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United States v. Holovko

United States District Court, D. Maryland, Northern Division

December 15, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DMYTRO HOLOVKO, Defendant Criminal No. WDQ-11-0050

For USA, Plaintiff (1:11-cr-00050-WDQ): Stefan D Cassella, LEAD ATTORNEY, Peter M Nothstein, Rod J Rosenstein, Office of the United States Attorney, Baltimore, MD.

Dmytro Holovko, Plaintiff (1:14-cv-01178-WDQ), Pro se.

ORDER

William D. Quarles, Jr., united States District Judge.

On January 16, 2013, the Court entered a consent order of forfeiture against Dmytro Holovko. ECF No. 283. On April 5, 2013, criminal judgment was entered against Dmytro Holovko. ECF No. 403. On July 23, 2013, the Court ordered the consent order of forfeiture to be amended to include a parcel of land in Tucson, Arizona. ECF No. 446 (second amendment to the consent order).

Beginning October 2, 2013, Holovko's father, Ing. Dmytro Holovko, a resident of the Czech Republic, filed an application and motions for reconsideration of the forfeiture. ECF Nos. 473, 478, 482, 483.[1] On February 20, 2014, the government responded to Mr. Holovko's application and first motion. ECF No. 480. The government noted that Mr. Holovko's pleadings were not filed under penalty of perjury, and asked that Mr. Holovko be given an additional 30 days to comply with 21 U.S.C. § 853(n) (3) .[2] On April 4, 2014, in compliance with section 853(n)(3), Mr. Holovko filed a petition for the return of his property. ECF No. 485.

On April 10, 2014, the Court issued an Order dismissing without prejudice Mr. Holovko's petition, and directing the Clerk of the Court to institute the petition as a civil forfeiture complaint. ECF No. 487; see also Civil No. WDQ-14-117 8, ECF No. 1. On December 3, 2014, the Court ordered Mr. Holovko to remit the $400.00 civil filing fee or move for indigency status. Civil No. WDQ-14-1178, ECF No. 2. Also on December 3, 2014, the government responded to the Court's Order, suggesting that it had been entered in error. Civil No. WDQ-14-1178, ECF No. 3; Criminal No. WDQ-11-0050, ECF No. 499.[3]

Under Federal Rule of Criminal Procedure 36, " [a]fter giving any notice it considers appropriate, the court may at any time . . . correct an error in the record arising from oversight or omission." Rule 36 is similar to Federal Rule of Civil Procedure 60(a), [4] which permits the Court, " on motion or on its own, with or without notice, " to " correct a . . . mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record." [5]

Here, the government sought forfeiture under Federal Rule of Criminal Procedure 32.2 and 21 U.S.C. § 853(a). See, e.g., ECF No. 283.[6] Under 21 U.S.C. § 853(n)(2), any third party " asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may . . . petition the court for a hearing to adjudicate the validity of his alleged interest in the property." Under Rule 32.2(c), when " a third party files a petition asserting an interest in the property to be forfeited, the court must conduct an ancillary proceeding, " to which certain rules of civil procedure may apply.[7] The ancillary proceeding is not a separate civil proceeding; in fact, 21 U.S.C. § 853(k) bars third parties from " commenc[ing] an action at law or equity against the United States concerning the validity of his alleged interest in the property, " except as 21 U.S.C. § 853(n) provides.[8]

Here, Mr. Holovko correctly filed his third party petition under 21 U.S.C. § 853(n)(3) in the criminal docket associated with his son's case; thus, the Court's conversion of Mr. Holovko's third party petition into a civil complaint was in error.

Accordingly, under Federal Rule of Criminal Procedure 36, the Court will vacate its April 10, 2014 Order[9] dismissing Mr. Holovko's petition, [10] and will direct the Clerk to reinstate that petition in the Criminal No. WDQ-11-0050. The government will have 14 days from the date of this Order to respond to Mr. Holovko's petition. Further, under Federal Rule of Civil Procedure 60(a), the Court will vacate its December 3, 2014 Order[11] directing Mr. Holovko to remit the filing fee, or move for indigency status. The Court will direct the Clerk to close the civil case.

For the reasons discussed above, it is, this day of December, 2014, ORDERED that:

1. The Court's April 10, 2014 Order (Criminal No. WDQ-11-0050, ECF No. 4 87), BE, and HEREBY IS, VACATED;

2. Mr. Holovko's petition in Criminal No. WDQ-11-0050 for the return of his property, ECF No. 4 85, SHALL BE REINSTATED;

3. The Court's December 3, 2014 Order (Civil No. WDQ-14-1178, ECF No. 2), BE, and HEREBY IS, VACATED;

4. The Clerk SHALL CLOSE Civil No. WDQ-14-1178; and

5. The Clerk of the Court shall send copies of this Order to Mr. Ing. Dmytro Holovko, Mr. Dmytro Holovko, the Defendant in Criminal No. WDQ-11-0050, and counsel of record.


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