Spongetech Delivery Systems, Inc. (fka SPNGQ)

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08/01/2014 379 RESPONSE in Opposition re 377 MOTION to Amend/Correct Forfeiture Order And Shareholders' Claim To Forfeited Stock filed pursuant to Order entered on July 14, 2014 (Morris, Brian) (Entered: 08/01/2014)

Doc 379 PDF file
http://www.scribd.com/doc/236220109/USA-v-Metter-Et-Al-Doc-379-Filed-01Aug-14

Extract -

Re: United States v. Steven Moskowitz
Criminal Docket No. 10-600 (DLI)

Dear Judge Irizarry:

In accordance with the Court’s Order entered on July 14, 2014, the government respectfully writes in response to the motion by third-party petitioner Jay P. Booth seeking amendment of the order of forfeiture entered against defendant Steven Moskowitz in the above-referenced criminal forfeiture proceeding. See Motion To Amend Order of Forfeiture, Dkt. #377; Preliminary Order of Forfeiture, Dkt. #366. For reasons discussed below, the petition should be dismissed because the Court lacks subject matter jurisdiction to hear the petitioner’s claim in an ancillary proceeding, the petitioner lacks standing to advance his claim, and the petition is time barred.

[...]

B. The Petitioner Lacks Standing To Contest Forfeiture of the Forfeited Stock The petitioner lacks standing because his petition failed to assert an interest in the Forfeited Stock and the petition is not signed under penalty of perjury. As required by statute and the terms of the Preliminary Order itself, the petition must be signed under penalty of perjury and specifically allege the “nature and extent of the petitioner’s right, title, or interest in the property [and] the time and circumstances of the petitioner’s acquisition of the right, title or interest in the property.” 21 U.S.C. § 853(n)(3); Preliminary Order, at ¶ 10. The petition meets none of these requirements. First, as discussed above, the petitioner has failed to allege an interest in the Forfeited Stock. In addition, the petition was not signed by the petitioner or otherwise verified under penalty of perjury. As these deficiencies are fatal to the petitioner’s claim, the petition should be dismissed for lack of standing. United States v. Ginn, 799 F. Supp. 2d 645, 647 (E.D. La. 2010) (holding that to discourage false claims even pro se petition must be dismissed if not filed under penalty of perjury); United States v. King, No. 3:06-cr-212-J-33MCR, 2009 WL 2525560, at *2 (M.D. Fla. Aug. 17, 2009) (dismissing petition that was not filed under penalty of perjury and did not contain description of petitioner’s legal interest in forfeited property or how it was acquired).

C. The Petition Is Time Barred

Consistent with the governing statute, the Preliminary Order directed that any potential claimant to the Forfeited Stock file his petition “within thirty (30) days of the final publication of notice . . . or no later than sixty (60) days after the first date of publication, whichever is earlier.” Preliminary Order, at ¶ 10; 21 U.S.C. § 853(n)(2). In the present case, publication of the Preliminary Order began on April 16, 2014 and ended on May 15, 2014. See Certificate of Service, Dkt. #371. Thus, the time for filing a third-party petition expired on June 15, 2014. The petitioner’s claim, however, was not filed until June 18, 2014. Because petitioner did not submit his claim within the statutorily proscribed time period, it is time barred and therefore should be dismissed as untimely. United States v. Alvarez, 710 F.3d 565, 567-68 nn.10 & 11 (5th Cir. 2013) (upholding dismissal of untimely claim filed on 74th day); United States v. Marion, 562 F.3d 1330, 1339-40 (11th Cir. 2009) (holding that because Section 853(n)(2) creates 30-day window for third parties to file claims, claims not filed within that window must be dismissed as untimely); United States v. Grossman, 501 F.3d 846, 848-49 (7th Cir. 2007) (upholding dismissal of untimely claim filed by lienholder).

III. Conclusion

For the reasons discussed above, the government respectfully requests that the Court dismiss the petition, and enter the enclosed Final Order of Forfeiture at the defendant’s sentencing. Of course, the petitioner remains free to submit an affidavit of loss to the government so that he may potentially be included as part of any order of restitution entered against the defendant or co-defendant Andrew Tepfer, who is presently scheduled to be sentencing on November 7, 2014. In this regard, the petitioner should direct any questions about filing an affidavit of loss to Victim Coordinator Lisa Foster, who may be reached at [phone].

Respectfully submitted,
LORETTA E. LYNCH
United States Attorney
By: /s
Brian D. Morris
Nathan D. Reilly
Assistant U.S. Attorneys
[phone]/6196