United States v. Carrizoza
| Decision Date | 18 April 2016 |
| Docket Number | CR 14-02095-TUC-RCC(EJM) |
| Parties | United States of America, Plaintiff, v. Miguel Angel Carrizoza, Defendant. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is the defendant's Motion for Return of Property filed pursuant to Fed.R.Civ.P. 41(g).1 (Doc. 29.) Plaintiff filed a response to the motion and both parties filed supplemental pleadings. (Docs. 30, 37, and 38.) The issues raised by the defendant are: (1) whether U.S. Customs and Border Protection's ("CBP") Notice of Seizure and in forma pauperis ("IFP") application to Mr. Carrizoza constituted sufficient notice in accordance with due process of law (Doc. 29-1 at 3, 7); (2) whether the Notice of Seizure was unexpectedly "bifurcated" into a two-step process (Doc. 37 at 2);(3) whether CBP's IFP application is unapproved by CBP's procedures (Doc. 37 at 5); and (4) whether CBP was required to accept a federal judge's finding that Mr. Carrizoza was indigent on a related criminal matter as satisfactory proof of Mr. Carrizoza's inability to pay the bond in the forfeiture proceeding. (Doc. 37 at 5.)
This Court concludes that due process was violated both by CBP's inadequate notice to Mr. Carrizoza of the IFP application process for the administrative forfeiture proceeding, and by CBP's failure to notify the defendant of the denial of his request for a waiver of bond and failure to provide him with an opportunity to post a bond.2 Accordingly, the undersigned recommends that the District Court void the forfeiture and order CBP to either return the seized property to Mr. Carrizoza or begin judicial forfeiture proceedings.
On November 19, 2014, in Nogales, in the District of Arizona, the defendant, Miguel Angel Carrizoza, presented himself for inspection into the United States from Mexico at the Mariposa Port of Entry. (Doc. 38 at 1.) Mr. Carrizoza was the driver, registered owner and sole occupant of the 1994 Dodge Ram 2500 truck. Id. Mr. Carrizoza was arrested for importing a controlled substance into the United States. (Doc. 29-1 at 1.) At the time of the defendant's arrest, CBP seized Mr. Carrizoza's truck because it was subject to forfeiture under 19 U.S.C. § 1595a(a) based on a violation of 21 U.S.C. §§ 952, 841. (Doc. 29-1 at 1.)
On November 20, 2014, Mr. Carrizoza had his Initial Appearance on the drug charge. At that hearing, the Magistrate Judge made a finding that the defendant was indigent and appointed Mr. Jonathan Young as counsel. (Doc. 2.)
On December 30, 2014, CBP sent Mr. Carrizoza a Notice of Seizure and Information to Claimants NON-CAFRA Form ("Notice of Seizure") via certified mail. (Doc. 29-1 at 1.) There is no dispute that Mr. Carrizoza received the Notice of Seizure,but there is no evidence of when he received this document as neither party submitted the return-receipt for the certified mail.
The Notice of Seizure sets forth four options for a potential claimant, and those options are also reflected in the "Election of Proceedings" Form that was included with the Notice of Seizure. First, a claimant may file a petition under 19 U.S.C. § 1618 within 30 days of the date of the Notice of Seizure seeking remission of the forfeiture. The Notice of Seizure explains that the petition need not be in any specific form, but must describe the property involved, the date and place of seizure, proof of the claimant's interest in the property, and all facts and circumstances warranting relief from forfeiture. The Notice of Seizure advises that if a claimant chooses this option, Box #1 on the Election of Proceedings form should be checked. The Notice of Seizure further advises that by completing Box #1, the claimant is requesting an administrative processing of the case by CBP, requesting that CBP refrain from beginning forfeiture proceedings while the petition is pending, or halt administrative forfeiture proceedings if they have already commenced.
Second, at any time prior to forfeiture, a claimant may make an "Offer in Compromise" under 19 U.S.C. § 1617 and 19 C.F.R. §§ 161.5 and 171.31. If the claimant offers money in settlement of the case, the offered payment must be sent to CBP at the time of the offer (and would be returned if CBP rejected the offer). The Notice of Seizure advises that if the claimant chooses this option, then Box #2 on the Election of Proceedings form should be checked.
Third, the claimant may abandon or claim no interest in the property. If this option is chosen, Box #3 on the Election of Proceedings form should be checked. The Notice of Seizure advises that under option three, the government may proceed with forfeiture proceedings without further involving the potential claimant.
Fourth, a claimant may request to have the forfeiture matter referred to the U.S. Attorney's Office for institution of judicial forfeiture proceedings. The Notice of Seizure advises that if a claimant chooses this option, then Box #4 on the Election of Proceedingsform should be checked. The Notice of Seizure advises that if option four is chosen, the claimant must submit to CBP a claim and cost bond in the penal sum of $5,000 or 10% of the value of the claimed property, whichever is less, but in no case shall the amount of the bond be less than $250.00. Once the claim and cost bond are filed, the case will be promptly referred to the U.S. Attorney for institution of judicial proceedings in accordance with 19 U.S.C. § 1608 and 19 C.F.R. § 162.47. The Notice of Seizure provides that the failure to submit a bond with the claim will render the request for judicial proceedings incomplete, and therefore, defective— meaning that the case will not be referred to the U.S. Attorney's Office.
However, the Notice of Seizure advises that if a claimant cannot afford to post the bond, the claimant should contact CBP so that the agency can make a determination of the claimant's financial ability to pay the bond. If CBP determines that the claimant is unable to pay the bond, the cost of the bond may be waived in its entirety. In that event, the case will promptly be referred to the U.S. Attorney's Office and the claimant may file a petition for relief with the Department of Justice pursuant to 28 C.F.R. Pt. 9.
Option four does not set forth any time deadlines for submitting a claim to have the forfeiture referred for judicial proceedings. There are also no deadlines specified for either submitting the cost bond or requesting a waiver of the bond due to indigency. Finally, neither the Notice of Seizure nor the Election of Proceedings form mentions an IFP application or how indigency must be demonstrated by a claimant.
After going through these four options, the Notice of Seizure explains that if a claimant chooses to do nothing, CBP may seek to forfeit the property and, if so, will publish notice of seizure and intent to forfeit for 30 consecutive days. When those 30 days expire, the government acquires full title to the seized property. Finally, the Notice of Seizure explains that the first notice will be posted on or about 30 days from the date of the Notice of Seizure.
On January 24, 2015, Mr. Young responded to CBP's Notice of Seizure, via certified mail, stating that he represents Mr. Carrizoza on the criminal matter and that Mr.Carrizoza was found indigent for purposes of the criminal case; he also requested a waiver of bond in the forfeiture proceedings because Mr. Carrizoza has no financial assets (or a checking or savings account) and owns no real estate or personal property other than the truck. (Doc. 29-1 at 6-7.) Along with his letter, Mr. Young submitted Mr. Carrizoza's Election of Proceedings form with Box #4 checked, requesting that CBP send his case to the United States Attorney's Office ("USAO") in order to institute Court Action. (Doc. 29-1 at 8.) CBP received this letter and Election of Proceedings form on January 27, 2015.
On February 6, 2015, in response to Mr. Young's letter and the Election of Proceedings form, CBP sent Mr. Young an IFP application in addition to a letter indicating that CBP was requesting additional information to prove Mr. Carrizoza's inability to post bond. (Doc. 29-1 at 10.) This correspondence was not sent via certified mail like the initial Notice of Seizure. (Doc. 29-1 at 9.) The letter advised Mr. Young that if a completed IFP application was not received within 15 days of the date of the letter, administrative forfeiture proceedings would be initiated.
Mr. Young did not receive CBP's February 6, 2015 letter and the IFP application until June 16, 2015. (Doc. 29-1 at 12.) In a letter to CBP dated June 17, 2015, Mr. Young explained that, through no fault of his or Mr. Carrizoza's, the U.S. Post Office temporarily misplaced all of his mail, including CBP's February 6, 2015 letter. (Doc. 29 at 2-3.) A completed IFP application was included with Mr. Young's letter. (Doc. 29-1 at 11-14.) On June 25, 2015, CBP responded to Mr. Carrizoza with a letter, sent via certified mail, stating that CBP had received Mr. Carrizoza's completed IFP application and letter, but the administrative process had concluded and the truck was forfeited to the government on April 16, 2015. (Doc. 29-1 at 15-16.)
On July 28, 2015, Mr. Carrizoza filed his Motion for Return of Property. (Doc. 29.) Mr. Carrizoza argues that CBP's February 6, 2015 IFP application unexpectedly added a second step to the process to refer the forfeiture matter to a judicial forum (Doc. 37 at 1-2), and that CBP failed to provide Mr. Carrizoza reasonable notice of seizurebecause CBP did not send the IFP application via certified mail. (Doc. 37 at 4-5.) Additionally, Mr. Carrizoza argues that CBP's IFP application is unapproved by CBP, and that CBP was required to accept a federal judge's finding that Mr. Carrizoza was indigent on the related criminal matter as evidence of his inability to post bond in the forfeiture proceeding. (Doc. 37 at 5.)
The government argues that CBP...
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