Opinion
Case No. 21-cr-36 (NEB/DTS)
2021-04-05
UNITED STATES of America, Plaintiff, v. Dayton Charles SAUKE, Defendant.
Justin A. Wesley, DOJ-USAO, Minneapolis, MN, for Plaintiff. Andrew H. Mohring, Public Defender, Katherian D. Roe, Public Defender, Office of the Federal Defender, Minneapolis, MN, for Defendant.
Justin A. Wesley, DOJ-USAO, Minneapolis, MN, for Plaintiff.
Andrew H. Mohring, Public Defender, Katherian D. Roe, Public Defender, Office of the Federal Defender, Minneapolis, MN, for Defendant.
ORDER
DAVID T. SCHULTZ, U.S. Magistrate Judge
Defendant Dayton Charles Sauke moves the Court to order the suspension of an administrative forfeiture proceeding. Docket No. 38. The property identified in the administrative forfeiture proceeding is not the same property that is charged in the criminal indictment in the above-captioned case. Sauke asks the Court to suspend the administrative forfeiture proceeding for the duration of the criminal case. The Court finds it lacks the authority to provide the requested relief and therefore denies Sauke's motion.
FACTS
The Government alleges that Sauke sold a privately-made firearm to an undercover agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in the parking lot of a business in Faribault, Minnesota. Sara Thomas Affid. ¶ 12, Docket No. 1-1. Sauke was taken into custody after the sale. Id. ¶ 13. Law enforcement saw a short-barreled shotgun and box of shotgun ammunition on the rear floorboard of the vehicle Sauke drove to the parking lot. Id. ¶ 14. The vehicle was towed to the Faribault Police Department and searched pursuant to a federal search warrant. Id. ¶ 15. An ATF agent recovered the shotgun from Sauke's vehicle. Id.
The Government asserts that ATF agents also executed a search warrant at Sauke's home in Owatonna, Minnesota on January 15, 2021 where additional ammunition and firearms were found. Pl. Br. 1-2, Docket No. 41.
On February 11, 2021 Sauke was indicted on a charge of possessing an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Indictment, Docket No. 9. The charged firearm is the short-barreled shotgun the Government states was seized from Sauke's vehicle on January 15, 2021 pursuant to the federal search warrant. Thomas Affid. ¶¶ 14-15, Docket No. 1-1. The Forfeiture Allegations in the indictment seek forfeiture of any firearm involved in any violation of the National Firearms Act, including but not limited to the 12-gauge short-barreled shotgun seized from Sauke's vehicle. Indictment, Docket No. 9.
On March 2, 2021 ATF sent a written Notice of Seizure of Property and Initiation of Administrative Forfeiture Proceedings to Sauke. Notice at 1, Docket No. 38-1. The Notice states ATF seized (1) 22 rounds of assorted ammunition on January 15, 2021 in Faribault, Minnesota; and (2) a Sun City Machinery Co. Stevens 320 shotgun, serial number 172613A, a Ruger pistol, serial number 12-45050, and 116 rounds of assorted ammunition in Owatonna, Minnesota (collectively, the "Notice Property"). Id. at 3 (Asset List). The 12-gauge shotgun in the criminal indictment is not listed in the ATF administrative forfeiture notice. See id.
The Notice advises Sauke he has until April 6, 2021 to contest the forfeiture by asserting ownership or another interest in the seized property by filing a claim. Id. Section II at 2. It details the ways in which a claim may be filed and states that no attorney is required to file a claim, though a person may choose to hire an attorney to do so. Id. It states that a "timely claim stops the administrative forfeiture proceeding. The seizing agency forwards the timely claim to the U.S. Attorney's Office for further proceedings." Id. Section II.G. Sauke also received a Seized Asset Claim Form attached to the Notice. Def. Mtn. 1, Docket Nos. 38, 38-2 (form).
On March 23, 2021 Sauke filed this motion to suspend the administrative forfeiture proceeding for the Notice Property, asserting that filing a claim would "implicate the Fifth Amendment." Docket No. 38. The Government opposes the motion, asserting the Court has no jurisdiction to stay the administrative forfeiture proceeding. Docket No. 41.
ANALYSIS
An administrative forfeiture is a process by which property may be forfeited by a seizing agency such as ATF rather than through a judicial proceeding. 28 C.F.R. § 8.2. The seizing agency must provide notice to interested parties so that potential claimants may file a claim for the property. Id. §§ 8.8, 8.9; 18 U.S.C. § 983(a)(1) and (2). The claim must be filed by the deadline stated in the notice. 18 U.S.C. § 983(a)(2)(B) ; 28 C.F.R. § 8.10(a). A claim shall identify the specific property being claimed, state the claimant's interest in the property, and be made under oath by the claimant under penalty of perjury. 28 C.F.R. § 8.10(b). Upon receipt of a valid, timely claim the seizing agency shall either return the property or suspend the administrative forfeiture proceeding and transmit the claim to the U.S. Attorney to begin judicial forfeiture proceedings. Id. § 8.10(e).
Sauke has not (yet) filed a claim for the Notice Property; his deadline to do so is April 6, 2021. He seeks a stay of the ATF administrative forfeiture proceeding on the ground that any statements he may make as a claimant to the Notice Property — to identify the property and document his claim to it — "implicate the Fifth Amendment" because he is a criminal defendant in a federal prosecution in which the same agency, ATF, has "primary involvement in [the] investigation and prosecution." Mtn. 2, Docket No. 38. Sauke concedes the Notice Property does not appear to be directly involved in the charge for which he is being prosecuted, but contends that his possession of the Notice Property "may support other charges and sentencing enhancements." Id. He argues he "should not be required to choose between making statements against the interests protected by the Fifth Amendment during a pending criminal prosecution and forgoing a claim on property the ATF seeks to claim." Id.
Sauke asserts that the Court's authority to suspend the ATF administrative forfeiture proceeding "is recognized by 18 U.S.C. § 981" but he does not identify or discuss any specific provision of that statute, nor does he cite any case law or offer much analysis in his very short motion. The Court finds no provision in § 981 that authorizes it to stay an administrative forfeiture proceeding. The language in § 981(g) appears to apply only to judicial forfeiture proceedings, and it presupposes there is a "claimant" who has asserted a "claim" to the property. See United States v. Muhammed Momtaz Alazhari , No. 8:20-cr-206-T-60AEP, at 6 (M.D. Fla. Dec. 2, 2020) ("[T]he plain language of 18 U.S.C. § 981(g) reveals that the provision is not an avenue for a court to stay administrative forfeiture proceedings. Thus, the Court lacks jurisdiction to stay the administrative forfeiture proceedings."), aff'd (Jan. 7, 2021). The Court concludes it lacks the authority to stay ATF's administrative forfeiture proceeding and must deny Sauke's motion.
If Sauke files a valid, timely claim in the administrative forfeiture proceeding, the matter will end up in a judicial forfeiture proceeding (unless the Notice Property is returned to him), at which point either he or the Government would be able to seek a stay under § 981(g) if the appliable provisions in that subsection are satisfied. See, e.g., 18 U.S.C. § 981(g)(2).
The Government could have filed a civil judicial forfeiture action regarding the Notice Property rather than pursuing administrative forfeiture. See 18 U.S.C. § 983(a)(1)(A)(ii). However, the Government's right to choose which way to proceed is provided by statute and does not change the analysis here of whether the Court has authority to stay an administrative forfeiture proceeding.
Section 981(g)(2) provides: "Upon the motion of a claimant, the court shall stay the civil forfeiture proceeding with respect to that claimant if the court determines that (A) the claimant is the subject of a related criminal investigation or case; (B) the claimant has standing to assert a claim in the civil forfeiture proceeding; and (C) continuation of the forfeiture proceeding will burden the right of the claimant against self-incrimination in the related investigation or case." Additional provisions in subsection (g) also govern whether a stay may or must be ordered.
In addition, as the Government notes, Sauke may file a motion in limine seeking to exclude the use of administrative claim forms as evidence in his criminal trial; alternatively, he may seek a protective order. See United States v. Mendoza, 487 F.Supp.3d 1118, 1125 (D.N.M. 2020) (denying motion to stay administrative forfeiture proceeding but entering protective order regarding disclosure and use of the claim forms at trial). The criminal case against Sauke is in its early days, and the factual record before the Court is not very developed. Moreover, at this point Sauke is only a potential claimant to the Notice Property, which is not the same property that is charged in the criminal indictment. It is difficult at this stage to address with any particularity the potential Fifth Amendment implications, and indeed Sauke's motion only addresses them briefly and without much factual detail or analysis. His present motion seeks only a stay of the administrative forfeiture proceeding, which the Court is unable to order.
ORDER
The Court, being duly advised in the premises, upon all of the files, records and proceedings herein, now makes and enters the following Order.
IT IS HEREBY ORDERED that Sauke's motion to suspend the administrative forfeiture proceeding [Docket No. 38] is DENIED.