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United States v. Sayegh

United States District Court, D. Arizona

August 10, 2018

United States of America, Plaintiff,
v.
Juan Mark Sayegh, et al., Defendants.

          ORDER

          David G. Campbell, Senior United States District Judge

         The 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.

         I. Background.

         This 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.

         Koebler 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.

         The government moves to dismiss the petition as untimely. Doc. 309. Koebler opposes the motion. Doc. 318.

         II. Criminal Forfeiture Notice and Filing Requirements.

         Criminal 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).

         Section 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.”

         III. Discussion.

         Koebler 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.

         The 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).

         The 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).[1]

         Pursuant 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” ...


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