United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
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.
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.
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.
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
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.
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).
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.
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.
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.
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.
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.
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.
¶ 2 & Attachment A. The government ...