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United States v. Marcel

November 24, 2008

UNITED STATES, PLAINTIFF
v.
FRANCISCO MARCEL, DEFENDANT



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court

(Chief Judge Kane)

MEMORANDUM

Francisco Marcel, proceeding pro se, filed the instant motion seeking the return of $57,537.70 forfeited to the United States through an in rem civil proceeding. (Doc. No. 829.) The motion is fully briefed and ripe for disposition. For the reasons that follow, the motion will be granted in part and denied in part.

I. BACKGROUND

On March 17, 2004, the Government filed a nineteen-count indictment charging Francisco Marcel, Sr., and twelve other defendants with drug trafficking and various related offenses. (Doc. No. 1.) The Government filed a superceding indictment on May 26, 2004 (Doc. No. 218), and a second superceding indictment on July 21, 2004 (Doc. No. 297). The second superceding indictment, like those before it, contained a forfeiture count concerning real property at 1450 NW 129th Avenue, Sunrise, Florida ("Florida property"), of which Marcel was the owner of record, and approximately $500,000 in United States currency. (Doc. No. 1 at 29--31; Doc. No. 218 at 29--31; Doc. No. 297 at 29--31.) As a basis for the forfeiture count, the Government alleged that Marcel had obtained both the Florida property and currency with the direct or indirect proceeds of the aforementioned offenses and that Marcel had used, or had intended to use, the Florida property and the currency to commit or facilitate those offenses. (Doc. No. 218 at 29.)

Approximately three weeks after the filing of the original indictment, Marcel gave his wife Ana Marcel power of attorney to negotiate and enter into a contract on his behalf for the sale of the Florida property. (Doc. No. 845-2 at 27.) With a buyer in hand, Philip Rosen, the attorney representing the Marcels in the sale, contacted Assistant United States Attorney James Clancy, lead counsel for the Government, and alerted him to the impending sale. (Doc. No. 845-2 at 28.) Pursuant to an "agreement" with Clancy-the particulars of which are neither obvious nor well substantiated-Rosen promised to distribute $2,000 of the proceeds at closing to Ana Marcel and place the balance of the proceeds in an escrow account where the funds were to remain "until such time as he received instruction from Francisco and Ana Marcel and the United States Attorney's Office or by Court Order to release said funds." (Id.; see also Doc. No. 829 at 3.) At the closing on May 7, 2004, Rosen made the promised distribution to Ana Marcel and deposited $57,537.70, the balance of the proceeds, in an escrow account. (Id.)

In September 2005, Marcel appeared before the Court and pled no contest to a one-count information charging him with the use of an interstate communication facility to engage in a conspiracy to distribute 100 grams or more of heroin in violation of 21 U.S.C. §§ 843(b) and 846. (Doc. Nos. 725, 728; see also Doc. No. 816 at 12.) At the hearing, the Government briefly described the range of punishments that could result from Marcel's plea:

[S]ince there was not a plea agreement, because the Government cannot enter into one in a no contest plea situation, I just want to make sure that the record reflects-and if I missed this, I apologize-that by entering even a plea of no contest, Mr. Marcel subjects himself to the possible maximum statutory punishment for use of a communication facility involving drug trafficking. And in this case, that is four years of confinement, a $250,000 fine, I believe two years of supervised release, a special assessment of $100, and the loss of certain federal benefits. (Doc. No. 727 at 23.) Neither Marcel nor the Government made any mention of the forfeiture count or the possibility of future forfeiture proceedings. (See generally Doc. No. 727.)

On January 27, 2006, the Government filed a civil complaint for forfeiture against the $57,537.70 in the escrow account. (See United States v. $57,537.70 in United States Currency, Civ. No. 06-00218, Doc. No. 1 (M.D. Pa. Jan. 27, 2006).) Pursuant to a warrant of arrest in rem issued by this Court, any persons claiming an interest in, or a right against, the defendant currency were required to file a verified statement of interest or right with the Clerk of Court no later than thirty days after the date of service of the complaint or the final date on which legal notice was published. (See United States v. $57,537.70 in United States Currency, Civ. No. 06-00218, Doc. No. 4 (M.D. Pa. Jan. 27, 2006).) The Government personally served Ana Marcel with the forfeiture complaint, a summons, a warrant of arrest in rem, and legal notice on February 23, 2006 at an apartment in Camp Hill, Pennsylvania (See United States v. $57,537.70 in United States Currency, Civ. No. 06-00218, Doc. No. 7 at 12--13 (M.D. Pa. Feb. 27, 2006)), and, the following week, personally served Courtney Waltz, legal assistant to William Fulton, one of Marcel's three attorneys in the criminal proceedings, with the forfeiture complaint, the warrant of arrest in rem, and legal notice,*fn1 (See United States v. $57,537.70 in United States Currency, Civ. No. 06-00218, Doc. No. 8 (M.D. Pa. Mar. 6, 2006)). Lastly, the Government published legal notice of the forfeiture proceedings in a Harrisburg, Pennsylvania, newspaper on March 17, March 24, and March 31, 2006. (See United States v. $57,537.70 in United States Currency, Civ. No. 06-00218, Doc. No. 10 (M.D. Pa. Apr. 7, 2006).)

Responding to the warrant of arrest, Rosen remitted the $57,537.70 in the escrow account to the Department of Justice on March 28, 2006.*fn2 (Doc. No. 845-2 at 28.) No statement of interest or right having been filed, the Government filed a request for entry of default with the Clerk of Court (See United States v. $57,537.70 in United States Currency, Civ. No. 06-00218, Doc. No. 11 (M.D. Pa. May 15, 2006)), which the Clerk obliged on May 16, 2006 (See United States v. $57,537.70 in United States Currency, Civ. No. 06-00218, Doc. No. 12 (M.D. Pa. May 16, 2006)).

Just six days later, on May 22, 2006, the Court held a sentencing hearing in Marcel's still-pending criminal proceedings. (Doc. No. 817.) At the hearing, the Government made, and the Court granted, a motion "to dismiss the original indictment and the superseding indictments as they pertain[ed] to Mr. Marcel." (Id. at 14.) Accordingly, in a judgment rendered May 26, 2006, the Court dismissed "[a]ll counts . . . in the previously filed indictments," including the forfeiture counts (Doc. No. 802 at 1), and sentenced Marcel to an imprisonment of four years followed by one year of supervised release (Id. at 2--7). The Federal Bureau of Prisons subsequently designated Marcel to McRae Correctional Institution ("McRae") in McRae, Georgia. (Doc. No. 812.)

The Court issued a final order of forfeiture with respect to the $57,537.70 on May 25, 2006. (See United States v. $57,537.70 in United States Currency, Civ. No. 06-00218, Doc. No. 14 (M.D. Pa. May 25, 2006).) On February 8, 2007, Marcel filed the instant motion for return of property. (Doc. No. 829.) After requesting and receiving three extensions of the deadline for filing a responsive brief (Doc. Nos. 840, 842, 844), the Government timely filed a brief in opposition to Marcel's motion on May 29, 2007 (Doc. No. 845).

II. DISCUSSION

Marcel now moves the Court an order directing the Government to return the seized currency, arguing that the Government failed to provide him with adequate notice of the forfeiture action and an opportunity to voice his objections. (Doc. No. 829 at 2.) Marcel further contends that the Court dismissed the forfeiture counts in the original and superseding indictments and that "[n]owhere in the docket is [it] mentioned or [did it] proceed before the Court that [forfeiting his] house w[ould] be part of his punishment." (Id.) Marcel alleges that he first learned of the forfeiture during a telephone conversation with his wife, who mailed a copy of the legal notice to him at McRea in November 2006, well after the Court had issued the final order of forfeiture. (Id. at 4.) Marcel further explains that he really did not know what to do until a freind [sic] of [his] in prison voluntarily offer[ed] his help. Also with the help of the law library clerk who is not well versed in the law but has tried as good as he could to explain to the court that injustice and attempt of intimidation have taken place in this particular case. (Id.) Finally, Marcel describes a jailhouse visit from Daniel Pell, another of Marcel's attorneys in the criminal proceedings, during which Pell tried to convince [him] in signing [sic] a paper for the release of the money by telling [him] that the Federal Government is going to arrest [his] wife for ...


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