United States v. $536,039.00 in United States Currency

760 F. Supp. 575, 1990 U.S. Dist. LEXIS 18629, 1990 WL 276584
CourtDistrict Court, S.D. Mississippi
DecidedOctober 17, 1990
DocketCiv. A. No. S90-0226(G)
StatusPublished
Cited by4 cases

This text of 760 F. Supp. 575 (United States v. $536,039.00 in United States Currency) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. $536,039.00 in United States Currency, 760 F. Supp. 575, 1990 U.S. Dist. LEXIS 18629, 1990 WL 276584 (S.D. Miss. 1990).

Opinion

ORDER STRIKING CLAIM AND DEFAULT JUDGMENT OF FORFEITURE

GEX, District Judge.

THIS matter is before this Court pursuant to a motion filed herein by the United States of America (USA) entitled, “Motion to Strike and for Default Judgment.” That motion addresses the claim and other documents filed by Robert M. Zieja (Zieja), an attorney from Fort Lauderdale, Florida, wherein Zieja claims ownership to $65,-000.00 of the $536,039.00 which is the defendant property in this action. The motion to strike essentially claims that Zieja has no interest in defendant property, for the numerous reasons stated in the motion, that he has no standing even to file a claim, or any other documents, that all such documents filed by him should be stricken and that a default judgment should be granted. With these conclusions, the Court agrees and does hereby find and adjudicate as follows:

1. Zieja has no standing in this matter. He had until July 11, 1990, within which to file his claim. His so-called claim was not filed until July 18, 1990. [See Supplemental Rules of Certain Admiralty and Maritime Claims, C(6) ]. He did not, and to this day has not, requested additional time within which to file his claim. Nor was the so-called claim verified as required by Rule C(6). These deficiencies alone are enough to support a finding that Zieja has no standing. United States of America v. One 1978 Piper Navajo PA-31, Aircraft, etc., 748 F.2d 316 (5th Cir.1984).

[576]*5762. Just as compelling in support of a finding of lack of standing is the fact that Zieja’s claim to the $65,000.00 is based upon what is commonly known in the legal profession as a “contingent fee contract.” Under that contract, Zieja had to recover something for his purported client, Manley W. Cargill, before he would be entitled to any fee whatsoever. That contingency simply has not occurred in this case. Not only has Cargill opted not to file a claim, he has filed an affidavit with United States Customs proclaiming a Steven M. Rosen to be his only counsel. Cargill and the drivers of the vehicles from which the $536,039.00 were seized have also signed affidavits waiving their claim to the money and stating that it belongs to a corporation, Star-crest Construction and Development, Inc. Cargill is the owner of that entity, but he did not sign the contingent fee contract on behalf Starcrest. He signed it only as an individual. Cargill obviously had no interest in the money seized. Therefore, even had the contract with Zieja been an outright assignment of the $65,000.00 as opposed to a contingent fee contract, Zieja still would have received no interest therein. United States of America v. $364,960.00 in United States Currency, 661 F.2d 319 (5th Cir.1981). Not unimportant to this issue is the fact that the seizure occurred in this matter on September 1, 1988, and the contingent fee contract between Cargill and Zieja was not even entered into until September 12, 1988. Car-gill has since been convicted of the crime that supports this forfeiture — the interstate transportation of United States Currency derived from certain specified unlawful activities, a violation of 18 U.S.C. §§ 1956(a)(l)(B)(i) and (2) and forfeitable under 18 U.S.C. § 981. That conviction, in the United States District Court for the Southern District of Florida in case number 89-563-CR-1KEHOE, was for a crime occurring in August, 1988.1 Accordingly, the entire $536,039.00 had already been forfeited to the United States when Cargill and Zieja entered into the contingent fee contract on September 12, 1988. 21 U.S.C. § 881(h) and 18 U.S.C. § 981(f). Zieja, being a practicing attorney familiar with this case, must have had reasonable cause to believe that the money was subject to forfeiture. Therefore, even had he acquired any interest in defendant property, his right to it would be negated by this.

3. On September 18, 1990, Zieja received a group of documents which included a copy of the Motion to Strike and for Default Judgment which is being considered by the Court this date, the memo supporting such motion and the notice that a hearing on said motion would be conducted at 8:30 a.m. on this date. Zieja did not respond within the ten (10) days required by local rules nor has he otherwise responded or made any appearance before this Court pursuant to such notice. He apparently has realized the futility of his claim and has chosen to pursue it no more. For this reason and the reasons herein-above ascribed, this court finds that Zieja has no standing in this matter and that his claim, answer and all other documents filed by him herein should be stricken.

4. This matter is now properly before the Court for consideration of the Default Judgment. Pursuant to Fed.R.Civ.P., Rule 55(b)(2) and the entire record in this matter, the Court finds and adjudicates as follows:

a. On May 11, 1990, a Verified Complaint for Forfeiture against the defendant property described above was filed on behalf of the plaintiff, United States of America.
b. Probable cause having been shown by such complaint and so found by the Court in its order of May 11, 1990, the defendant property is forfeitable to the United States of America under 21 U.S.C. § 881(a)(6) and 18 U.S.C. § 981, and has been so forfeited under the provisions of 21 U.S.C. § 881(h) and 18 U.S.C. § 981(f).
c. All process was fully issued in this action and returned according to law.
[577]*577d. Pursuant to a warrant for arrest issued by this Court, agents for the United States Customs Service arrested said property on May 15, 1990, and such arrest was proper in all respects.
e. Immediately, thereafter, the notice of arrest was published in the Clarion Ledger, a newspaper of general circulation in this district, and such publication and notice was proper and legal in all respects, the last date of publication being June 15, 1990.
f. Audley George Antonio, Ainsley Lindo Brown, Manley Wesley Cargill, Ivy Ragbar Cargill, Starcrest Construction and Development, Inc., Birda Page and Robert “Bobby” Zieja were each forwarded copies of the verified complaint, the warrant for arrest of property, the order for warrant for arrest of property and for notice and the notice of action and arrest together with correspondence stating the last publication date as being June 15, 1990.

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760 F. Supp. 575, 1990 U.S. Dist. LEXIS 18629, 1990 WL 276584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-53603900-in-united-states-currency-mssd-1990.