United States District Court, D. Arizona
G. Campbell, Senior United States District Judge
United States has filed a motion to dismiss Claimant Tara
Koebler's petition contesting forfeiture of certain real
property. Docs. 297, 309. The motion is fully briefed. Docs.
318, 320. Oral argument has not been requested. For reasons
stated below, the Court will grant the motion.
case involves the manufacture and distribution of controlled
substance analogues commonly known as “spice” and
“bath salts.” Doc. 3. Koebler's former
spouse, Defendant Juan Sayegh, pled guilty to two counts of
the superseding indictment, conspiracy to distribute a
controlled substance analogue and conspiracy to commit money
laundering. Docs. 66, 198. The Court issued a preliminary
order forfeiting monetary assets and certain real property
connected to the crimes, including property located at 13250
North 1st Place, Phoenix, Arizona (“North 1st
Place”). Doc. 215 at 2.
filed a sentencing memorandum claiming an interest in North
1st Place (the “petition”). Doc. 297. Consistent
with his plea agreement, Sayegh received a 48-month sentence
and forfeited his interest in the North 1st Place parcel and
other property identified in the preliminary forfeiture
order. Docs. 304, 307. The Court declined to enter a final
order of forfeiture with respect to North 1st Place due to
Koebler's petition. Id.
government moves to dismiss the petition as untimely. Doc.
309. Koebler opposes the motion. Doc. 318.
Criminal Forfeiture Notice and Filing Requirements.
forfeiture of property is governed by 21 U.S.C. § 853
and Federal Rule of Criminal Procedure 32.2. Section
853(n)(1) requires the government to publish notice of the
forfeiture order and its intent to dispose of the property.
Rule 32.2(b) requires notice by publication and direct notice
to all reasonably known potential claimants. Fed. R. Crim. P.
32.2(b)(6)(A). The notice must describe the property subject
to forfeiture, state the time when a petition contesting
forfeiture must be filed, and state the name and contact
information for the government attorney to be served with the
petition. Fed. R. Crim. P. 32.2(b)(6)(B). The notice must be
published and sent to potential claimants in accordance with
certain provisions of Supplemental Rule G(4) of the Federal
Rules of Civil Procedure. Fed. R. Crim. P. 32.2(b)(6)(C)-(D);
Supp. R. G(4)(a)(iii)-(iv), (b)(iii)-(iv).
853(n)(2) permits a third party to file a petition contesting
forfeiture “within thirty days of the final publication
of notice or [her] receipt of notice[, ] whichever is
earlier[.]” Courts have held that “the time
requirements of [§] 853(n)(2) are mandatory and that a
third party who fails to file a petition within the
prescribed thirty days ‘forfeits her interest in the
property.'” United States v. Muckle, 709
F.Supp.2d 1371, 1372 (M.D. Ga. 2010) (quoting United
States v. Marion, 562 F.3d 1330, 1337 (11th Cir. 2009)).
Indeed, Rule 32.2(c)(2) specifically provides that a third
party who fails to file a timely petition may not object to
the forfeiture “on the ground that the third party had
an interest in the property.”
filed her petition contesting the forfeiture of North 1st
Place on April 25, 2018. Doc. 297. The petition must be
dismissed as untimely, the government argues, because it was
filed more than five months after notice of the forfeiture
was provided to Koebler pursuant to § 853(n)(1) and Rule
32.2(b)(6). Doc. 309 at 3-8. The Court agrees.
government provided Koebler with notice of the forfeiture in
three ways: by mail, service on her attorney, and
publication. The government mailed notices of the forfeiture
to the North 1st Place address and the last known address at
which Koebler and Sayegh resided, 2926 East Hartford Avenue,
Phoenix, Arizona (“East Hartford”). Doc. 309-3.
The notices were sent by regular mail and certified mail on
September 26, 2017. Id. The notices sent to North
1st Place and the notice sent to East Hartford by certified
mail were returned undelivered, but the notice sent to East
Hartford by regular mail was not returned. “Mail that
is properly addressed, stamped and deposited into the mails
is presumed to be received by the addressee.” In re
Bucknum, 951 F.2d 204, 207 (9th Cir. 1991) (citation
omitted); see Hagner v. United States, 285 U.S. 427,
430 (1932) (“The rule is well settled that proof that a
letter properly directed was placed in a post office creates
a presumption that it reached its destination in the usual
time and was actually received by the person to whom it was
addressed.”); United States v. Devlin, No.
6:11-CR-56-ORL-28KRS, 2013 WL 275968, at *9 (M.D. Fla. Jan.
22, 2013) (dismissing petition as untimely and noting that
the common law has long recognized a “presumption that
an item properly mailed was received by the
addressee”). Applying the five-day “usual
time” for mail delivery, the deadline for Koebler to
file a petition based on the notice provided by regular mail
was October 31, 2017 (35 days after September 26).
Devlin, 2013 WL 275968, at *10; see 21
U.S.C. § 853(n)(2).
same day that notices were mailed to Koebler, the government
served her attorney in a related civil forfeiture action with
notice of the criminal forfeiture order in this case. Doc.
309-5; see United States v. Consortium Distribution,
No. CV-12-2616-PHX-SLG (D. Ariz.). The notice advised counsel
that pursuant to § 853(n)(2), a claimant must file a
petition contesting forfeiture within 30 days of receipt of
the notice. Doc. 309-5 at 1. The notice was sufficient to
apprise Koebler of the pendency of the criminal forfeiture
action and afford her an opportunity to file a petition
contesting forfeiture of North 1st Place. See Supp.
R. G(4)(b)(iii)(B) (the government may provide direct notice
of the forfeiture by sending notice to “the attorney
representing the potential claimant with respect to the
seizure of the property or in a related investigation,
administrative forfeiture proceeding, or criminal
case”); Muckle, 709 F.Supp.2d at 1373
(“Whether Rule G(4) applies or not, notice to a
potential claimant's known attorney of record is notice
reasonably calculated to apprise the claimant of the pendency
of the action and afford her an opportunity to present her
objections.”). The notice to Koebler's attorney was
received on October 5, 2017. Id. at 4. Koebler was
required to file a petition within 30 days, or November 4,
2017. 21 U.S.C. § 853(n)(2).
to Supplement Rule G(4)(a), the government also published
notice of the forfeiture on its official website,
www.forfeiture.gov, for 30 consecutive days between
September 20 and October 19, 2017. Doc. 309-1. The notice
included the preliminary forfeiture order describing the
North 1st Place property, stated that any claimant must file
a petition within 30 days of the last date of publication,
and provided the name and contact information for the
government attorney to be served with the petition.
Id. at 7-8. This official internet publication was
sufficient to notify Koebler of the forfeiture of North 1st
Place. Fed. R. Crim. P. 32.2(b)(6)(C); Supp. R.
G(4)(a)(iv)(C); see United States v. $9, 960.00 in U.S.
Currency, No. 1:12CV293, 2013 WL 566181, at *2 (W.D.
N.C. Feb. 13, 2013) (finding that the government satisfied
Supplement Rule G(4) and due process requirements by
publishing notice for 30 days on the official forfeiture
website); United States v. $8, 5000.00 in U.S.
Currency, No. 1:08CV1103, 2009 WL 1252379, at *3 (E.D.
Va. May 5, 2009) (finding that the notice requirements of
Supplement Rule G(4) were met where the “required
notice appeared on an official internet government forfeiture
site for thirty days”). Koebler's deadline for
filing a petition based on the notice by publication was
November 20, 2017 - 30 days after “the final
publication of notice” ...