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United States v. $48, More or Less, In United States Currency

United States District Court, W.D. Texas, Waco Division

April 26, 2017




         Before the Court is the Report and Recommendation of United States Magistrate Judge Jeffrey C. Manske. (Dkt. 19). The case was referred to Judge Manske for a Report and Recommendation on the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, as amended. The United States moved to strike the answer and supplement filed by Ephrain Joseph on January 6, 2017. (Dkt. 12). On January 20, 2017, Ephrain Joseph filed a response to the motion to strike, which included several attachments. (Dkt. 14). On March 10, 2017, the Magistrate Judge filed his Report and Recommendation on the motion to strike, recommending that the motion be granted. (Dkt. 19). To date, no objections have been filed.

         Because the Report and Recommendation filed by the Magistrate Judge ignores the response filed by Ephrain Joseph, the Court declines to adopt it. Instead, based on its review of the motion to strike, the response, the relevant case law, and the record in this case, the Court issues the following order.

         I. BACKGROUND

         Plaintiff United States of America filed a verified complaint for forfeiture of $48, 880.00 (“the Respondent Property”), more or less, in United States Currency, on December 11, 2017, pursuant to 18 U.S.C. § 981(a)(1) and 21 U.S.C. § 881(a)(6). (Compl., Dkt. 1, at 1). The complaint alleges that the Respondent Property was seized by the United States Postal Inspection Service (“USPIS”) on June 23, 2015, as part of an investigation into the importation of high-grade marijuana to the Killeen, Texas area. (Compl., Dkt. 1, at 3-7).

         Beginning on April 26, 2016, a notice of complaint of forfeiture was published on a government website ( for 30 days. (Decl. of Pub., Dkt. 7). In addition, the government “served” Ephrain Joseph and his common law wife, Erin Dizer, “with direct notice of [the] civil forfeiture action” on June 15, 2016. (Mot. to Strike, Dkt. 12, at 2 (citing Dkt. 9)).

         On July 5, 2016, Joseph submitted an “Answer to Verified Complaint for Forfeiture, ” where he admitted or denied the factual allegations set out in the Verified Complaint for Forfeiture. (Ans., Dkt. 8). He supplemented this answer on July 14, 2016, correcting the case number listed in the case caption included at the beginning of his prior answer. (Supp. Ans., Dkt. 10).

         On January 6, 2017, the government filed a motion to strike Joseph's answers, arguing that his answers should be struck because he failed to file a verified claim pursuant to Rule G of the Supplemental Rules of the Federal Rules of Civil Procedure. (Mot. to Strike, Dkt. 12, at 1-3). It argues that because Joseph was served with notice on June 15, 2016, any claim he wished to file was due by July 20, 2016, but that no claim had been filed. (Mot. to Strike, Dkt. 12, at 3-4). The government attaches three letters it sent to Joseph in support of its motion. (Mot. to Strike, Dkt. 12, Exs. A-C). The first two, sent in mid-July and mid-August, explained the requirements of Rule G and indicated that “the United States will move to strike [Joseph's] answer for failure to file the required claim.” (Mot. to Strike, Dkt. 12-1, Ex. A). The third letter, sent October 6, 2017, returned Joseph's mailing, explaining that “[Joseph's] latest submission fails because it has not been filed with the Court and does not set out the items required by the applicable court rule.” (Mot. to Strike, Dkt. 12-3, Ex. C). The government did not provide the Court with a copy of the mailing that it returned to Joseph, nor did it provide more information about the mailing's contents, but presumably his mailing was an attempt by Joseph to serve a claim for the Respondent Property on the appropriate government attorney. (See Mot. to Strike, Dkt. 12-3, Ex. C). In addition to its argument that Joseph's answer must be struck under Rule G, the government also argues that, because Joseph failed to submit a timely, proper claim, he has no statutory standing to contest the forfeiture. (See Mot. to Strike, Dkt. 12, at 5-6).

         On January 20, 2017, Joseph responded pro se to the government's motion, attaching “an original claim, ” a “previous claim, ” filed on or about June 16, 2016, a “complaint” filed on or about July 7, 2016, and “[n]umerous W-2 and bank statements which establish the source” of the Respondent Property. (Resp., Dkt. 14, at 1).[1] The “original claim” states, “I, Ephrain Joseph, state under penalty of perjury that I am the owner of defendant: $48, 880, more or less, in United States currency.” (Resp., Dkt. 14-1, at 1). It is dated January 19, 2017, and is signed by Joseph, who it identifies as “claimant.” (Resp., Dkt. 14-1, at 1). The “previous claim” is a document entitled “Claim of Ownership, ” which is addressed to the USPIS's Asset Forfeiture Unit and states, among other things, that Joseph is the owner of the Respondent Property. (Resp., Dkt. 14-1, at 2). It is dated June 16, 2016. (Resp., Dkt. 14-1, at 3). The “complaint” is similar to the “previous claim, ” but includes a case caption at the top. (Resp., Dkt. 14-1, at 4). It states that it is “In the United States Court of Federal Claims, ” but lists the case number for this action, 6:15-cv-0364. (Resp., Dkt. 14-1, at 4). It is dated as signed by Joseph on July 7, 2016. (Resp., Dkt. 14-1, at 4).[2] The final attachments are various W-2s for Joseph from 2009 through 2013, and bank statements for an account of Joseph's at the Bank of America from 2013 and 2014. (Resp., Dkt. 14-1, at 6-23). The government did not reply to Joseph's response.

         On March 10, 2017, the Magistrate Judge entered his Report and Recommendation. It recommended that the government's motion to strike be granted and that Joseph's answer be struck from the record. (Report & Recommendation, Dkt. 19, at 6). It used a test from the Eleventh Circuit to consider whether a court should, in its discretion, allow a late claim under Rule G. (Id. at 4-6). In applying that test to this case, however, the report ignored Joseph's response to the government's motion to strike-it specifically stated that “as of the signing of this report, Joseph has failed to file any claim as to the [Respondent Property], ” without considering whether Joseph's January 20, 2017 response included a claim. (Id. at 3). In addition, it did not address the possible relevance of that filing to the test it employed. (See Id. at 4-6).

         The Report and Recommendation explained that the parties had fourteen days in which to file objections to findings and recommendations it contained. (Id. at 7). No objections were filed.


         A. Review of a Magistrate Judge's Report and Recommendation

         Any party may contest the Magistrate Judge's findings and recommendations by filing written objections within fourteen days of being served with a copy of the Memorandum and Recommendation. 28 U.S.C. § 636(b)(1)(C). The objections must specifically identify those findings or recommendations that the party wishes to have the district court consider. Thomas v. Arn, 474 U.S. 140, 151 (1985). The Court must conduct a de novo review of any of the Magistrate Judge's conclusions to which a party has specifically objected. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). On the other hand, findings to which no specific objections are made do not require de novo review; the Court need only determine whether the Memorandum and Recommendation is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

         B. ...

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