United States District Court, E.D. Virginia, Norfolk Division
ORDER AND OPINION
matter comes before the Court on Garth Alexander Salkey's
("Petitioner") Motion to Amend Petition, ECF No.
40, which the Court finds is more appropriately interpreted
and construed as Petitioner's Amended Petition for
Ancillary Hearing pursuant to this Court's previous Order
filed June 3, 2016, ECF No. 39. For the reasons set forth
herein, the Court DENIES and DISMISSES Petitioner's
motion and amended request for an ancillary hearing. ECF No.
FACTUAL AND PROCEDURAL HISTORY
November 17, 2015, Garth Andrew Salkey ("Criminal
Defendant") pled guilty before this Court to a single
count criminal information charging him with Conspiracy to
Distribute and Possess with Intent to Distribute One (1)
Kilogram or more of Heroin, in violation of Title 21, United
States Code, Sections 846 and 841(a)(1) and (b)(l)(A)(i). ECF
Nos. 13, 18. On February 8, 2016, the United States of
America ("the Government") filed a motion for a
preliminary order of forfeiture against the Defendant for a
monetary judgment and a number of other tangible assets,
including money seized from Bank of America account number
435010772090. ECF No. 25. The Government's motion for a
preliminary order for forfeiture indicated that the Criminal
Defendant was the only signatory on the account. ECF No. 25
at 14; ECF No. 25-1 at 2-3. On March 9, 2016, the Court
issued a Preliminary Order of Forfeiture for a $422, 370.00
monetary judgment and various tangible assets including $11,
084.82 seized from Bank of America account number
435010772090. ECF No. 30. The following day, March 10, 2016,
the Court sentenced the Defendant to one hundred thirty-five
(135) months imprisonment and five (5) years supervised
release. ECF No. 32.
Government indicates that notice of these proceedings was
mailed to Petitioner and the Lentz Law Firm on March 15,
2016. ECF No. 38. On April 13, 2016, Petitioner, with the
assistance of an attorney barred in California, filed his
first Petition for an Ancillary Hearing claiming legal
ownership of the $11, 084.82 forfeited to the Government from
Bank of America account number 435010772090. ECF No. 26.
After the Clerk's Office informed the assisting attorney
of the local rules pertaining to Ghostwriting and Foreign
Attorneys, which the assisting attorney was in violation-of,
Petitioner filed a nearly identical Petition for Ancillary
Hearing on April 15, 2016; however, this second petition
omitted all references to the assisting attorney and his law
firm and contained a certification under penalty of perjury
that no attorney had prepared or assisted in the preparation
of the petition. ECF No. 37.
April 22, 2016, the Government filed a Motion to Strike or
Dismiss the Petitions of Garth Alexander Salkey. ECF No. 38.
Petitioner was provided an appropriate period to respond to
the Government's motion, but no response was filed. On
June 3, 2016, the Court granted the Government's motion
to dismiss the petitions for failure to state a claim and for
failure to follow local filing rules; however, the Court also
provided Petitioner fourteen (14) days to amend his petition
and correct the deficiencies noted in the Order. On June 22,
2016, Petitioner filed the instant Motion to Amend, ECF No.
40, which the Court interprets as Petitioner's Amended
Petition for Ancillary Hearing pursuant to the Court's
previous Order. On June 29, 2016, the Government filed a
Brief in Opposition to Petitioner's Motion to Amend. ECF
"a person is charged in a criminal case with a violation
of an Act of Congress for which the civil or criminal
forfeiture of property is authorized" and the
"defendant is convicted of the offense giving rise to
the forfeiture, the court shall order the forfeiture of the
property as part of the sentence in the criminal case
pursuant to the Federal Rules of Criminal Procedure and
section 3554 of title 18, United States Code." 28 U.S.C.
§ 2461(c). The process for such forfeiture is set forth
in 21 U.S.C. § 853, as "[t]he procedures in section
413 of the Controlled Substances Act (21 U.S.C. 853) apply to
all stages of a criminal forfeiture proceeding" with the
exception of subsection (d). Id.
particular, 21 U.S.C. § 853(n) sets forth the relevant
procedures and requirements for resolving third parties'
claimed interests in forfeited property. 21 U.S.C. §
853(n)(l) requires the United States to publish notice of an
order of forfeiture and allows the Government to provide
direct written notice to any person known to have alleged an
interest in the property that is the subject of the
forfeiture order. In addition, § 853(n)(2) provides a
third party thirty days from the final publication of notice
or receipt of notice to assert its legal interest in the
forfeited property through a petition filed with the Court.
Under § 853(n)(6), a third party may obtain relief
through this petition process on only two grounds, which must
be established by a preponderance of the evidence. First,
petitioner may recover by establishing that the
petitioner's interest in the forfeitable property was
superior to the defendant's interest in the property at
the time of the commission of the acts which gave rise to the
forfeiture; or second, by establishing that the petitioner
was a bona fide purchaser for value. See 21 U.S.C.
§ 853(n)(6). Finally, § 853(n)(3) requires a
petition filed by a third party to "be signed by the
petitioner under penalty of perjury" and to "set
forth the nature and extent of the petitioner's right,
title, or interest in the property, the time and
circumstances of the petitioner's acquisition of the
right, title, or interest in the property, any additional
facts supporting the petitioner's claim, and the relief
order to recover forfeited property, petitioners must
establish constitutional and statutory standing, see
United Slates v. Emor, 785 F.3d 671 (D.C. Cir. 2015),
and comply with the pleading requirements set forth in §
853(n)(3). Courts routinely dismiss third party petitions
when they fail to establish standing or meet the pleading
requirements detailed in § 853(n)(3). See, e.g..
United States v. Fabian, 764 F.3d 636, 638 (6th Cir.
2014) (upholding district court's dismissal of petition
because it "asserts only a conclusory legal
interest" in the forfeited property); United States
v. Timley, 507 F.3d 1125, 1129-30 (8th Cir. 2007)
("The specifications that a third-party claimant have a
legal interest (under § 853) and an interest (under Rule
32.2) impose a statutory-standing requirement on claimants.
Thus ... [a claimant] must first demonstrate a legal interest
in the seized item sufficient to satisfy the court of its
standing to contest the forfeiture."); United States
v. Alquzah, 91 F.Supp.3d 818, 825 (W.D. N.C. 2015)
("A petition should be dismissed on the issue of
standing if a petitioner has not asserted a 'legal
interest' in property subject to forfeiture");
United States v. Hailey, 924 F.Supp.2d 648, 658 (D.
Md. 2013) (finding "[c]onclusionary allegations of
ownership and purchase with funds from employment...
insufficient under § 853(n)(3)" and that petitioner
had "not adequately stated the nature of the interest
that she claims in the property"); United States v.
Klemme, 894 F.Supp.2d 1113, 1117 (E.D. Wis. 2012)
(dismissing a petition "as it fails to specify the time
and circumstances of petitioner's acquisition of right,
title, or interest in" the property); United
States v. Ginn, 799 F.Supp.2d 645, 647
(E.D. La. 2010) (dismissing petition where petitioners failed
to state the time of acquisition of legal right, title or
interest in the property and any facts sufficient for finding
that the asserted interest was valid); United States
v. Edwards, 2007 WL 2088608, at *2 (W.D.
La. July 20, 2007) ("the law requires more than a bare
assertion of legal title to establish the nature and extent
of petitioner's right, title or interest in the subject
addition to the legal requirements set forth in 21 U.S.C.
§ 853 and the Federal Rules of Criminal Procedure, a
petitioner claiming a third party interest in forfeited
property must also comply with the United States District
Court for the Eastern District of Virginia's local rules.
Local Criminal Rule 57.4 provides the relevant provisions for
the petitions filed in this matter and sets forth
requirements for foreign attorneys and rules governing
attorney ghostwriting for litigants proceeding pro se. Local
Criminal Rule 57.4(D) allows foreign attorneys to appear pro
hac vice in the Eastern District of Virginia as long as
certain requirements are met. Local Criminal Rule 57.4(M)
sets forth rules governing attorney ghostwriting and
requirements for pro se filings. The local rules are
straightforward and require an attorney engaged in
ghostwriting to comply with all rules that govern attorneys
who have formally appeared in the proceeding. The rules also
require pro se litigants to certify in writing and under
penalty of perjury that their filings have not been prepared
by, or with the aid of, an attorney or they must identify an
attorney who did assist in the preparation of the document.