The opinion of the court was delivered by: JOSEPH E. IRENAS
In this forfeiture action the United States of America has moved to strike the ownership claim of Michael and Connie Kapral to one 1987 27 foot Boston Whaler and one 1987 Chevrolet Blazer alleged to have been used in or purchased with the proceeds of illegal narcotics transactions. The dispute before the court does not involve the merits of the legal or factual position of either the government or the Kaprals. Rather, the motion to strike is based on the alleged failure of the Kaprals to file a claim within the time and in the form required by the Supplemental Rules For Certain Admiralty and Maritime Claims, 28 U.S.C. Supplemental Rule 6(C) ("Supplemental Rules").
For the reasons hereafter set forth, the government's motion will be denied.
The heart of the government's legal position is that the Boston Whaler was purchased with proceeds derived from the illegal sale of methamphetamine and that the Blazer was used to transport or facilitate the transportation of the same illegal narcotic. See Verified Complaint for Forfeiture ("Comp.") filed on July 17, 1992; 28 U.S.C. § 881 (a)(4) and (6).
Agents of the United States Drug Enforcement Agency seized the Blazer on March 24, 1992, and three days later impounded the Boston Whaler. Comp., Count I, P 4 and Count II, P 4.
If a claimant files a sworn claim to the property and posts a sufficient bond, the administrative procedure ceases, and the matter is referred to the appropriate United States Attorney for what is referred to as judicial condemnation or judicial forfeiture. 19 U.S.C. § 1608; 21 C.F.R. § 1316.78 (1992); 19 C.F.R. § 162.47(d) (1992). In this proceeding the Supplemental Rules apply. 28 U.S.C. § 2461. See United States v. United States Currency Etc., 754 F.2d 208, 210-213 (7th Cir. 1985).
The Kaprals concede that on or about May 15, 1992, they received by certified mail several Notices of Seizure advising them that the Blazer and the Boston Whaler had been seized because they had been "used or acquired as a result of a drug-related offense." These notices advised the Kaprals that to contest the forfeiture they had twenty days "from the first date of publication" to file personally signed claims of ownership accompanied by an appropriate cost bond.
As required by 19 U.S.C. § 1607(a) and 21 C.F.R. § 1316.75, the seizure of the Blazer was advertised in USA TODAY on May 6, 1992. A similar notice for the Boston Whaler was published on May 20, 1992. It is unclear from the motion papers whether either of these notices was published for three weeks as required by the statute and regulation. 19 U.S.C. § 1607(a); 21 C.F.R. § 1316.75(a).
It is not disputed that upon receiving the Notices of Seizure the Kaprals timely filed the sworn claims of ownership and bonds required to stop the administrative forfeiture process. On May 15, 1992, Michael Kapral asserted ownership of the Blazer and posted a $ 1,170 bond. On May 29, 1992, both Kaprals asserted ownership of the Boston Whaler and posted a $ 5,000 bond. As required by statute, the government resorted to the courts to complete the forfeiture. 19 U.S.C. § 1608; 21 C.F.R. § 1316.78.
On July 17, 1992, the government filed its Verified Complaint For Forfeiture of the Blazer and the Boston Whaler. Supplemental Rules C(2) and E(2)(a). Supplemental Rule C(3) provides that original process should be by warrant of arrest. See also Supplemental Rule E(4). Since the property had previously been seized, execution of the arrest warrant on July 31, 1992, was achieved by the metaphysical act of having a Deputy United States Marshall serve the arrest warrant upon United States Marshall, Arthur Borinsky.
A Notice of Forfeiture announcing the commencement of judicial proceedings was published in the Atlantic City Press on August 10, 17, and 24, 1992, and in the Courier Post of Camden on August 14 and 21, 1992. Supplemental Rule C(4).
The nub of the controversy at bar is the government's allegation that the Kaprals failed to comply with Supplemental Rule C(6) ...