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United States of America v. $10

August 31, 2012

UNITED STATES OF AMERICA
v.
$10,648.00 IN UNITED STATES CURRENCY SEIZED FROM KARLA SCHULZ, DEFENDANT IN REM



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

The United States of America, seeking civil forfeiture of $10,648.00 seized from the home of Karla Schulz, filed its "Amended Verified Complaint for Forfeiture In Rem for Property Within the United States' Possession, Custody or Control Pursuant to Supplemental Rule G" (doc. no. 4) (hereinafter "the Complaint") pursuant to 21 U.S.C. § 881. The government has now filed a "Motion to Strike Karla Schulz's Claim for Failure to File an Answer" (doc. no. 12) (hereinafter "Motion to Strike"), seeking to strike a document entitled "Motion for Claim and Answer to an Amended Complaint of Forfeiture In Rem" (doc. no. 10) (hereinafter "Motion for Claim and Answer"). For the reasons explained herein, the Motion to Strike is denied and Schulz is directed to file an amended answer, in accordance with Rule G(5)(b) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (hereinafter "Supp. R." or "Supplemental Rules") and Fed. R. Civ. P. 8(b) and (c).

Factual Background

In the Complaint, filed August 25, 2011, the United States alleges that on October 31, 2010, while conducting a search of Schulz's home pursuant to a search warrant, law enforcement officers found and seized cocaine, other drug-related items and paraphernalia, and $10,648.00 in cash. Schulz was subsequently convicted of possession of cocaine and possession with the intent to distribute cocaine. Schulz is presently incarcerated at the New Hampshire State Prison for Women.

Procedural Background

The Complaint, notice of forfeiture complaint, and other documents relevant to this case were served on Schulz, as a potential claimant, on September 2, 2011. See Affidavit of Service (doc. no. 6). One of the documents served on Schulz, the "Amended Summons and Warrant of Arrest in Rem" (doc. no. 4-2), advised Schulz that to claim an interest or right in the defendant in rem (the $10,648.00 seized from her home), she must file a verified claim within thirty-five days after the date she was sent the notice of complaint, or within such additional time as the court would allow, and that her answer to the Complaint had to be served within twenty-one days after the filing of her verified claim.

On October 5, 2011, Schulz, appearing pro se, filed a "Motion for Claim Hearing" (doc. no. 9), which set forth her claim to the money, stated that it was taken from her residence by the police department, and asserted that the money "was not from the distribution of cocaine." Schulz attached documentation to that filing which demonstrated that in April 2010, she received a check in the amount of $13,309.48, and in August 2010, she received a check in the amount of $1881.59, and that both checks were proceeds due to Schulz after the foreclosure sale of her home. The Motion for Claim Hearing was not verified.

Twelve days later, on October 17, 2011, Schulz filed the verified Motion for Claim and Answer. Referencing the documents filed with the Motion for Claim Hearing, Schulz claimed a property interest in the money, and sought to have it returned to her, reiterating that it was proceeds from a foreclosure sale of her home.

On May 3, 2012, the United States filed the instant Motion to Strike. In its motion, the government makes no reference at all to Schulz's Motion for a Claim Hearing, identifies the Motion for Claim and Answer as Schulz's "claim," and states that Schulz never filed an answer to the Complaint. The government argues that, pursuant to Supp. R. G(8)(c)(i), Schulz's claim should be stricken, as Schulz failed to file an answer, in violation of Supp. R. G(6). See Supp. R. G(8)(c)(i) ("At any time before trial, the government may move to strike a claim or answer (A) for failing to comply with Rule G(5) or (6), or (B) because the claimant lacks standing."). Schulz has not objected or otherwise responded to the Motion to Strike.

Discussion

I. Procedure in a Civil Forfeiture Action

Supplemental Rule G sets forth the procedure to be followed where the government seeks civil forfeiture of real or other property pursuant to its statutory authority, see Supp. R. G(1), including forfeiture of money that is used, intended to be used, or obtained, in exchange for controlled substances, pursuant to 21 U.S.C. § 881(a)(6).*fn1 Where Supp. R. G fails to address an issue that arises in a forfeiture action, the court may apply Supp. R. C and E, and the Federal Rules of Civil Procedure. See Supp. R. G(1); see also United States v. One 1987 BMW 325, 985 F.2d 655, 659 (1st Cir. 1993) (First Circuit has "consistently looked to the Civil Rules to fill gaps in the Admiralty Rules").

Pursuant to Supplemental Rule G(5)(a), an individual served with a complaint and a notice of forfeiture, who intends to contest the forfeiture, must file a claim that: 1) identifies the property claimed; 2) identifies the claimant; 3) states the claimant's interest in the property; 4) is verified; 5) is served on the government; and 6) is timely filed. See Supp. R. G(5)(a). To be timely, the verified claim must be filed within the time stated in the government's notice, which in this case was thirty-five days after the government's September 6, 2011, service of the notice on Schulz. See Supp. R. G(5)(a)(ii)(A). The Supplemental Rules further require the putative claimant to file an answer to the complaint, or other responsive pleading, within twenty-one days after filing his or her claim. See Supp. R. ...


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