VANHORN v. Florida

• Decision Date: 09 March 2009
• Docket Number: Case No. 8:09-cv-258-T-23EAJ.
• Parties: Kent Allen VANHORN, Plaintiff, v. State of FLORIDA, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

677 F.Supp.2d 1288

Kent Allen VANHORN, Plaintiff, v. State of FLORIDA, et al., Defendants.

Case No. 8:09-cv-258-T-23EAJ.

United States District Court, M.D. Florida, Tampa Division.

March 9, 2009.

Kent Allen Vanhorn, Thonotosassa, FL, pro se.

Adelaide G. Few, US Attorney's Office-FLM, Tampa, FL, for Defendants.

ORDER

STEVEN D. MERRYDAY, District Judge.

On August 21, 2008, Kent Allen VanHorn ("VanHorn") filed a "Motion to Return Property and Money per Federal Rules of Criminal Procedure per (Rule 41(g))" (the "motion to return property" Doc. 1) seeking (a) an evidentiary hearing to determine whether money and documents allegedly seized by the Drug Enforcement Administration (the "DEA") in the course of a search of VanHorn's residence should be returned to VanHorn, (b) an order directing the DEA to show cause why the seized property should not be returned and to "produce all records, and receipts, pertaining to this case," and (c) an order directing service of the motion on the DEA, the Hillsborough County Sheriff's Office ("HCSO"), and the State of Florida. Also on August 21, 2008, VanHorn filed a "Motion to Suppress per Rule '41'/Rule 12" (the "motion to suppress" Doc. 2). Although styled a motion to suppress and reciting Rule 41(h), Federal Rules of Criminal Procedure,¹ the motion to suppress requests an order directing HCSO to produce all records relating to Hillsborough County Circuit Court case No. 04-022087 and directing the DEA to produce all records relating to DEA case no. "G6-05-0028 in relation to the search that was illegally done on November 19, 2004."² On September 29, 2008, HCSO filed "Objections" (Doc. 3) to the motions requesting denial of both motions and dismissal of HCSO as a party. On October 8, 2008, the United States moved (Doc. 4) to strike the motion to return property and the motion to suppress. On November 5, 2008, VanHorn filed a "Motion to Claim per Seizure of U.S. Currency per Claim Through 18 U.S.C. § 983(a)(2)(D)" (Doc. 7), and on November 12, 2008, a "Notice of Supplemental Authority" (Doc. 8). A February 12, 2009, order (Doc. 12) construes the "Motion to Claim per Seizure of U.S. Currency per Claim Through 18 U.S.C. § 983(a)(2)(D)" as a motion to set aside a declaration of forfeiture pursuant to 18 U.S.C. § 983(e) (the "motion to set aside") and the "Notice of Supplemental Authority" as a legal memorandum in support of the motion to set aside. Additionally, the order directs the United States to respond to the motion to set aside and to address (a) whether the DEA notice of seizure and commencement of administrative forfeiture in DEA case no. G6-05-0020 satisfies 19 U.S.C. § 1607(a), 18 U.S.C. § 983, and the requirements of constitutional due process as construed in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), and (b) the weight if any to accord the unauthenticated documents attached to the United States' motion to strike and the unverified representations in the motion to strike. On February 13, 2009, without actual notice of the specific directions in the February 12, 2009, order, the United States responded (Doc. 12) to the motion to set aside. The response includes a September 29, 2008, declaration (Doc. 12-9) of John Hieronymus, Forfeiture Counsel for the DEA, authenticating documents from the DEA file. On February 20, 2009, the United States filed a supplement (Doc. 13) to the response.

BACKGROUND

Documents from the Hillsborough County Court records attached to HCSO's objections and the United States' supplemental response disclose that on November 10, 2004, pursuant to a state-court search warrant in case no. 04-108888, HCSO officers (including Detective Todd Schrock PID 4701, a Corporal Glasscock PID 0598, and a Detective Baxter PID 3368) and DEA agents including Special Agent Mark Embry executed a search of VanHorn's residence, 10701 Canoe Drive, Thonotosassa, Florida 33592. Detective Schrock's November 10, 2004, HCSO property receipt (Doc. 3-2 at 3) states that HCSO officers seized (i) 138.9 pounds of marijuana and (ii) a "suitcase with plastic bags." Detective Schrock's November 19, 2004, supplemental report (Doc. 3-2 at 6-7) states that "U.S. currency was located by DEA and was seized by DEA" during the November 10, 2004, search. HCSO states (Doc. 3 at 3) that the property receipt lists all the items seized by HCSO.³ However, a November 10, 2004, "Inventory and Receipt of Property Seized Under the Search Warrant" (Doc. 3-2 at 14) signed by Detective Schrock and attested by Officer Bill Sims (PID 4870) appears to record unspecified "Paperwork" discovered on the living room floor by Officer Glasscock—although the entry may record a return or receipt that law enforcement left at VanHorn's residence.

The Hillsborough County court records further disclose that VanHorn was arrested in case no. 04-CF-02287 on November 23, 2004; posted bond on November 24, 2004;⁴ pleaded guilty to "Trafficking in Cannabis (25 to 2000 pounds)" on May 5, 2005; was sentenced to thirty-six months in Florida State prison on October 19, 2005; and, on January 3, 2006, filed a "Motion to Return Property and/or Monies" in state court. The motion (Doc. 3-4) contends that upon arresting VanHorn HCSO seized $20,000 legally earned currency and "Misc. house deeds/papers, etc.," and the motion requests an order directing their return. Following a stay (Doc. 3-5) pending resolution of VanHorn's appeal from the judgment and sentence in the underlying criminal case, on August 22, 2006, Circuit Judge Manuel Lopez ordered (Doc. 3-6) the Office of the State Attorney to respond to the motion. The State's response (Doc. 3-7; see also Doc. 4-7) reports HCSO's contention that "no member of HCSO ever impounded, seized or confiscated any monetary sum that belonged to the defendant" and HCSO's confirmation that "a member of the DEA did seize $20,000 from the defendant's home ...." VanHorn's reply (Doc. 3-8 excluding exhibits) notes the State's failure to address his contention as to "the miscellaneous documents," complains of HCSO's failure to include the money seized by the DEA (and the "the miscellaneous documents") on the "property receipt," and demands the return of the money and documents. On September 17, 2007,⁵ an evidentiary hearing was held, at which Detective Schrock testified that (a) Detective Schrock and the DEA jointly executed the search and (b) although Detective Schrock seized the marijuana discovered during the search, the DEA (not HCSO) seized some currency. Accordingly, Judge Lopez orally denied VanHorn's motion "because the Sheriff's office does not have that money" (Doc. 3-9) and advised VanHorn to seek relief in federal court. A January 2, 2008, written order (Doc. 3-10; cf. Doc. 3-3 at 3; Doc. 12-9 at 19) finds that the money "seized from Defendant's home at the time of his arrest is not in the possession of the HCSO or any other State of Florida law enforcement agency," concludes that the Circuit Court lacks jurisdiction to order the money's return, and denies the motion.

The United States' motion, responses, and the Hieronymus declaration disclose (a) that while executing a search warrant at VanHorn's residence on November 10, 2004, the DEA seized as drug proceeds $19,640 in U.S. currency (the "currency"); (b) that the DEA assigned the currency asset I.D. number 05-DEA-444935 and initiated administrative forfeiture proceedings in DEA case no. G6-05-0020; (c) that, on December 30, 2004, the DEA sent written notice (Doc. 12-9 at 5) of the seizure by certified mail, return receipt requested, to VanHorn at 10701 Canoe Drive, Thonotosassa, Florida 33592; (d) that, as evidenced by an attached return receipt (Doc. 12-9 at 6), the United States Postal Service attempted to deliver the notice three times between January 5 and January 19, 2005, and on January 19, 2005, the notice was returned to the DEA stamped "UNCLAIMED."⁶ Hieronymus declares (without elaboration) that "a subsequent verification of the address was conducted by this office with the DEA office in Miami, FL. The address was confirmed as the current and valid address for Kent Allen VanHorn." Finally, notice of the seizure of the property was published (Doc. 12-9 at 7-9) in The Wall Street Journal once each week for three successive weeks (January 10, 17, and 24, 2005).

The mailed and published notices (1) state that the currency was seized by the DEA for forfeiture pursuant to 21 U.S.C. § 881 because the property was used or acquired as a result of a violation of the Controlled Substances Act, 21 U.S.C. § 801 et seq., and that the DEA had commenced administrative forfeiture proceedings pursuant to 18 U.S.C. § 983 and 19 U.S.C. §§ 1602-1619, (2) explain the procedure for filing a claim with the DEA forfeiture counsel to contest the forfeiture action in United States District Court; (3) state that the deadline to file a claim is February 3, 2005 (if notice is received by mail) or February 23, 2005 (if mailed notice is not received); and (4) explain the option of filing a petition for remission or mitigation. After the deadline for filing a claim, on March 31, 2005, the DEA forfeited (Doc. 12-9) the property to the United States.

DISCUSSION

Federal law provides for the forfeiture of money "traceable" to drug trafficking.⁷ The Civil Asset Forfeiture Reform Act of 2000 ("CAFRA") governs civil forfeiture actions (both judicial and administrative) initiated after August 23, 2000. See 18 U.S.C. § 983; Pub.L. No. 106-185, 114 Stat. 202, codified in part at 18 U.S.C. § 983; Mesa Valderrama v. United States, 417 F.3d 1189, 1195 (11th Cir.2005). Property worth $500,000 or less is subject to administrative forfeiture without judicial involvement. See 19 U.S.C. § 1607.⁸ To commence an administrative forfeiture action, the government must comply with the notice requirements of 18 U.S.C. § 983 and 19 U.S.C. §§ 1607-1609. The government must send written notice of the seizure and information concerning...