Opinion
6:20-CV-06060 EAW
2021-05-21
UNITED STATES of America, Plaintiff, v. $46,812.00 UNITED STATES CURRENCY, Defendant.
Grace M. Carducci, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
Grace M. Carducci, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Plaintiff United States of America ("Plaintiff") brings an in rem action for the forfeiture of $46,812.00 United States currency (the "Defendant Currency") pursuant to 28 U.S.C. §§ 1345 and 1355(a). (Dkt. 1). Presently before the Court is Plaintiff's motion for a default judgment pursuant to Fed. R. Civ. P. 55(b)(2), and for an order of forfeiture. (Dkt. 9). For the reasons that follow, Plaintiff's motion is granted.
BACKGROUND
The following facts are taken from Plaintiff's verified complaint for forfeiture. (Dkt. 1).
On August 15, 2019, law enforcement executed a search warrant at the residence of Brent J. Crockton ("Crockton"), located at 52 Violetta Street, Rochester, New York. (Dkt. 1 at ¶¶ 4, 5). When the officers arrived, they encountered Crockton and his girlfriend, Alexandria A. Ross ("Ross"), and they were detained. (Id. at ¶ 5). During the search, law enforcement seized the Defendant Currency, which was located in men's clothing throughout Crockton's bedroom. (Id. at ¶ 6).
Law enforcement also seized the following items from the residence: a Taurus .40 caliber handgun bearing serial number SKS2623, loaded with a Taurus magazine that contained five rounds; five cellular telephones; personal papers and mail addressed to Crockton; numerous wax envelopes stamped "Awaken"; two black digital scales; various narcotics packaging material; three clear plastic bags that contained unidentified cut; numerous plastic bags that contained suspected heroin; numerous clear plastic bags that contained suspected fentanyl; numerous wax envelopes marked "Hall Pass" that contained suspected heroin; a clear zip lock bag that contained suspected cocaine; clear plastic bags that contained suspected Tramadol ; a clear plastic bag that contained suspected marijuana; and a grinder that contained suspected fentanyl residue. (Id. ).
Subsequent to the search, "Mic," a certified narcotics detection canine capable of detecting the odors of cocaine, heroin, methamphetamine, LSD, ecstasy, and marijuana, positively alerted to the third envelope in an array of five envelopes as an indication for the odor of a controlled substance. (Id. at ¶ 7). The third envelope in the array of five envelopes contained the Defendant Currency. (Id. ).
The Defendant Currency consists of the following denominations: 169 one hundred-dollar bills; 167 fifty-dollar bills; 1,069 twenty-dollar bills; 11 ten-dollar bills; 8 five-dollar bills; and 32 one-dollar bills. (Id. at ¶ 9). The majority of the Defendant Currency consisted of $20.00 bills which, based upon law enforcement training and experience, is significant because smaller denominations are more commonly used than other denominations in street-level drug trafficking. (Id. ).
Crockton and Ross were arrested and charged with two counts of Criminal Possession of a Controlled Substance in the 2nd degree and Criminal Possession of a Loaded Weapon in the 2nd degree. (Id. at ¶ 10). At the time of the filing of the verified complaint, those charges were still pending. (Id. ). The putative claimant, Andrea Crockton, filed an administrative claim with the Drug Enforcement Administration pro se on October 29, 2019, to halt the administrative forfeiture proceedings against the Defendant Currency and refer it for judicial forfeiture proceedings. (Id. at ¶ 13). No other claims were filed. (Id. ).
PROCEDURAL HISTORY
On January 27, 2020, Plaintiff filed the instant action. (Dkt. 1). Copies of the verified complaint for forfeiture, arrest warrant in rem , and direct notice of forfeiture action were sent via FedEx to putative claimant Andrea Crockton on February 5, 2020. (Dkt. 3; see also Dkt. 9 at 4, ¶ 4; Dkt. 9-2). The arrest warrant in rem directs that "[a]ll persons asserting an interest in the defendant property and who have received direct notice of the forfeiture action must file a Verified Claim with the Clerk of this Court pursuant to Rule G(5) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, thirty-five (35) days after the notice is sent[.]" (Dkt. 1-2 at 1). It also states, "any person having filed such a claim shall also serve and file an answer to the complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure within twenty-one (21) days after filing the claim[.]" (Id. ). On February 12, 2020, Plaintiff posted a notice of civil forfeiture regarding the Defendant Currency on an official government internet site, www.forfeiture.gov, and it was posted for 30 consecutive days. (Dkt. 6; see also Dkt. 9 at 4, ¶ 5; Dkt. 9-3).
On May 15, 2020, Plaintiff requested that the Clerk of Court enter default against the Defendant Currency pursuant to Federal Rule of Civil Procedure 55(a). (Dkt. 7). The Clerk entered default on May 18, 2020. (Dkt. 8; see also Dkt. 9-4).
On December 15, 2020, Plaintiff filed the instant motion for default judgment and order of forfeiture. (Dkt. 9). Both the motion and motion scheduling order were served on putative claimant Andrea Crockton via United States Postal Service certified mail on December 18, 2020 (Dkt. 11), and responses were to be submitted by January 11, 2021 (Dkt. 10). To date, the putative claimant has not filed a response to the motion.
DISCUSSION
I. Legal Standard
Under Rule 55(a) of the Federal Rules of Civil Procedure, "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend," then "the clerk must enter the party's default." After the clerk enters the default, "the party must apply to the court for a default judgment." Fed. R. Civ. P. 55(b)(2). "The court may set aside an entry of default for good cause[.]" Id. at 55(c). The Second Circuit has "established three criteria that must be assessed in order to decide whether to relieve a party from default[.]" Enron Oil Corp. v. Diakuhara , 10 F.3d 90, 96 (2d Cir. 1993). "These criteria are: (1) the willfulness of default, (2) the existence of any meritorious defenses, and (3) prejudice to the non-defaulting party." Bricklayers and Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Constr., LLC , 779 F.3d 182, 186 (2d Cir. 2015) (quotation omitted). "Other relevant equitable factors may also be considered, for instance, whether the failure to follow a rule of procedure was a mistake made in good faith and whether the entry of default would bring about a harsh or unfair result." Enron , 10 F.3d at 96. "Because there is a preference for resolving disputes on the merits, doubts should be resolved in favor of the defaulting party." Powerserve Int'l, Inc. v. Lavi , 239 F.3d 508, 514 (2d Cir. 2001).
II. Forfeiture Action and Default
"In rem forfeiture actions are governed by Rule G of the Forfeiture Rules and the Civil Asset Forfeiture Reform Act of 2000 (‘CAFRA’)[.]" United States v. Vazquez-Alvarez , 760 F.3d 193, 197 (2d Cir. 2014) (footnote and citation omitted); see 18 U.S.C. § 983. "The Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions also govern civil forfeiture claims." Vazquez-Alvarez , 760 F.3d at 197 n.3 ; see 18 U.S.C. § 981(b)(2) ; 21 U.S.C. § 881(b).
The Court has reviewed both the verified complaint for forfeiture (Dkt. 1) and the affidavit of Assistant United States Attorney Grace M. Carducci filed on December 15, 2020 in support of the motion for default judgment and order of forfeiture (Dkt. 9 at 3-6). The Court has also considered the Enron Oil criteria described above, including the willfulness of the default, the existence of any meritorious defenses, and the prejudice to the non-defaulting party. As discussed above, Plaintiff has demonstrated that all of the persons or entities known or thought to have an interest in or claim to the Defendant Currency have been given due notice of these proceedings, and no response to Plaintiff's motion has been filed, nor has any verified claim or answer been filed. See Krevat v. Burgers to Go, Inc. , No. 13-CV-6258(JS)(AKT), 2014 WL 4638844, at *6 (E.D.N.Y. Sept. 16, 2014) ("Defendant's failure to appear, failure to respond to the Complaint, and failure to respond to the instant motion sufficiently demonstrate willfulness," and "where a defendant fails to answer the complaint, a court is unable to make a determination whether the defendant has a meritorious defense to the plaintiff's claims, which circumstance weighs in favor of granting a default judgment."); Mason Tenders Dist. Council v. Duce Const. Corp. , No. 02Civ.9044(LTS)(GWG), 2003 WL 1960584, at *2 (S.D.N.Y. April 25, 2003) ("Defendants, having failed to respond in any way to the Summons and Complaint or otherwise make any appearance in this action and having failed to provide any explanation for its failure to defend, have defaulted willfully."). Accordingly, in accordance with Fed. R. Civ. P. 55(b), Plaintiff's motion is granted.
CONCLUSION
Plaintiff's motion for a default judgment and for an order of forfeiture is granted. Accordingly, it is hereby
ORDERED, ADJUDGED AND DECREED that this Judgment of Default be entered against the Defendant Currency; and it is hereby
ORDERED, ADJUDGED AND DECREED that the Defendant Currency is hereby forfeited to Plaintiff pursuant to 21 U.S.C. § 881(a)(6) ; and it is further
ORDERED, ADJUDGED AND DECREED that the United States Marshals Service shall dispose of the Defendant Currency in accordance with law; and it is further
ORDERED, ADJUDGED AND DECREED that any claims to the Defendant Currency are hereby forever barred.
SO ORDERED.