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United States v. Duarte

United States District Court, D. Maryland, Southern Division

April 3, 2017

UNITED STATES OF AMERICA
v.
NERY GUSTAVO RAMOS DUARTE

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         Defendant 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.

         Background

         The 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 Opp'n 10.

         The 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.[1] 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 property.” Id.

         On 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.

         He 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.”).

         Relying 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.

         Discussion

         “[T]he 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 granted if--
(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 ...

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