United States v. Blvd
| Decision Date | 07 September 2012 |
| Docket Number | No. 10-cv-11236-MLW,10-cv-11236-MLW |
| Parties | UNITED STATES, Plaintiff, v. 29 ROBINSON BLVD, MEDWAY, MAINE, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
WOLF, D.J.
On July 22, 2010, the United States filed an in rem civil forfeiture action against: 29 Robinson Boulevard, Medway, Maine; One Green 1995 Mercedes Benz SL600R bearing vehicle identification number WDBFA76E4SF108140; One Green 1999 Mercedes Benz CLK 320A bearing vehicle identification number WDBLK65GXT017397; 368 Elm Street, South Dartmouth, Massachusetts; and 4 Seaward Lane, South Dartmouth, Massachusetts (the "Defendant Properties"). The United States asserts that the Defendant Properties are subject to forfeiture pursuant to 18 U.S.C. §981(a)(1)(c) and 28 U.S.C. §2461(c) because they constitute or are derived from proceeds traceable to violations of 18 U.S.C. §1343, and/or because they were involved in money laundering transactions in violation of 18 U.S.C. §§1956 and/or 1957. On July 29, 2010, Judge Nancy Gertner found probable cause for forfeiture, and on August 3, 2010, issued a Warrant and Monition against the Defendant Properties and a Restraining Order against the Maine, Elm Street, and Seaward Lane Properties. The Warrant and Monition instructed the United Statesto give notice of the forfeiture action to all interested parties, including Richard Souza, who was subsequently arrested for conduct relating to the Defendant Properties, either by mail or by hand. The Warrant and Monition provided that all claims to the Defendant Properties must be filed within "60 days after the first day of publication on the official government forfeiture website or within thirty-five days after receipt of actual notice, whichever is earlier."
On August 12, 2010, Souza was arrested pursuant to a warrant based on a criminal complaint issued against him for violations of 31 U.S.C. §5324(a)(3), structuring cash transactions to evade reporting requirements. Souza was released on conditions on August 26, 2010, but was again arrested on September 21, 2010, for violating his conditions of release. On September 30, 2010, Souza was indicted for violating 31 U.S.C. §5324(a)(3). Souza was again released on conditions on October 27, 2010, but was subsequently arrested once again on November 17, 2010, for violating his conditions of release. Souza was convicted after a three-day jury trial in February, 2012. On August 1, 2012, Souza was sentenced to 51 months in custody by Judge Richard Stearns. He is currently appealing his conviction and sentence.
Souza, pro se, has now filed several motions with this court regarding forfeiture of the Defendant Properties. On August 31, 2011, Souza filed an ex parte motion to dismiss with prejudice (the"Motion to Dismiss"), requesting that the court dismiss both this case and the criminal case because of "fraud on the court," slander, libel malpractice, professional misconduct, prosecutorial misconduct, judicial misconduct, perjury, collusion, fraud and incompetence. Souza asserts that he did not receive notice of forfeiture of the Defendant Properties until August 19, 2011. He also alleges several deficiencies in his criminal proceedings, including wrongful detention, collusion between the prosecutor and his attorney to waive his speedy trial rights, and violations of his civil rights by then Magistrate Judge Timothy Hillman, the prosecutor, and multiple attorneys who were appointed to represent him. Souza subsequently filed, on October 13, 2011, a "Claim and Request for a Jury of 12 Trial, Should Claimant's Motion to Dismiss With Prejudice for Defendant(s) be Denied!" (the "Claim"), alleging violations of his constitutional civil rights. The government filed a timely opposition and motion to strike the Claim. On November 18, 2011, Souza filed a "Claimant's Support of Claim and Request Granting Dismissal for Defendant's and Order to Return Property and Release Liens," also opposed by the government. Souza has also requested that the court appoint him counsel. The government has filed a Motion for Judgment of Forfeiture as to 29 Robinson Boulevard and One 1995 Green Mercedes Benz.
The court acknowledges that, because Souza filed the Motion to Dismiss ex parte, the government has not been given an opportunityto respond to the arguments made in the Motion to Dismiss. However, because Souza alleges, in the Motion to Dismiss, that he did not receive notice of the forfeiture until August 19, 2011, and the notice issue is addressed in the government's opposition to the Claim, the court has the information and arguments necessary to decide this issue.
Forfeiture actions in rem are governed by Rule G of the Supplemental Rules (to the Federal Rules of Civil Procedure) For Admirality or Maritime Claims and Asset Forfeiture Actions ("the Supplemental Rules"). Supplemental Rule G(4)(b)(i) requires that the government provide direct notice of in rem forfeiture to all known potential claimants before the end of the time for filing a claim. Rule G(4)(b)(iii)(A) states that the notice must be "sent by means reasonably calculated to reach the potential claimant." The provisions of Rule G(4)(b)(iii) have been accurately described as:
simply a restatement of the due process requirements that courts have always applied to determine whether notice is reasonable. Where proper notice is not otherwise defined by statute or rule, courts evaluate the sufficiency of notice under a due process standard. Due process is satisfied where notice is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."
United States v. Muckle, 709 F. Supp. 2d 1371, 1373 (M.D. Ga. 2010) (quoting Dusenbery v. United States, 534 U.S. 161, 163 (2002)). "Reasonable notice, however, requires only that the government attempt to provide actual notice; it does not require that thegovernment demonstrate that it was successful in providing actual notice." Mesa Valderrama v. United States, 417 F.3d 1189, 1197 (11th Cir. 2005) (citing Dusenbery, 534 U.S. at 170). Accordingly, whether the potential claimant actually received notice is not decisive. Rather, the court must determine whether the notice the government attempted to provide to Souza was reasonably calculated to reach him.
In this case, the government served Souza with copies of the Complaint, Warrant and Monition and Restraining Order at Souza's home at 4 Seaward Lane on August 12, 2010, the day he was arrested. The Proof of Service filed with the court indicates that the process server, a Treasury Agency Officer, left the Verified Complaint, Warrant and Monition, and Restraining Order with Pamela Goes at 4 Seaward Lane on August 12, 2010. This does not comply with the literal language of the Warrant and Monition, which instructed the government to serve Souza either by mail or by hand at 4 Seaward Lane. However, the court finds that leaving the documents with Goes, a resident of 4 Seaward Lane, constitutes notice reasonably calculated to reach Souza, because it satisfies the requirements for valid service under Federal Rule of Civil Procedure 4(e)(2)(A). That Rule states that an individual may be served in a judicial district of the United States by "leaving a copy . . . . at the individual's dwelling or usual place of abodewith someone of suitable age and discretion who resides there."1 Further, pursuant to the Warrant and Monition, the government also provided public notice of the forfeiture on an official government internet site from September 9, 2010, to October 8, 2010, in compliance with Supplemental Rule G(4)(a)(iv)(C). Moreover, again in compliance with the Warrant and Monition, on November 2 and 4, 2010, the government posted copies of the Complaint, Warrant and Monition, and Restraining Order on the Maine Property, Elm Street Property, and Seaward Lane Property.
Finally, on December 13, 2010, the government sent, by certified mail, copies of the Complaint, Warrant and Monition, and Restraining Order to attorneys Catherine Byrne, who had previously represented Souza in his criminal case, and Eduardo Mansferrer, who represented Souza in his criminal case at the time. The court finds that the notice provided to Souza through his criminal attorneys was not timely and, therefore, has not relied on it in concluding that Souza received proper notice. The government reports that it provided public notice of the forfeiture on an official government internet site beginning on September 9, 2010. Accordingly, the 60-day period for filing a claim ended on November 8, 2010. However,the government did not serve Souza's attorneys with a copy of the Warrant and Monition until December 13, 2010, at which point the 60-day period from the date of publication for filing a claim had already expired. Accordingly, this method of notice was not reasonably calculated to reach the potential claimant in time for him to assert a valid claim.
However, the court finds that the other actions of the government are sufficient to constitute notice by "means reasonably calculated to reach the potential claimant." Supp. Rule G(4)(b)(iii)(A). The government served Souza with notice at his last known residence, 4 Seaward Lane. Although service was effected on the day Souza was arrested, he was released from detention on August 26, 2010. During the period of his release, the government published notice of the forfeiture on an official government internet site, and it remained there from September 9, 2010, through October 8, 2010, although Souza was detained again for violating his release conditions on September 21, 2010. Souza was again released on conditions from October 27, 2010, to November 17, 2010, and during his release, the government posted copies of the Complaint, Warrant and Monition and Restraining Order on the real properties themselves on November 2, and 4, 2010.2
The court finds that in several...
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