United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
Nery Gustavo Ramos Duarte was convicted of conspiracy to
distribute controlled substances, in violation of 21 U.S.C.
§ 846; conspiracy to import controlled substances, in
violation of 21 U.S.C. § 963; conspiracy to launder
monetary instruments, in violation of 18 U.S.C. §
1956(h); and conspiracy to smuggle bulk cash outside of the
United States, in violation of 18 U.S.C. § 371. ECF Nos.
1, 105. He had been arrested on these charges on October 25,
2010 at the United States-Mexico Border Crossing in San
Ysidro, California, at which time $5, 414.00 in U.S. currency
was seized from him. Def.'s Mot. 1-2, ECF No. 170-8;
Gov't Opp'n 10, ECF No. 173. Now pending is
Defendant's Motion to Set Aside Forfeiture with regard to
that U.S. currency. ECF Nos. 170, 170-8. The parties fully
briefed the Motion. ECF Nos. 173 & 177. A hearing is not
necessary. See Loc. R. 105.6; 207. Because Ramos
Duarte received notice of forfeiture and had time to file a
timely claim, I will deny his Motion.
United States Customs and Border Protection
(“USCBP”) initiated administrative forfeiture
proceedings against $5, 414.00 that had been seized from
Ramos Duarte when he was arrested in San Ysidro, California
on October 25, 2010. Def.'s Mot. 1-2; Gov't Opp'n
10. When USCBP “issued notice of the seizure and
administrative forfeiture proceedings
[‘Notice']” on November 9, 2010, Ramos Duarte
was incarcerated at the Metropolitan Correction Center in San
Diego, California. Gov't Opp'n 10; Def.'s Mot. 2;
see Notice, ECF No. 170-1. He acknowledges that he
received the Notice. Def.'s Mot. 2, 6; Gov't
Notice informed him that he could “file a petition with
[USCBP] for the remission of forfeiture within 30 days from
the date of [the Notice], ” that is, by December 9,
2010, or “file a claim to the property with [USCBP]
pursuant to 18 U.S.C. § 983(a)(2) by January 3,
2011.” Notice 1-2. He also could “choose to do
nothing, ” in which case USCBP could “initiate
forfeiture action, ” but it directed him to
“complete the Election of Proceedings Form and return
it to CBP” even if he decided to “abandon the
November 18, 2010, Ramos Duarte “was put ‘in
transit' and transported to a final destination of
Charles County, Maryland to face the criminal charges against
him.” Def.'s Mot. 2; see Gov't
Opp'n 10; Def. Aff. ¶ 4, ECF No. 170-2. Ramos Duarte
arrived at the Charles County Jail on November 30, 2010. Def.
Aff. ¶ 4; Gov't Opp'n 10; Def. Reply 3.
argues that he could not file a petition or claim before the
expiration of the thirty-day period because he was in transit
and did not have access to his legal documents. Def.'s
Mot. 4. According to Ramos Duarte, “From mid-November
to mid-December, [he] was in Transit and without his legal
paperwork, including the seizure notice from the CBP, which
prevented him from being able to file his claim during the
applicable time period.” Id. He asserts that
“[h]e was subjected to a 72-hour lockdown upon arrival
for medical evaluation.” Def.'s Reply 3. Ramos
Duarte insists that the deadline for him to respond to the
Notice was December 9, 2010. Def.'s Mot 4. He
also contends that “[u]pon arrival at the Charles
County jail, he immediately asked his attorney about the
return of his property seized in San Ysidro.”
Id. at 5. Ramos Duarte asserts that, “[f]or
whatever reason, [his] attorney informed him (erroneously)
that that particular issue could not be resolved until after
his criminal matter was resolved.” Def.'s Mot. 2;
see Claims (“The Reason I did not file my
asset claim form before this date was that my lawyer advised
me to wait till [sic] after I was sentenced so my actions
were at the advice of legal counsel.”).
on that advice, Ramos Duarte did not file a claim until after
he was sentenced on May 31, 2013. Def.'s Mot 2. He
asserts that he filed a claim “[i]mmediately after
Sentencing, ” id., but his first claim is
dated September 3, 2013, see Claims, ECF No. 170-3.
Meanwhile, the USCBP had administratively forfeited the $5,
414 seized from Ramos Duarte because it had not received a
timely claim. Def.'s Mot. 3; Gov't Opp'n 11; Feb.
10, 2014 Resp. to Claim, ECF No. 170-4.
exclusive remedy for seeking to set aside a declaration of
forfeiture under a civil forfeiture statute” is to file
a motion pursuant to 18 U.S.C. § 983(e). 18 U.S.C.
§ 983(e)(5). Section 983(e)(1) provides:
(e) Motion to set aside forfeiture.--
(1) Any person entitled to written notice in any nonjudicial
civil forfeiture proceeding under a civil forfeiture statute
who does not receive such notice may file a motion to set
aside a declaration of forfeiture with respect to that
person's interest in the property, which motion shall be
(A) the Government knew, or reasonably should have known, of
the moving party's interest and failed to take reasonable
steps to provide such party with notice; and
(B) the moving party did not know or have reason to know of
the seizure within sufficient time ...