By any measure the claims and verified answer filed by the Kaprals more than demonstrate the "indicia of reliability . . . required to reduce the likelihood of a false or frivolous claim" and the "facially colorable interest in the proceedings sufficient to satisfy the case-or-controversy requirements. " U.S. v. $ 38,570 U.S. Currency, 950 F.2d at 1112.
In U.S. v. One Urban Lot Located at 1 Street A-1, 885 F.2d 994 (1st Cir. 1989), the claimant did not file the "claim" required by Supplemental Rule C(6), but within twenty days did file a verified answer which contained, as in the case at bar, all the information which should have been in the claim. In reversing the trial court's decision striking the claimant's answer Judge John Brown referred to "old fashioned common sense and the time-honored admiralty principle that pleadings and procedural practices in maritime actions should be applied liberally." Id. at 1001.
He further held that the goals of forcing claimants to promptly come forward and preventing false claims had been fully satisfied and that there was a complete absence of prejudice to the government. Id. This reasoning applies with equal or stronger force to the Kaprals' claim.
The statutes and rules governing this type of forfeiture are less than models of clarity, and some confusion is not surprising. Supplemental Rule C(6) states that the ten day period for filing a claim commences "after process has been executed." Since the "arrest" of the Blazer and the Boston Whaler was effectuated on July 31, 1992, the ten day period expired nine days before the Kaprals were served with the Verified Complaint and Notice of Forfeiture on August 19, 1992. Indeed, the ten days expired on the very day the government first published the Notice of Forfeiture in the Atlantic City Press.
Actual notice to a known claimant is required by 19 U.S.C. 1607, although it is not clear whether this section mandates a second notice following the commencement of a judicial foreclosure if, as here, an earlier notice was given when the property was first seized. Regardless of the interpretation of that section of the statute, there is no doubt that due process considerations would require actual notice to a known claimant of the commencement of a judicial forfeiture proceeding. However, the argument of the Kaprals that personal service of the Notice, rather than a mailing to their attorney, was required is without merit. As noted by Judge Brown in U.S. v. One Urban Lot:
Well-known and oft-repeated Supreme Court precedent states that notice of a legal proceeding satisfies due process even if not actually received so long as "notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (citations omitted).
Id. at 998-999.
Not only was notice to the Kaprals' attorney sufficient under the facts of this case, but the filing of the Verified Answer certainly amounted to a waiver of any alleged defect if the notice.
Since under most circumstances the execution of an arrest warrant could not start the ten day clock for filing a claim if the act of arrest did not give reasonable notice to potential claimants, there is inherent ambiguity in the provisions of Supplemental Rule C(6) The government argues that the ten day period for filing the claim should commence when the claimant's attorney received the verified Complaint and the Notice of Seizure on August 19, 1992, although this is not provided by the specific terms of supplemental Rule C(6). See U.S. v. $ 38,000 In U.S. Currency, 816 F.2d 1538, 1546 (11th Cir. 1987).
Because of this possible ambiguity, a court should hesitate to erase a possible substantial property interest based solely on a minor temporal violation. See Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 867-868 (3d Cir. 1984).
Based on the foregoing the court finds that the government has validly instituted the judicial forfeiture proceeding and provided adequate notice thereof to the Kaprals. Taken together the claim and verified answer executed by the Kaprals on September 4, 1992, meet the requirements of supplemental Rule C(6). The Court will, therefore, exercise its discretion to extend the time for filing to the date on which the verified answer was actually filed by the Kaprals.
The court finds (i) that such an extension is specifically permitted by Rule C(6); (ii) there is a strong factual basis to support the Kaprals' standing as a claimant to the property; (iii) the government has at all times been aware that the Kaprals would and could assert an ownership interest in the property; (iv) there is some ambiguity in Rule C(6) concerning the commencement of the ten day period for filing the claim; (v) the court always favors a decision on the merits rather than the harsh remedy of dismissal for a technical procedural violation, particularly a delay measured in days of a filing containing information of which the government is already aware; and (vi) there is no evidence that the delay in filing the claim caused any prejudice to the government.
The government's motion to strike the claim of the Kaprals is denied, and an order in conformance with this opinion will be entered by the court.
JOSEPH E. IRENAS
DATED: November 30, 1992