United States District Court, D. New Mexico
C. Anderson United States Attorney Stephen R. Kotz Assistant
United States Attorney United States Attorney's Office
Albuquerque, New Mexico Attorneys for the Plaintiff.
Torence Haigler Montgomery, Alabama Defendant pro se.
Toderick Smith Hope Hull, Alabama Defendant pro se.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the United States'
Motion to Strike Claimants' Answers for Lack of Standing,
filed July 5, 2018 (Doc. 12)(“Motion”). The Court
held a hearing on September 20, 2018. The primary issue is
whether the Court should strike Claimant Torence
Haigler's Answer, filed February 15, 2018 (Doc.
3)(“Haigler Answer”), and Claimant Toderick
Smith's Answer, filed February 15, 2018 (Doc.
4)(“Smith Answer”), because the Claimants lack
statutory standing. The Court grants the motion on the
condition that, if Haigler and Smith (“the
Claimants”) do not cure the deficiencies in their
pleadings within ten days of the entry of this order, the
Court will strike their Answers. The Court will allow the
Claimants ten days to cure deficiencies in their pleadings,
because it believes that allowing the Claimants a limited
period to cure the deficiencies is not inconsistent with the
language of Rule G of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions, will not thwart
Supplemental Rule G's underlying purposes, and, given the
equities, is consistent with the intent of Supplemental Rule
December 15, 2017, Plaintiff United States of America filed
its Verified Complaint for Forfeiture In Rem. See
Doc. 1 (“Complaint”). The res, or properties,
that are the subject of this action are $20, 000.00 in United
States currency. See Complaint ¶ 2i, at 1.
Haigler claims ownership of $7, 000.00 of the money,
see Haigler Answer at 1, and Smith claims ownership
of $7, 000.00 of the money, see Smith Answer at 1.
Complaint alleges that, on July 19, 2017, Border Patrol Agent
Israel Torrones stopped a 2014 black Ford Fusion at the
United States Border Patrol checkpoint located on I-10 west,
mile marker 120. See Complaint ¶ 7, at 2.
Smith, a United States citizen, was the driver, and Haigler
and Brando Pettus, also United States citizens, were the
occupants of the car. See Complaint ¶ 7, at 3.
While Torrones questioned the car's occupants, another
Border Patrol Agent, Jose Meza's trained drug detection
canine, “Veeto, ” alerted positively on the car
for the odor of an illegal controlled substance, after which
Torrones sought and obtained Smith's consent for a canine
inspection. See Complaint ¶ 8, at 2. Smith
moved the vehicle to a secondary inspection area, and Smith,
Haigler, and Pettus all exited the vehicle while Meza and
Veeto conducted a canine drug inspection. See
Complaint ¶ 9, at 2. Smith, Haigler, and Pettus all
admitted to smoking marijuana recently, and all denied --
twice -- that they were traveling with contraband or large
amounts of money. See Complaint ¶ 9, at 3.
Haigler, the vehicle's owner, consented to Meza
conducting a hand search of the vehicle. See
Complaint ¶ 10, at 3. From the glove compartment, Meza
recovered a plastic bag containing a large amount of United
States currency, and each occupant again denied the presence
of money in the car. See Complaint ¶ 10, at 3.
Meza informed the car's occupants that he had discovered
the bag of money, Smith stated, “Oh yeah, we're
going to buy a car.” Complaint ¶ 11, at 3. Meza
asked why the occupants had not informed him of the money
previously, and Haigler said, “I don't know. We
were going to buy a car.” Complaint ¶ 11, at 3.
Agents then separated the car's occupants from one
another, after which they provided conflicting accounts of
how much money was in the bag, how much each of them had
contributed, and where the money came from. See
Complaint ¶ 12, at 3. In a sterile room, Veeto alerted
positively to the bag of money for the odor of an illegal
controlled substance. See Complaint ¶ 15, at 4.
United States seeks forfeiture of the $20, 000.00 of United
States currency in the bag recovered from the vehicle,
pursuant to 21 U.S.C. § 881(a)(6), and 18 U.S.C.
§ 981(a)(c), which provides, “in part, for the
forfeiture of any property, real or personal, which
constitutes or is derived from proceeds traceable to an
offense constituting a ‘specific unlawful activity'
(SUA) as defined in 18 U.S.C. § 1956(c)(7), or
conspiracy to commit such offense.” Complaint ¶
20, at 5 (quoting 18 U.S.C. § 1956(c)(7)).
December 15, 2017, the United States filed its Complaint,
This is a civil action to forfeit and condemn to the use and
benefit of the United States of America property involved in
violations of the Controlled Substances Act and 18 U.S.C.
§ 1952 that is subject to forfeiture pursuant to 21
U.S.C. § 881(a)(6) and 18 U.S.C. § 981(a)(1)(C).
See Complaint ¶ 1, at 1. On January 24, 2018,
the United States Attorney's Office sent, via certified
and first class mail, copies of the Complaint and the Notice
of Complaint for Forfeiture, filed July 5, 2018 (Doc.
12-2)(“Notice”), to Haigler, Smith, and Mr.
Raymond Johnson, the attorney who represented them in the
related administrative forfeiture proceeding. See
Motion ¶ 3, at 2; Certified Mail and Receipts re Notice
of Complaint for Forfeiture at 1-10, filed July 5, 2018 (Doc.
12-1)(“Certified Mail and Receipts”). The Notice,
which was mailed to Haigler, Smith, and Mr. Johnson via
certified mail and first-class mail, states: “A civil
complaint seeking forfeiture pursuant to 21 U.S.C. §
881(a)(6) was filed on December 15, 2017 in the United States
District Court for the District of New Mexico on behalf of
the United States of America, plaintiff, against the
Defendant Property.” Notice at 1. The Notice further
All persons asserting an interest in or claim against the
Defendant Property and who have received direct notice of the
forfeiture action must file a verified claim with the Clerk
of this Court pursuant to Rule G(5) of the Supplemental Rules
for Admiralty or Maritime and Asset Forfeiture Claims,
thirty-five (35) days after the notice is
sent. In addition, any person having filed such a claim shall
also serve and file an answer to the complaint or a motion
under Rule 12 of the Federal Rules of Civil Procedure within
twenty-one (21) days after filing the claim.
Notice at 1 (emphasis in original).
February 16, 2018, the United States filed a Notice of
Publication, representing that a Notice of Forfeiture Action
-- substantially the same as the Notice -- was published on
www.forfeiture.gov from January 10, 2018, through February 8,
2018. See Complaint ¶ 2, at 2; Notice of
Publication, filed February 16, 2018 (Doc. 7). The Certified
Mail and Receipts indicate that Haigler received the
Complaint and the Notice via certified mail on January 27,
2018, see Certified Mail and Receipts at 2, and that
his attorney, Mr. Johnson, also received the documents via
certified mail, although Mr. Johnson did not date the return
receipt, see Certified Mail and Receipts at 8, 10.
The certified mailing to Smith was returned as unclaimed.
See Certified Mail and Receipts at 4. The United
States asserts, however, that the first-class mailings were
delivered to both Claimants. See Motion ¶ 6, at
3. Neither Claimant filed a verified claim with the Clerk of
the United States District Court for the District of New
Mexico. See Motion ¶¶ 6-7, at 3. On
February 15, 2018, the Claimants filed Answers. See
Haigler Answer at 1; Smith Answer at 1.
5, 2018, the United States filed the Motion. See
Motion at 1. The United States moves to strike the
Claimants' Answers, because the Claimants lack statutory
standing. See Motion at 1. The United States argues
that the Claimants filed only Answers, but not verified
claims under penalty of perjury, as Supplemental Rule G(5)(a)
requires, and that, accordingly, the Court should strike
their Answers pursuant to Supplemental Rule G(8)(c).
See Motion at 4.
Claimants do not file a response. See Motion at 1
(“Counsel for Plaintiff attempted to contact Claimants
pro se, Torence Haigler and Toderick Smith, via
letter regarding their position on this motion. Claimants
have not yet responded. Accordingly, the motion is filed as
Court held a hearing on the Motion on September 20, 2018.
See Draft Transcript of Motion Hearing (taken
September 20, 2018)(“Tr.”). The Court began
by noting that the Claimants were not present in the
courtroom. See Tr. at 2:5 (Court). The United States
explained that, after the United States filed its Complaint,
Haigler and Smith filed Answers. See Tr. at 2:11-15
(Kotz). The United States asserted that it provided notice to
both Claimants by serving them with the Complaint, the
Notice, and a letter that informed them that they would have
to file a claim under oath as Supplemental Rule G(5)(A)
requires. See Tr. at 2:16-20 (Kotz). The United
States noted that the Claimants filed answers on February 15,
2018, but filed no other pleadings, prompting the United
States to move to strike their Answers for failure to state a
claim. See Tr. at 2:20-25 (Kotz). The United States
argued that, by failing to file a verified claim, the
Claimants lack statutory standing because of their failure to
comply with Supplemental Rule G(5). See Tr. at 3:3-6
(Kotz). The Court asked the United States whether there are
cases with the same facts where a claimant has filed an
answer in court, but has not filed a claim, and whether the
correct remedy would be to strike the answers in those cases.
See Tr. at 3:7-13 (Court). The United States
asserted that striking the answers would be the correct
remedy. See Tr. at 3:11, 14-18 (Kotz).
Court next asked the United States what would happen if the
Claimants want to file an untimely claim after the hearing,
notarized and under oath. See Tr. at 3:19-22
(Court). The United States asserted that, to do so, the
Claimants would need to ask for leave of the Court.
See Tr. at 3:23-24 (Kotz). The Court next asked if
the Claimants would have to ask for leave of the Court to
file an administrative claim, and the United States asserted
that the administrative claim is a separate matter, and the
Claimants already have submitted claims in that matter.
See Tr. at 3:25-4:5 (Court, Kotz). The United States
argued that, notwithstanding the administrative proceeding,
Supplemental Rule G(5) requires the Claimants to file a
verified claim in the Court and then to follow that filing
with an answer, and that the administrative claim cannot
satisfy that requirement. See Tr. at 4:3-15 (Kotz).
The Court next asked the United States what the
Claimants' relationship is to the case, and the United
States responded that they were in the vehicle from which the
property at issue was seized. See Tr. at 4:16-22
(Court, Kotz). The Court sought clarification that the
Claimants were not charged when the property was seized, and
the United States confirmed that they were not. See
Tr. at 4:21-23 (Court, Kotz).
Court stated that it appeared to the Court that the Notice
was delivered by first class mail to both individuals and
that there was no response, and so the Court was inclined to
grant the Motion. See Tr. at 5:3-12 (Court). The
Court put on the record that the Court and the United States
waited past 3:30 p.m., thirty minutes after the hearing was
scheduled to begin, and no one appeared on the Claimants'
behalf, and no one contacted the Court's Courtroom Deputy
to arrange to appear by telephone or otherwise participate in
the hearing. See Tr. at 5:20-25 (Court). The United
States also confirmed that the Claimants had not contacted
it. See Tr. at 6:1-2 (Kotz).
REGARDING CIVIL FORFEITURE ACTIONS
civil asset forfeiture case, the United States is the
plaintiff, the property or asset is the defendant, and the
claimant is the party seeking to intervene. See United
States v. $148, 840 in U.S. Currency, 521 F.3d 1268,
1273 (10th Cir. 2008). At the pleading stage, the claimant
satisfies his or her burden of establishing constitutional
standing by “alleging a sufficient interest in the
seized property, such as an ownership interest, some type of
lawful possessory interest, or a security interest.”
United States v. $148, 840 in U.S. Currency, 521
F.3d at 1273 (citing United States v.
Rodriguez-Aguirre, 264 F.3d 1195, 1204 (10th Cir. 2001);
United States v. $515, 060.42 in U.S. Currency, 152
F.3d 491, 498-99 (6th Cir. 1998)).
Rule G “governs a forfeiture action in rem arising from
a federal statute.” Supp. R. G(1). To discharge its
notice obligations in a civil asset forfeiture action, the
United States must provide notice of the action to any
potential claimants. See Supp. R. G(4). Supplemental
Rule G(4)(a) relates to notice by publication. See
Supp. R. G(4)(a). It states: “A judgment of forfeiture
may be entered only if the government has published notice of
the action within a reasonable time after filing the
complaint or at a time the court orders.” Supp. R.
G(4)(a)(i). The notice must, unless the court orders
otherwise: (i) “describe the property with reasonable
particularity”; (ii) “state the times under Rule
G(5) to file a claim and to answer”; and (iii)
“name the government attorney to be served with the
claim and answer.” Supp. R. G(4)(a)(ii). Supplemental
Rule G(4)(b) relates to notice to known potential claimants.
It states: “The government must send notice of the
action and a copy of the complaint to any person who
reasonably appears to be a potential claimant on the facts
known to the government before the end of the time for filing
a claim under Rule G(5)(a)(ii)(B).” Supp. R. G(4)(b).
The notice must state: (i) the date the notice is ...