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United States v. Venson

United States District Court, N.D. Illinois, Eastern Division

April 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CRAIG VENSON, Defendant.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY United States District Judge.

         Craig Venson was charged along with multiple co-defendants for participating in a drug trafficking conspiracy, and he eventually pleaded guilty. During its investigation, the government seized property and money belonging to Venson, including $10, 005 from his safe deposit box and $3, 857.45 from his residence. The government failed to seek forfeiture of these funds at the time of Venson's sentencing. It later obtained a forfeiture order against one of Venson's co-defendants and applied the funds seized from Venson to the co-defendant's judgment. Venson now argues that the government seized his money without due process of law and moves for the property's return under Federal Rule of Criminal Procedure 41(g). For the reasons stated below, the Court denies Venson's motion.

         Background

         In 2005, Venson was charged with narcotics offenses relating to his involvement in a drug trafficking operation. The charges included possession with intent to distribute and distribution of cocaine and heroin, as well as conspiracy. The government brought similar charges against seventeen alleged co-conspirators, including April Hartline. The indictment identified $32, 500 of drug distribution proceeds as property subject to forfeiture, including $10, 005 held by Venson in a safe deposit box and $3, 857.45 that the FBI had seized from Venson's residence.

         In November 2007, Hartline entered into a plea agreement, in which she agreed to an entry of judgment of forfeiture "relinquish[ing] any right, title, or interest she has" in the seized money and property. Hartline Plea Agr., Case No. 05 CR 980, dkt. no. 277, ¶ 19. In 2008, Venson entered a blind plea of guilty to eighteen of the twenty-four counts against him. Venson Plea Decl., Case No. 05 CR 980, dkt. no. 366, ¶ 3. In conjunction with his guilty plea, Venson filed a "plea declaration" that made no mention of forfeiture. In December 2008, Judge Blanche Manning sentenced Venson to 262 months in prison. The government did not move for forfeiture in connection with Venson's sentencing, and the judgment entered by Judge Manning did not include any reference to forfeiture.

         Ten days after Venson's sentencing hearing, the government moved to enter a preliminary order of forfeiture against Venson. The government sought forfeiture of Venson's interest in various items, including funds seized during the investigation. Specifically, the government sought forfeiture of Venson's interest in the $10, 005 seized from his safe deposit box and the $3, 857.45 seized from his residence. Federal Rule of Criminal Procedure 32.2(b), however, requires entry of a preliminary order of forfeiture prior to sentencing in order to permit the parties to suggest modifications before the order becomes final. Fed. R. Crim. P. 32.2(b)(2)(B). Realizing that it had filed the motion too late, the government withdrew the forfeiture motion in March 2009.

         At Hartline's sentencing in August 2009, the government moved for a preliminary order of forfeiture of Hartline's interest in the seized funds. Hartline Judg., Case No. 05 CR 980, dkt. no. 564. Judge Manning included a preliminary forfeiture order in Hartline's judgment as required under Rule 32.2(b)(4)(B). Id. The preliminary forfeiture order stated that seized funds in the amount of $13, 862.45 would be applied to Hartline's forfeiture judgment. A final order of forfeiture was entered in June 2011. The final order stated that the interests of Hartline "and any other third party" in the seized funds were forfeited to the United States. Hartline Forf. Order, Case No. 05 CR 980, dkt. no. 564.

         In August 2015, Venson filed the present motion for return of the $13, 862.45 the government applied to Hartline's judgment. Venson alleges that he retained an interest in this property, that he never received notice of the forfeiture, and that the steps taken by the government to notify him were constitutionally inadequate. The government contends that the final order of forfeiture in Hartline's case terminated Venson's interest in the money. It argues that the procedures that it followed before obtaining the final order in Hartline's case were sufficient to put Venson on notice that his interest in the money was at stake and to give him an opportunity to object (which Venson did not do).

         The government has provided the following evidence of its attempt to notify Venson of the forfeiture. Dorothy Cuadra, a paralegal specialist with the United States Attorney's Office, says that on March 18, 2011 she sent a package to the United States Marshals Service (USMS) directing the USMS to provide Venson notice of the preliminary order of forfeiture in Hartline's case. Government's Suppl. Mem. Addressing Evidentiary Issues Regarding Service of Process, Ex. A (Cuadra Aff.) ¶¶ 1, 4. The package included instructions to notify the following individuals of the forfeiture: Nikea Venson; Fred Morelli Jr., Venson's attorney until sometime in 2006; Richard H. Parsons at the Central District of Illinois Federal Defender's office, who had represented Venson in his appeal, which had concluded over a year earlier, in February 2010; Hartline's attorney Roger H. Dusberger; and Venson at the federal prison in Greenville where he is serving his sentence. See id., Attachment A. The package included copies of the notice of forfeiture and the preliminary order of forfeiture in Hartline's case to be sent to each recipient. Id. ¶¶ 5-6.

         The notice of forfeiture that the government sent to these persons states that "in the case of U.S. v. April Hartline, et al., Court Case Number 05 CR 980-5, " the court entered an order condemning the following property: "10, 005.00 United States Currency . . . seized from Craig L. Venson on December 15, 2005 at Old Second National Bank, Safety Deposit Box Number 98" and "$3, 857.45 United States Currency . . . seized from Nikea Venson on December 07, 2005." Id., Attachment C. The notice states that the "United States hereby gives notice of its intent to dispose of the forfeited property in such manner as the United States Attorney General may direct." Id. It further indicates that "[a]ny person, other than the defendant(s) in this case, claiming interest in the forfeited property must file a petition within 60 days" of March 16, 2011. Id.

         The process receipt and return for the copy that the USMS allegedly sent to Venson indicates that it was sent via certified mail and includes the receipt number 7009 0820 0002 0674 0676. Id., Attachment B. Cuadra also states that notice of the forfeiture was posted on www.forfeiture.gov from March 16, 2011 until April 14, 2011. Government's Suppl. Resp. to Movant Craig Venson's Mot. for Return of Property, Ex. 12.

         The government also offers the declaration of Cynthia Villarruel, the district asset forfeiture coordinator for the USMS. In her declaration, Villarruel describes in general the notification process at the USMS. See Government's Suppl. Mem. Addressing Evidentiary Issues Regarding Service of Process, Ex. B (Villarruel Decl.). Villarruel states that the United States Attorney's Office typically includes copies of Form USM 285 in the package sent to the USMS. Id. ¶ 4. The top half of the form lists the addresses of the intended recipients, and the bottom half leaves space for the USMS personnel to indicate how the notice was served. Id. ¶ 5. Villarruel reviewed the USMS's copy of this form for the forfeiture notice at issue here and determined that Jessica Smith-Crenshaw, a contractor who no longer works for the USMS, mailed the package to Venson. Id. at ¶ 8. Villarruel states that Smith-Crenshaw likely wrote the note on the form indicating that the package was sent via certified mail and the corresponding receipt number. The form indicates that the package was sent to Venson on March 24, 2011, and the receipt indicates that someone at FCI Greenville signed for the package on the same day. See id.; see also id., Attachment A.

         The government also offers the declaration of Carrie Rodgers, a supervisory correctional systems specialist at FCI Greenville. Rodgers states that the signature on the certified mail receipt belongs to Angelo Gutierrez, a former correctional systems officer at Greenville. Government's Suppl. Mem. Addressing Evidentiary Issues Regarding Service of Process, Ex. C (Rodgers Decl.) ¶ 3. Gutierrez worked at the Greenville prison for 23 years until his retirement in March 2015. Id. Rodgers states that she worked with Gutierrez for seven years, both as his co-worker and as his supervisor, and recognizes the signature on the form as his. Id. She also describes the standard procedures for mail distribution at FCI Greenville. Rodgers indicates that after an employee, such as Gutierrez, signs for a package, the package is sorted into a pile of inmate mail. Id. ¶ 5. Inmate mail is later sorted by housing unit and each piece of certified mail is recorded in a log. Id. An employee tasked with delivering the mail logs out the certified mail, and the inmate recipient signs another copy of the log when the mail is delivered to him. Id. The government has also offered a copy of the mail log from March 25, 2011, which indicates that Venson signed for a certified mail package with the receipt number 7009 0820 0002 0674 0676. Government's Suppl. to Its Suppl. Mem. Addressing Evidentiary Issues Regarding Service of Process, Ex. A (Rodgers Decl.), Attachment A.

         Finally, the government offers the affidavit of Patty Jo Stewart, a supervisory legal administrative specialist at the United States Attorney's Office. Stewart states that she would have been the person who prepared the electronic notice of the government's motion for final order of forfeiture that was filed via the court's ECF system on May 19, 2011. Government's Suppl. Mem. Addressing Evidentiary Issues Regarding Service of Process, Ex. D (Stewart Aff.) ¶ 2. Stewart further states that she would have mailed the motion to the individuals listed on the notice of motion, which in this case are Morelli and Venson. Id. ΒΆ 2 & Attachment A. The government ...


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