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United States v. Salkey

United States District Court, E.D. Virginia, Norfolk Division

July 11, 2016

UNITED STATES OF AMERICA,
v.
GARTH ANDREW SALKEY, Defendant.

          ORDER AND OPINION

         This 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. 40.

         I. FACTUAL AND PROCEDURAL HISTORY

         On 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.

         The 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.

         On 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 No. 41.

         II. LEGAL STANDARDS

         A. Criminal Forfeiture

         When "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.

         In 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 sought."

         In 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 property.").

         B. Local Rules

         In 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.

         III. DISCUSSION

         A. The ...


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