constitutional due process guarantees. The government mailed Defendant notice directly to three locations on October 12, 2012. For the first location, USPS.com stated that the letter was delivered on October 15, 2012. App. 3. For the second location, an individual signing in the signature block accepted delivery on October 16, 2012. Id. For the third location, the notice was returned by U.S. Postal Service stamped "Unclaimed" on November 14, 2012. Additionally, the government published notice in the Wall Street Journal on October 29, 2012, November 5, 2012, and November 12, 2012. Id. at 4. The published and mailed notices stated that the deadline to file a claim was November 16, ...


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