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Washington v. U.S. Attorney

United States District Court, D. Maryland

November 3, 2016

TOMMIE WASHINGTON, #28049-037 Plaintiff
v.
U.S. ATTORNEY, Individual capacity JAMES WALLNER, Asst. U.S. Attorney, Individual capacity Defendants

          MEMORANDUM

          J. Frederick Motz United States District Judge

         Plaintiff Tommie Washington ("Washington") seeks the return of $8, 020.00 in cash which he claims was taken by government officials at the time of his arrest and prosecution. (ECF 1, 6). The government, on behalf of the named defendants, filed a response to Washington's complaint, which it properly construed as a motion to set aside an administrative declaration of forfeiture pursuant to 18 U.S.C. § 983(e)(5)[1] ("A motion under this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute."). (ECF 11). Washington has filed a reply. (ECF 15).

         The matter is fully briefed and ready for disposition, as a hearing is unnecessary to resolve the issues. See Local Rule 105.6 (D. Md. 2016). For reasons to follow, Washington's forfeiture complaint, as amended, will be construed as an administrative declaration of forfeiture and DISMISSED.

         STANDARD OF REVIEW

         Under 18 U.S.C. § 983(e), an "interested party" may move to set aside a declaration of forfeiture if (i) the government failed to take reasonable steps to provide him with notice, and (ii) the moving party did not otherwise know or have reason to know of the forfeiture in time to file a timely claim.

         In United States v. Minor, 228 F.3d 352 (4th Cir. 2000), the Fourth Circuit indicated the burden is on the government to show that it took "reasonable steps" to provide actual notice to a federal prisoner at his place of pretrial detention. Service of notice on relatives, defense counsel, or at a former residence does not suffice. Deciding whether the government's efforts were reasonable is a "context-specific inquiry." Minor, 228 F.3d at 358. While the court must assess whether the steps taken by the government were "reasonable, it bears noting that Washington, unlike Minor, was released pending trial. See United States v. Washington, Criminal No. JFM-12-0635 (D.Md.).ECF 11.

         BACKGROUND

         On August 27, 2012, Washington was arrested at his home at 9520 Perry Hall Boulevard, Apartment 102, Nottingham, Maryland. At the time of his arrest, Washington had on his person 50 capsules of heroin and a key to the apartment. Drug Enforcement Agency ("DEA") agents executing the search warrant at the apartment found an additional 350 capsules of heroin, powdered heroin, and packaging and equipment used to process heroin for distribution. See Plea Agreement, United States v. Washington, Criminal No. JFM-12-0635. That same day, DEA agents also executed a search and seizure warrant at the residence of Sheree Monique Sumler, 4264 Cowan Place, Belcamp, Maryland.[2]

         Following his arrest, Washington pleaded guilty to one count of possession with intent to distribute one hundred grams or more of heroin in violation of 21 U.S.C. §841. Forfeiture of the seized money was not part of the plea agreement. On April 26, 2013, Washington was sentenced to a term of 60 months of imprisonment.

         Washington claims he never received notice of the seizure of money from the Belcamp residence. He argues that the government should have served him with notice at the federal pretrial services office to which he reported prior to trial. (ECF 15 at p. 1). He further contends that his earlier attempts to determine the whereabouts of the money pursuant to a Rule 41(g) motion were ignored.[3] (Id. at p. 2). He also contends that providing notice of an impending forfeiture in the Wall Street Journal is not designed to provide actual notice to "a black male from Baltimore City." (Id.).

         NOTIFICATION OF FORFEITURE

         Verified and undisputed records submitted by government counsel show that on September 24, 2012, the DEA sent notice of the seizure and administrative forfeiture proceedings by certified mail to Sumler at 4264 Cowan Place, Belcamp, Maryland, and to Washington at three addresses: the Cowan Place residence, 1303 Queens Purchase Road, Essex, Maryland, and 9520 Perry Hall Boulevard, Apartment 102, Perry Hall, Maryland. (ECF 11-1, Affidavit of Vicki L. Rashid ("Rashid Decl.") at ¶¶ 4(a), 4(b), 4(d)). The notices addressed to Sumler and Washington at 4264 Cowan Place, Belcamp, Maryland, were signed for by Sumler and received on September 28, 2012. (Rashid Decl. at ¶¶ 4(b), 4(d), and Ex. 2 and 6 attached thereto). The notices sent to Washington at the Essex and Perry Hall addresses were returned to the DEA undelivered. (Rashid Decl. at ¶¶ 4(c), 4(e)).

         On October 8, 2012, notice of the seizure was published in the Wall Street Journal. Pursuant to 28 C.F.R. § 8.9(a)(1)(i), notice was published in the Wall Street Journal for two additional consecutive weeks, on October 15 and October 22, 2012. Each published notice indicated the deadline to file a claim and explained the option of filing a petition for remission or mitigation. (Rashid Decl. at ¶ 4(f) and Ex. 9).

         On December 11, 2012, the DEA sent three additional written notices to Washington: one via first class mail to 9520 Perry Hall Boulevard, Perry Hall, Maryland; and one via certified mail and one via first class mail to P.O. Box 1103, Edgewood, Maryland. (Rashid Decl. at ¶¶ 4(g)-(i)). The notice sent to the Perry Hall address was not returned to the DEA. (Rashid Decl. at ¶ 4(g)). Both notices sent to Washington at the Edgewood ...


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