United States v. Three (3) Parcels Real Property

814 F. Supp. 527, 1993 U.S. Dist. LEXIS 7877
CourtDistrict Court, S.D. Mississippi
DecidedJanuary 15, 1993
DocketCiv. A. No. H91-0016(P)(N)
StatusPublished
Cited by1 cases

This text of 814 F. Supp. 527 (United States v. Three (3) Parcels Real Property) 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. Three (3) Parcels Real Property, 814 F. Supp. 527, 1993 U.S. Dist. LEXIS 7877 (S.D. Miss. 1993).

Opinion

[529]*529MEMORANDUM OPINION AND ORDER

PICKERING, District Judge.

This matter is before the Court on Motion to Strike and for Default Judgment or in the Alternative for Summary Judgment filed on behalf of the Plaintiff and on Motion to Amend Claim filed on behalf of the claimants and Motion to Withdraw filed by claimant’s attorney. The Court, having reviewed the motions, the responses, the briefs and the authorities cited, and being otherwise fully advised in the premises, finds that the Plaintiffs Motion to Strike and Motion for Default as to Mayetta Armstrong, and Motion for Summary Judgment as to Robert Lee Armstrong and Ricky Armstrong should be granted, and finds specifically as follows, to-wit;

FACTUAL BACKGROUND

This action, an in rem, judicial forfeiture action, was commenced on February 5, 1991, by the United States of America filing a Verified Complaint for Forfeiture against the defendant property. Attached to the verified complaint is the Declaration of Steve Mona-chello, which certifies and affirms the facts and circumstances supporting the requisite probable cause to justify the forfeiture of the defendant property.

After commencement of this action, the complaint was referred to United States Magistrate Judge John M. Roper, who, after reviewing the verified complaint and declaration, on February 19, 1991, entered an order finding “... that plaintiff has made a prima facie showing that it is entitled to the relief requested as it pertains to the defendant property; and that probable cause exists to believe that Parcels 1 and 2 were used to facilitate the commission of a violation of Title 21, U.S.C. § 841(a), ... and that Parcel No. 3 constitutes ultimate proceeds traceable to an exchange of money, or thing of value, for a controlled substance in violation of Title 21, United States Code.”

Pursuant to that order the defendant property was arrested by a Deputy United States Marshall on March 21,1991. Simultaneously with the arrest, the Deputy Marshall personally served a copy of the complaint, order and warrant for the arrest of the property on Mayetta Armstrong. The notice informed the recipient that she had ten (10) days within which to file her claim and twenty days thereafter within which to file her answer. The notice was also published in the Clarion Ledger, a newspaper published and having general circulation in this District, on April 8, 9, 10, 15, 16, and 17, 1991.

On April 12, 1991, a document styled “Notice of Claim to Property” was filed in this action. It was signed by Robert Lee Armstrong and Mayetta Armstrong and by Attorney John Colette who signed on behalf of Ricky Armstrong as “His duly authorized agent in fact.” This document is not verified on oath or solemn affirmation as required by Supplemental Rule C(6). The claim also merely stated that each of the claimants was “... one of the owners ...” of the defendant property without any specificity whatsoever. A joint answer was also filed for these purported claimants on May 1, 1991.

Record title to Parcel numbers 1 and 2 are vested in Robert Lee Armstrong and wife Mayetta Armstrong as tenants by the entirety. Record title to Parcel number 3 is vested in Ricky Armstrong and Mayetta Armstrong as joint tenants with right of survivorship. The residence of Robert Lee and Mayetta Armstrong is located on Parcels 1 and 2. The residence of Ricky Armstrong is located on Parcel 3.

On March 21,1990, in Criminal Action No. H89-00009(W), Robert Lee Armstrong and Mayetta Armstrong pleaded and were found guilty of possession of marijuana with intent to distribute and Ricky Armstrong pleaded and was found guilty of possession of “crack” cocaine with intent to distribute. All of the crimes to which the Armstrongs pleaded guilty occurred at the residence of Robert Lee and Mayetta Armstrong which comprises Parcels 1 and 2 of the defendant property.

The Supplemental Rules for Certain Admiralty and Maritime Claims, Rule C(6) provides that a claimant of property subject to an in rem action “... shall file a claim within 10 days after process has been executed ...” Service of the warrant on the res constitutes “execution of process” for purposes of the [530]*530forfeiture statutes. See, United States v. $38,570 U.S. Currency, 950 F.2d 1108 (5th Cir.1992), and eases cited therein.

The undisputed evidence is that the property was arrested on March 22, 1991, and further that Mayetta Armstrong was personally served at that time. Any claim by Mayetta Armstrong must have been filed by April 5,1991. The purported claimant, May-etta Armstrong, has not complied with Supplemental Rule C(6). Courts have held claimants to strict compliance with this rule. See, United States v. One 1978 Piper Navajo PA-31 Aircraft, 748 F.2d 316 (5th Cir.1984); United States v. One Assortment of Eighty-Nine Firearms, 846 F.2d 24 (6th Cir.1988); and United States v. $38,000 in U.S. Currency, 816 F.2d 1538 (11th Cir.1987). Mayetta Armstrong has not filed a timely claim and therefore the purported claim filed on her behalf is hereby stricken and it is so ORDERED.

The answer filed on behalf of Mayetta Armstrong must also be stricken because it was not preceded by a timely verified claim, and it is so ORDERED. See, United States v. Beeckcraft Queen Airplane, 789 F.2d 627 (8th Cir.1986).

The purported claim and answer of Mayet-ta Armstrong having been stricken, the United States’ Motion for Default Judgment of Forfeiture is GRANTED, as to Mayetta Armstrong, and it is so ORDERED.

The Government argues that because Mayetta Armstrong was personally served on the day the defendant property was arrested, Robert Lee Armstrong and Ricky Armstrong had constructive knowledge of the arrest, and thus had only until April 5, 1991, to file their claims as well. The Court is of the opinion that Robert Lee Armstrong had constructive knowledge of the arrest because he is married to Mayetta and lives at the same residence. See United States v. Two Parcels of Real Estate and Certain Personal Property in Jefferson Davis County, Mississippi, Civil Action No. H89-0202(P)(N), 1992. Therefore, the purported claim and answer filed by him are also stricken and default judgment is Granted in favor of Plaintiff as to Robert Lee Armstrong’s claim.

However, Ricky Armstrong was incarcerated at the time of the arrest and the Government has not shown any basis for imputing constructive knowledge of the arrest to him. The purported claim, if valid, would have been timely filed by Ricky Armstrong.

Claimant Ricky Armstrong argues that the purported claim is a good faith attempt to file a valid claim. He does not cite the Court to any authority which recognizes any such “good faith attempt” as a valid claim, however.

Ricky Armstrong has admitted that the purported claim does not technically comply with Supplemental Rule C(6).

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Bluebook (online)
814 F. Supp. 527, 1993 U.S. Dist. LEXIS 7877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-three-3-parcels-real-property-mssd-1993.