                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-4-2007

USA v. $487,825.00 US Curr
Precedential or Non-Precedential: Precedential

Docket No. 06-3138




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 06-3138


              UNITED STATES OF AMERICA

                              v.

       $487,825.00 IN UNITED STATES CURRENCY

                   *DAVID AGUASVIVA,

                                               Appellant

              *(Pursuant to Rule 12(a), F.R.A.P.)


        On Appeal from the United States District Court
                for the District of New Jersey
                (D.C. Civil No. 05-cv-02841)
             District Judge: Hon. Jose L. Linares


       Submitted Pursuant to Third Circuit LAR 34.1(a)
                       April 12, 2007

       BEFORE: SMITH and COWEN, Circuit Judges
              and YOHN*, District Judge

                     (Filed May 4, 2007)


*Honorable William H. Yohn Jr., Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.


                               1
Ramon A. Pagan, Esq.
Law Offices of Ramon W. Pagan
2116 Williamsbridge Road
Bronx, NY 10461

Counsel for Appellant David Aguasviva

Jafer Aftab, Esq.
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Counsel for Appellee United States of America



                           OPINION


COWEN, Circuit Judge.

       This forfeiture proceeding concerns $487,825 that the
government seized from David Aguasviva. The District Court
entered a default judgment for the government, and Aguasviva
appeals. We will affirm.

                               I.

       During a traffic stop of Aguasviva, officers of the
Palisades Parkway Interstate Police in New Jersey discovered
$487,825 in United States currency in Aguasviva’s vehicle. An
ion test was conducted on the currency, which indicated that it
had been around large quantities of cocaine.1

      On February 7, 2005, the government commenced an
administrative forfeiture proceeding against the currency. The
government terminated that proceeding upon receiving a claim


      1
        Aguasviva disputes this point, and it is stated here for
purposes of background only.

                               2
form from Aguasviva, and soon thereafter began a civil
forfeiture proceeding. On June 2, 2005, the government filed a
verified complaint for forfeiture in rem and a warrant for arrest
in rem, and on June 21, 2005, mailed the complaint and warrant
to Aguasviva, through his attorney. The warrant specifically
informed Aguasviva that pursuant to Rule C(6)(a) of the
Supplemental Rules for Certain Admiralty and Maritime Claims,
Federal Rules of Civil Procedure (“Rule C(6)(a)”), he was
required to file a verified statement of interest within 30 days if
he desired to intervene in the forfeiture proceeding. Thus,
Aguasviva had until approximately July 21, 2005, to file a
verified statement of interest.

        The government received no response from Aguasviva,
and on September 23, 2005, filed a motion for the entry of
default judgment. On October 19, 2005, Aguasviva filed what
he labeled a “notice of claim and verified answer.” On the same
day, his attorney filed an affirmation that argued that the motion
for default judgment should be denied because Aguasviva’s
possession of the money was related to his legitimate business
activities.

        The District Court ultimately granted a default judgment
to the government, and Aguasviva now appeals.2

                                II.

       Aguasviva argues that the District Court erred in granting
a default judgment to the government because his late filings did
not prejudice the government, he did not engage in culpable
conduct, and he possesses a litigable defense. However, as the
District Court concluded, Aguasviva failed to comply with the


       2
         We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the District Court’s entry of a default judgment for an abuse
of discretion, United States v. $55,518.05 in U.S. Currency, 728
F.2d 192, 195 (3d Cir. 1984), and we exercise plenary review over
the legal question of whether Aguasviva has standing to contest the
forfeiture, United States v. Contents of Accounts Nos. 3034504504
& 144-07143, 971 F.2d 974, 984 (3d Cir. 1992).

                                 3
procedural strictures of Rule C(6)(a) and 18 U.S.C. §
983(a)(4)(A), and thus lacks statutory standing to intervene in
the forfeiture proceeding.

        In order to stand before a court and contest a forfeiture, a
claimant must meet both Article III and statutory standing
requirements. United States v. $8,221,877.16 in U.S. Currency,
330 F.3d 141, 150 n.9 (3d Cir. 2003). To establish statutory
standing in a forfeiture case, the claimant must comply with the
procedural requirements set forth in Rule C(6)(a) and §
983(a)(4)(A). Contents of Accounts Nos. 3034504504 &
144-07143, 971 F.2d at 984. The most significant requirement is
that the claimant must timely file a verified statement of interest,
as required by Rule C(6)(a). See $8,221,877.16 in U.S.
Currency, 330 F.3d at 150 n.9. The verified statement must
“describe the [claimant’s] interest in the property.” Rule
C(6)(a)(ii).

        The requirement that the claimant file a timely verified
statement serves two purposes. First, it forces claimants “to
come forward as quickly as possible after the initiation of
forfeiture proceedings, so that the court may hear all interested
parties and resolve the dispute without delay.” $8,221,877.16 in
U.S. Currency, 330 F.3d at 150 n.9 (internal quotation marks
omitted). Second, it “minimize[s] the danger of false claims by
requiring claims to be verified or solemnly affirmed.” Id. For
these reasons, the requirement “is no mere procedural
technicality.” United States v. $23,000 in U.S. Currency, 356
F.3d 157, 163 (1st Cir. 2004); see also United States v.
Commodity Account No. 549 54930, 219 F.3d 595, 597 (7th Cir.
2000) (“[V]erification is an essential element of any claim
because of the substantial danger of false claims.” (internal
quotation marks omitted)). A claimant who fails to file a
verified statement has no standing to contest a forfeiture. See
$8,221,877.16 in U.S. Currency, 330 F.3d at 150 n.9; see
also United States v. 8136 S. Dobson Street, 125 F.3d 1076,
1072 (7th Cir. 1997) (“If no claim is filed, a putative claimant
lacks standing to contest a forfeiture.” (internal quotation marks
omitted)). Courts have repeatedly emphasized that forfeiture
claimants must strictly adhere to the filing requirements to
perfect standing. See, e.g., United States v. One-Sixth Share Of

                                 4
James J. Bulger In All Present & Future of Mass Millions
Lottery Ticket No. M246233, 326 F.3d 36, 41-42 (1st Cir. 2003)
(claimant’s failure to file timely claim sufficient to disqualify
him from intervening); United States v. Real Property, 135 F.3d
1312, 1316-17 (9th Cir. 1998) (collecting cases where courts
“conditioned a person’s standing to contest forfeiture or
garnishment actions on strict compliance with filing
requirements”).

        Here, Aguasviva did not file a verified statement, timely
or not. His only filing in the civil forfeiture proceeding occurred
on October 19, 2005 – well more than 30 days after the
government served its complaint – when he filed what he titled a
“notice of claim and verified answer.” The careful labeling of
the document makes it evident that if this document contains a
claim, the claim was not verified. Further, despite the label’s
reference to a claim, the document contains no description of
Aguasviva’s interest in the property, which Rule C(6)(a) requires
of verified statements. Instead, the document merely denies the
allegations made by the government in its complaint. Thus,
there is no question that this document is not a verified
statement.

       Nor does the affirmation filed by Aguasviva’s attorney
qualify as a verified statement. Most simply, the affirmation
does not purport to serve as a verified statement. It presents,
instead of a description of Aguasviva’s interest in the property,
legal argument in opposition to the government’s motion for a
default judgment.3 Further, while an attorney may file a verified
statement for a client, the attorney “must state the authority to


       3
         The content of the affirmation caused the District Court to
strike it pursuant to District of New Jersey Local Rule 7.2(a),
which states that affidavits are restricted to statements of fact and
may not contain argument of facts and law. The affirmation here
contains almost entirely argument: it sets forth the applicable
standard for entering a default judgment, and argues that that
standard was not met. Thus, the District Court acted within its
discretion in striking the affirmation, and the affirmation could not
serve as a verified statement.

                                 5
file a statement of right or interest on behalf of another.” Rule
C(6)(a)(iii). The affirmation contains no such statement.4

       Because of the important interests served by requiring a
verified statement, district courts are entitled to insist upon
procedural regularity. Here, Aguasviva altogether failed to file a
verified statement. Accordingly, it was within the Court’s
discretion to enter default judgment for the government.

                                III.

       For the foregoing reasons, the judgment of the District
Court entered on May 25, 2006, will be affirmed.




       4
         Even if the affirmation could overcome all of the obstacles
discussed here and qualify as a verified statement, it was still not
filed timely.

                                 6
