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In re Seizure of 2007 GMC Sierra SLE Truck

United States District Court, D. South Carolina, Florence Division

July 25, 2014

IN THE MATTER OF THE SEIZURE OF: 2007 GMC SIERRA SLE TRUCK, VIN: 2GTEK13C1715

For In the Matter of the Seizure of 2007 GMC Sierra SLE VIN2GTEK13C1715, In Re: Bobby George Frederick, LEAD ATTORNEY, Bobby Frederick Law Office, Myrtle Beach, SC; Matthew Sherrod Swilley, LEAD ATTORNEY, Frederick Defense Firm, Myrtle Beach, SC.

For USA, Respondent: Stanley D Ragsdale, U.S. Attorneys Office, Columbia, SC.

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ORDER

R. Bryan Harwell, United States District Judge.

On May 13, 2013, Petitioner Jazmine Cruz (" Petitioner" ),[1] by and through her counsel, filed the above captioned action petitioning this Court to set aside and cease the administrative forfeiture proceedings concerning a 2007 GMC Sierra SLE, VIN # 2GTEK13C1715 (" the GMC truck" ),[2] which was seized by the Drug Enforcement Administration (" DEA" ). See Pet., ECF No. 1. The petition also requests that the matter be litigated in

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this Court, the United States District Court, pursuant to 18 U.S.C. § 983 et al. See id. The matter is before the Court on Respondent United States of America's (" Respondent" or " the Government" ) motion for dismissal and/or summary judgment. See Mot., ECF No. 5. For the reasons set forth below, the Court grants Respondent's motion.

Factual and Procedural Background

Unless otherwise noted, the parties generally agree on the factual and procedural history of this matter. This case involves the DEA's administrative forfeiture of a 2007 GMC Sierra SLE truck, VIN: 2GTEK13C1715311701. The detailed background is set forth in both the petition and the declaration of Vicki Rashid, Forfeiture Counsel with DEA Headquarters, which was attached as Exhibit 1 to Respondent's motion. See Aff. of Vicki Rashid, ECF No. 5-1.

Petitioner asserts that Diego De Jesus Cruz-Gutierrez (" Cruz-Gutierrez" ) was arrested on charges of conspiracy to possess with intent to distribute heroin on July 12, 2012. See ECF No. 1 at 1. Petitioner states that she is married and cohabitated with Cruz-Gutierrez at the time of his arrest. See id. Petitioner claims that on July 12, 2012, the DEA seized various assets shortly after apprehending Cruz-Gutierrez and taking him into custody. Petitioner asserts that the DEA seized automobiles, including the GMC truck, and several thousand dollars' worth of currency belonging to Cruz-Gutierrez. Id. Petitioner claims, however, that the GMC truck belonged to her and was titled to her. See id. Petitioner provided a copy of the Certificate of Title, which shows her as the titleholder. ECF No. 1-1 at 1. She asserts that she was not charged in any indictment and was not involved with the criminal activity. See ECF No. 1 at 2. She argues that the Government has not alleged that the GMC truck was used to facilitate the commission of a criminal offense, or that there was a substantial connection between the car and any criminal offense. See id. The Government did not address these factual assertions in its motion or exhibits, aside from a statement in forfeiture counsel's affidavit acknowledging that the GMC truck was in fact seized on July 12, 2012 from the residence of Jazmine Cruz. See ECF No. 5-1 at ¶ 4(a). The government does not object to Petitioner's factual assertions though.

On August 30, 2013, the DEA mailed a written notice of seizure to Petitioner. See ECF No. 1 at 2; ECF No. 5-1 at ¶ 4(b). The seizure notice specified that, in order to contest the forfeiture in the United States District Court, a verified claim must be filed with forfeiture counsel for the DEA by October 4, 2012. See ECF No. 1 at 2; Notice of Seizure, ECF No. 5-1 at 9. The Notice of Seizure specified that the filing date of the claim would be deemed the date on which the DEA physically received the claim or petition. See ECF No. 5-1 at 9. In particular the Notice stated as follows:

If you wish to contest the forfeiture of the asset, you must comply with the procedures set forth herein. Your failure to do so will result in the termination of your interest in the asset, and may preclude your contesting the forfeiture of the asset in any judicial proceeding . . . . All submissions must be filed with the [DEA] Forfeiture Counsel . . . . A PETITION, CLAIM, OR OTHER CORRESPONDENCE SHALL BE DEEMED FILED WITH THE FORFEITURE COUNSEL, ASSET FORFEITURE SECTION, WHEN RECEIVED BY THE DEA AT EITHER OF THE ADDRESSES NOTED ABOVE. SUBMISSIONS BY FACSIMILE OR

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OTHER ELECTRONIC MEANS WILL NOT ...

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