United States District Court, N.D. California, San Francisco Division
ORDER DENYING THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION AND DENYING PLAINTIFF'S MOTION FOR RETURN OF PROPERTY
LAUREL BEELER, Magistrate Judge.
Plaintiff Chike Okafor filed a Motion for Return of Property under Rule 41(g) of the Federal Rules of Criminal Procedure, the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), and the Due Process clause of the Fifth Amendment, regarding the administrative forfeiture by the Drug Enforcement Administration ("DEA") of $99, 500 in United States currency seized from Plaintiff. ECF No. 1. The government opposed the motion and moved to dismiss for lack of jurisdiction. ECF No. 14. Following a hearing on July 3, 2014, the court denies the government's motion to dismiss for lack of jurisdiction and denies Plaintiff's motion for return of property for the reasons stated below.
I. FACTUAL ALLEGATIONS
On April 4, 2013, DEA agents at San Francisco International Airport seized $99, 500 from Plaintiff's carry-on bag after a trained narcotics canine alerted to the cash, and following a search to which he consented. By Notice bearing a mailing date of May 1, 2013, the DEA informed Plaintiff that the $99, 500 had been seized and was subject to forfeiture pursuant to 21 U.S.C. § 881 because the property was used or acquired as a result of a violation of the Controlled Substances Act. See Rashid Decl., Exhibit 2. ECF No. 12. The Notice provided Plaintiff with a deadline of June 5, 2013 by which to file a claim contesting the forfeiture. Id.
Plaintiff's counsel David Michaels submitted a declaration in support of Plaintiff's motion declaring under oath that on June 4, 2013, he personally delivered a FedEx envelope containing Plaintiff's administrative claim, along with a cover letter that he had drafted, to the FedEx office on Shattuck Avenue in Berkeley, California. See Michaels Decl. at ¶ 3, ECF No. 3. He asserts that he delivered the envelope before the 5:15 deadline on June 4, 2013 for delivery before 10:30 a.m. on June 5, 2013. Id .; see also FedEx priority overnight airbill, Ex. B. to Michaels Decl. (dated "May 4, 2013 "and stamped received by the DEA on June 6, 2013). The airbill does not have any markings on it that show when or where it was actually received by FedEx.
Plaintiff also provided the court with a printout of the tracking information for this envelope available on the FedEx website. Michael's Decl., Ex. L, ECF No. 3. This printout shows that the package was picked up on June 5, 2013 at 4:49 p.m. at Emeryville, CA. The envelope was delivered to the DEA on June 6, 2013, at 9:03 a.m., after the June 5, 2013 deadline. Id.
Michaels states in his declaration that "I have reviewed this delivery with FedEx and they, mysteriously, only trace the package back to the Emeryville processing center and lose track of its location prior to that time." Id. ¶ 3. He does not provide any more information about the nature or substance of this review. He concludes that "it is obvious to [him] that, for some reason, the package was lost or misplaced in the Berkeley drop-off office on 4 June 2013, and inadvertently found in the Emeryville processing center the next day, which accounts for its delivery to DEA on 6 June, 2013." Id. He provides no further information or documentation regarding the delivery of the envelope.
On June 13, 2013, the DEA sent a letter to Plaintiff's counsel stating that the claim was untimely because it was received after the June 5, 2013, deadline and offering Plaintiff twenty days to file a Petition for Remission and/or Mitigation. See Michaels Decl., Ex. C, ECF No. 3. Counsel responded by letter on July 15, 2013, asserting that because the letter and claim were timely sent, the DEA should consider the claim to be timely because the untimely receipt was not due to inadvertence or error on the part of Plaintiff. See Michaels Decl. Ex. D, ECF No. 3. Plaintiff reiterated this position in a series of letters to the DEA and urged the DEA to exercise its discretion to consider the claim as timely filed. See id. For its part, the DEA maintained its position that the claim was untimely but continued to offer Plaintiff the option of filing a Petition for Remission or Mitigation. See Michaels Decl. Exs. D-J. Ultimately, the DEA construed Plaintiff's correspondence as a Petition for Remission or Mitigation and denied it. Rashid Decl., Ex. 19, ECF No. 12.
II. PROCEDURAL HISTORY
Plaintiff filed the instant motion and counsel's supporting declaration on March 4, 2014. ECF Nos. 1, 3. On March 31, 2014, the DEA denied Plaintiff's Petition for Remission or Mitigation of the forfeiture on the basis that there was probable cause, based on the facts, to conclude that the seized currency was furnished or was intended to be furnished in exchange for a controlled substance in violation of 21 U.S.C. § 881(a)(6). See Rashid Decl., Ex. 19, ECF No. 12. On May 15, 2014, the government filed a Motion to Dismiss for Lack of Jurisdiction and an Opposition to Plaintiff's Motion for Return of Property. See ECF No. 14. Plaintiff filed a Reply on May 20, 2014. ECF No. 15. The government filed a Reply on June 5, 2014. ECF No. 16.
I. THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
The threshold issue is whether the court has jurisdiction to review ...