UNITED STATES v. APPROXIMATELY 35 860 00 IN CURRENCY (2024)

ORDER

This matter comes before the Court on the Motion for Return of Property (Doc. 21), filed by Felix Perocier Cabo (“Perocier Cabo”) on February 20, 2024. In the motion, Perocier Cabo requests the Court enter an Order directing the Government to return to him the seized approximately $35,860.00 in U.S. currency. The Government filed a response in opposition (Doc. 22). Pursuant to the Court's Order directing a reply, Perocier Cabo filed a reply on March 14, 2024 (Doc. 24). The Court, having considered the motion and being fully advised in the premises, will deny Perocier Cabo's Motion for Return of Property.

I. BACKGROUND

On January 29, 2009, Perocier Cabo pleaded guilty in the United States District Court, for the District of Puerto Rico, to the federal felony offense of possession with intent to distribute five kilograms or more of cocaine and was sentenced to 10 years in federal prison, followed by a five-year term of supervised release. Doc. 1 ¶ 11. Fast forward to 2023 after Perocier Cabo had been released from prison but while he was still on supervised release, law enforcement began monitoring an Acura SUV and Acura sedan registered to Perocier Cabo's mother, traveling between the Orlando and Fort Myers areas. Id. at ¶ 12. On April 13, 2023, law enforcement stopped the Acura SUV as it travelled northbound on I-75. Id. at ¶¶ 13–14. Upon approaching the vehicle, a law enforcement officer detected the smell of marijuana. Id. at ¶ 15. Perocier Cabo was the driver and sole occupant of the vehicle. Id. at ¶ 16. Perocier Cabo consented to a search of the vehicle, in which law enforcement found a vacuum-sealed bag containing bundles of U.S. currency hidden in the vehicles’ trunk. Id. at ¶¶ 17-18. In total, law enforcement found and seized $35,860.00 in U.S. currency. Id.

When questioned regarding the source of the money and his reason for travel, Perocier Cabo stated he went from Orlando to Fort Myers to visit his friend “Jose” for approximately 30 minutes and that the money was his “spending money.” Id. at ¶¶ 19-20. A law enforcement officer used a narcotics detection dog to conduct a free-air sniff of the vehicle. Id. at ¶ 21. The dog provided a positive alert to the odor of narcotics within the vehicle; however, no drugs were located. Id. at ¶ 22. Law enforcement located six cell phones inside the vehicle and an additional cell phone on Perocier Cabo. Id. at ¶ 23. Perocier Cabo provided passwords and consented to the search of the cell phones. Id. at ¶ 24. The cell phones contained photos of what law enforcement officers believed to be “bricks” of cocaine. Id. at ¶ 25. Law enforcement seized the Defendant Currency, believing the cash to be drug proceeds. Id. at ¶ 27.

On June 13, 2023, Perocier Cabo received a letter titled “Notice of Seizure Property and Initiation of Administrative Forfeiture Proceedings,” marked as “23-DEA-702106,” which was dated and postmarked on June 8, 2023. Doc. 21 at 3; Doc 21-1. On July 13, 2023, Perocier Cabo completed and electronically submitted a Verified Claim of Ownership relating to Notice Letter “23-DEA-702106.” Doc. 21 at 3; Doc 21-1. On November 8, 2023, the United States initiated a Complaint for Forfeiture in Rem against Approximately $35,860.00 in U.S. Currency (Doc. 1).

On February 20, 2024, Perocier Cabo filed the instant Motion for Return of Property, arguing that the Government did not provide timely notice of the seizure and failed to file its verified complaint on time. Doc. 21 at 3–6. Regarding timely notice, Perocier Cabo explains the seizure of the Defendant Currency occurred on April 13, 2023, but he did not receive notice of the administrative forfeiture proceedings until 61 days after, exceeding the 60-day statutory deadline for doing so. Id. at 2,4. Regarding the timeliness of the complaint, Perocier Cabo contends he made a claim to the currency on July 13, 2023, and the Government did not file its complaint until November 8, 2023, which was untimely. Id. at 2-3. Perocier Cabo submits that because the complaint was not filed until 118 days later, which exceeds the 90-day statutory period for filing, the complaint's late filing justifies return of the property. Id. at 4-6.

Responding in opposition, the Government first argues notice was timely because the currency was initially seized by Florida Highway Patrol and turned over to the DEA; thus, the DEA had 90 days—not 60 days—to send the notice of forfeiture. Doc. 22 at 4. Regarding the timeliness of the complaint, the Government explains Perocier Cabo's counsel agreed, via email, to an extension through November 11, 2023, in which to file the Government's complaint, to allow time for the parties to engage in settlement discussions. Doc. 22-1. The Government asks the Court to extend the deadline to reflect the agreement of the parties or equitably toll the deadline. Doc. 22 at 5. Further, the Government contends it diligently complied with both the spirit and letter of 18 U.S.C. § 983(a)(3)(A), and the delay did not prejudice Perocier Cabo but would greatly prejudice the Government if the currency had to be returned. Id. at 6.

In reply, Perocier Cabo contends the Government did not allege in its complaint that the Florida Highway Patrol transferred the currency to the DEA; therefore, the Government is under the legal duty to provide documentation to support the existence of the transfer. Doc. 25 at 3-4. Regarding the timeliness of the complaint, Perocier Cabo argues that, notwithstanding his lack of opposition to the extension, the Government was still obligated to file a motion with the court for an extension of time, and no such extension was sought or granted. Id. at 6. Perocier Cabo contends that although his counsel did not oppose an extension on the Government's behalf, the Government was legally obligated to seek court approval for any extension, which it failed to do. Id. at 9. Lastly, Perocier Cabo states the 90-day time limit imposed by the statute is mandatory and should be strictly followed. Id. at 5-6.

II. LEGAL STANDARD

A. Notice of Seizure

The rules for civil forfeiture proceedings are outlined in 18 U.S.C. § 983, also referred to as the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). The subsection that generally governs notice states:

(a) Notice; claim; complaint.—

(1)(A)(i) Except as provided in clauses (ii) through (v), in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute, with respect to which the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure.

18 U.S.C. § 983(a)(1)(A)(i).

The 60-day statutory deadline may be extended if the property was originally seized by the State or a local law enforcement agency and then turned over to a federal law enforcement agency. Subsection (iv) addresses this as follows:

(iv) In a case in which the property is seized by a State or local law enforcement agency and turned over to a Federal law enforcement agency for the purpose of forfeiture under Federal law, notice shall be sent not more than 90 days after the date of seizure by the State or local law enforcement agency.

18 U.S.C. § 983(a)(1)(A)(iv). The person from whom the property was seized has a statutory right under 18 U.S.C. § 983(a)(1)(F) to the return of the property if the Government fails to fulfill its notice obligations. De Saro v. United States, 173 F. App'x 760, 764 (11th Cir. 2006). Under § 983(a)(1)(F):

If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.

18 U.S.C.A. § 983(a)(1)(F).

B. Time for Filing a Complaint

The subsection that governs timeliness of filing for the complaint provides:

(3)(a) Not later than 90 days after a claim has been filed, the Government shall file a complaint for forfeiture in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims or return the property pending the filing of a complaint, except that a court in the district in which the complaint will be filed may extend the period for filing a complaint for good cause shown or upon agreement of the parties.

18 U.S.C. § 983(a)(3)(A).

If the Government does not file a complaint for forfeiture or return of the property in accordance with 18 U.S.C. § 983(a)(3)(A) or obtain a criminal indictment that the property is subject to forfeiture, the Government shall “promptly release” the property and may not take any action in furtherance of civil forfeiture of the property. 18 U.S.C. § 983(a)(3)(B).

III. DISCUSSION

A. The Government's Notice of Seizure was Timely

In his motion, Perocier Cabo first argues that the seized currency must be returned because the Government failed to give him timely written notice of the seizure within 60 days. Doc. 21 at 3–4. From the date of seizure, April 13, 2023, to the date notice was received by Perocier Cabo, June 13, 2023, is 61 days. See Doc. 21 at 2-3. Thus, Perocier Cabo argues the untimely notice mandates return of the seized currency. However, the plain reading of 18 U.S.C. § 983(a)(1)(A), which governs notice for civil forfeiture proceedings, reveals that “the Government is required to send written notice ․ in no case more than 60 days after the date of the seizure.” Notice was sent by the Government on June 8, 2023, evidenced by the dated notice and postmarked envelope filed by Perocier Cabo. Doc. 21-1 at 1–2. From the date of seizure, April 13, 2023, to the date notice was sent by the Government, June 8, 2023, is 56 days, which is within the 60-day statutory time frame. Furthermore, in Assorted Jewelry with an Approximate Value of $219,860.00, an out-of-circuit case relied upon by Perocier Cabo to argue strict adherence to the statutory 60-day limit, the court based its decision on the date notice was mailed to the claimant. See Assorted Jewelry with an Approximate Value of $219,860.00, 386 F. Supp. 2d 9, 13 (D.P.R. 2005). The notice, which was sent 63 days after seizure in that case, was found to be untimely. Id. In contrast, in the instant case, the notice was sent in 56 days, albeit not received until the 61st day. Based on a plain reading of 18 U.S.C. § 983(a)(1)(A), the Government complied with the statutory time limit by sending notice within 60 days after the date of seizure. Accordingly, notice was timely, and Perocier Cabo's argument on this point fails.¹

B. Good Cause Exists for the Complaint Being Filed After 90 Days

Perocier Cabo next argues that the seized currency must be returned to him because the Government did not file its complaint within 90 days of his claim. In this Circuit, forfeiture is not favored and statutes providing for forfeiture are strictly construed. United States v. One 1977 Cadillac Coupe DeVille VIN: 6D47S7Q234771, 644 F.2d 500, 501 (5th Cir. 1981);² see also United States v. $38,000.00 Dollars in U.S. Currency, 816 F.2d 1538, 1547 (11th Cir. 1987) (“Forfeitures are not favored in the law; strict compliance with the letter of the law by those seeking forfeiture must be required.”). Other jurisdictions have held the 90-day time limit imposed on the Government by 18 U.S.C. § 983 to be mandatory. United States v. Wilson, 699 F.3d 789, 791 (4th Cir. 2012).

The rules governing civil forfeiture proceedings, however, allow for an extension of time upon good cause shown or agreement of the parties. 18 U.S.C. § 983(a)(3)(A). Courts have found this extension can be granted even after the 90-day period has elapsed. See United States v. $55,140.00 in U.S. Currency, No. 5:04-CV-407-SPM AK, 2005 WL 6577605, at *1 (N.D. Fla. Jan. 20, 2005). In $55,140.00 in U.S. Currency, the court reasoned that hardships due to a hurricane constituted good cause warranting an extension to file the complaint. Id. The 90-day deadline can also be equitably tolled. In United States v. $229,850.00 in U.S. Currency, 50 F. Supp. 3d 1171, 1185 (D. Ariz. 2014), the court applied the doctrine of equitable tolling to excuse late filing of a forfeiture complaint. In Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703 (11th Cir. 1998), the court noted that unless Congress specifies otherwise, equitable tolling should be assumed to apply to every federal statute of limitations. Id. at 706 (citing Holmberg v. Armbrecht, 327 U.S. 392, 394–96 (1946)).

In United States v. $39,480.00 in U.S. Currency, 190 F. Supp. 2d 929, 931 (W.D. Tex. 2002), the Government admitted to filing its complaint one day late but argued that it was in a good faith reliance on an administrative error. The $39,480.00 in U.S. Currency court reasoned that the Government made a good faith attempt to comply with 18 U.S.C. § 983 and the late filing was only a minimal delay. Id. The court also concluded that the late filing did not prejudice the claimant but had the potential to cause severe prejudice to the Government; therefore, it was justified in tolling the 90-day deadline. Id. Similarly, in United States v. Thirty-Four Thousand Nine Hundred Twenty-Nine & 00/100 Dollars ($34,929.00) in U.S. Currency, No. 2:09-CV-734, 2010 WL 481250, at *3 (S.D. Ohio Feb. 5, 2010), the court applied equitable tolling to the 90-day filing period because the Government had made a good-faith effort in complying with both the spirit and the letter of the law. The court explained that the Government had made no apparent attempt to frustrate the purpose of the statute. Id. Although these out-of-circuit cases are not binding on this Court, their analysis is logical and persuasive.

Here, both parties agreed to an extension through November 11, 2023, for the Government to file its complaint (Doc. 22-1), and the Complaint for Forfeiture in Rem was filed within that time on November 8, 2023 (Doc. 1). Although the Government did not petition the court for an extension of time to file its complaint, its reliance on opposing counsel's agreement to an extension of time was in good faith and it did not frustrate the purpose of the 90-day deadline. Perocier Cabo would not be prejudiced because the extension was agreed to in the first instance by his counsel. In contrast, if the Court does not extend the deadline, the Government would be greatly prejudiced by being required to return the Defendant Currency, terminating the forfeiture proceeding. Therefore, given the agreement of the parties, the Court finds it appropriate to extend the complaint filing deadline considering the Government's good faith reliance on opposing counsel's agreement to the extension. Accordingly, it is

ORDERED:

1. Perocier Cabo's Motion for Return of Property (Doc. 21) is DENIED.

DONE AND ORDERED in Tampa, Florida on June 13, 2024.

FOOTNOTES

1.   Because notice was received within 60 days, the Court need not reach the issue of whether the Defendant currency was initially seized by Florida Highway Patrol and turned over to the DEA such that the 90-day rather than the 60-day notice applied. Under either scenario, the Government's notice that was sent 56 days after seizure was timely.

2.   In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

Charlene Edwards Honeywell, United States District Judge