United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE
claimant Jeanine M. Jackson objects to the Report and
Recommendation issued by the Magistrate Judge on November 18,
2016 (Docket No. 221). The Magistrate Judge recommended that
Jackson's motion for return of seized property pursuant
to Federal Rule of Criminal Procedure 41(g) (Docket No. 199)
be denied. The Court assumes familiarity with the factual
background discussed at length in the Report and
Recommendation. See Docket No. 221.
property at issue, a 2006 Land Rover Range Rover vehicle, was
seized by the Drug Enforcement Administration
(“DEA”) on January 24, 2012. Upon receiving a
notice of administrative forfeiture, see 18 U.S.C.
§ 983(a)(1)(A)(i), Jackson twice attempted to file a
sworn claim of ownership with the DEA, see id.
§ 983(a)(2)(A). A valid administrative claim would have
required the government to, within ninety days, either file a
complaint for forfeiture in the district court or release the
property. Id. at § 983(a)(3)(A)-(B). However,
the DEA rejected both of Jackson's submissions as invalid
on the basis that her claim was not “made under oath,
subject to penalty of perjury.” Id. at §
983(a)(2)(C)(iii). The DEA also stated that it was not clear
whether she was filing a claim or a petition for remission or
mitigation. Receiving no further submission from Jackson, the
government filed a declaration of forfeiture on May 25, 2012.
have jurisdiction to entertain collateral due process attacks
on administrative forfeitures.” United States v.
Giraldo, 45 F.3d 509, 511 (1st Cir. 1995) (per curiam);
see also Gonzalez-Gonzalez v. United States, 257
F.3d 31, 35 (1st Cir. 2001). “[S]uch challenges may be
pursued in a civil action under 28 U.S.C. § 1331.”
Giraldo, 45 F.3d at 511. “The fact that [the
movant] termed [her] motion as one under Rule 41(e) [now Rule
41(g)] does not defeat the district court's
jurisdiction.” Id. The Court construes
Jackson's motion as a due process challenge to the
administrative forfeiture proceedings. Due process requires
the government to “afford notice sensibly calculated to
inform the interested party of the contemplated forfeiture
and to offer him a fair chance to present his claim of
entitlement.” Gonzalez-Gonzalez v. United
States, 257 F.3d at 36. “The touchstone is
reasonableness . . . .” Id.
question is whether the government deprived Jackson of a
“fair chance” to present her claim by rejecting
her submission as invalid. Under 18 U.S.C. §
983(a)(2)(C), Jackson's submission was required to:
“(i) identify the specific property being claimed; (ii)
state the claimant's interest in such property; and (iii)
be made under oath, subject to penalty of perjury.” The
government argues that her submissions failed to meet the
third requirement because they were not made under penalty of
the federal perjury statute, there are two ways for a
statement to be made under penalty of perjury. 18 U.S.C.
§ 1621. First, the person making the statement can
“take an oath before a competent tribunal . . . that
any written testimony . . . is true.” Id. at
§ 1621(1). Second, the person making the statement can
sign a statement that states, “in substantially the
following form . . . ‘I declare (or certify, verify, or
state) under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct.
Executed on (date). (Signature).'” See id.
at § 1621(2) (citing 28 U.S.C. § 1746).
particular formalities are required for there to be a valid
oath. It is sufficient that, in the presence of a person
authorized to administer an oath, as was the notary herein,
the affiant by an unequivocal act consciously takes on
himself the obligation of an oath, and the person undertaking
the oath understood that what was done is proper for the
administration of the oath and all that is necessary to
complete the act of swearing.” United States v.
Yoshida, 727 F.2d 822, 823 (9th Cir. 1983); see also
United States v. Burge, 711 F.3d 803, 810 n.2 (7th Cir.
2013) (concluding that evidence that “the notary showed
him the document containing the oath, directed his attention
to the oath, and then asked him to confirm that it was
correct” was sufficient for finding that defendant was
first submission began with the statement: “kindly
accept this notice as my official request to claim my
property.” Docket No. 207-1 at 25. Jackson then
identified the vehicle at issue and stated that she was the
vehicle owner. Below her signature and above the notary's
signature was a line that stated: “Sworn to before me
this 23 day of February 2012.”
court of appeals has found such language by itself sufficient
to support a perjury conviction. United States v.
Johnson, 25 F. App'x 231, 238 (6th Cir. 2001)
(unpublished) (holding that a jury could have concluded that
an affidavit was made under oath, even in the absence of
language in the body of the document that the affiant had
been duly sworn, based on jurat signed by notary that stated:
“Sworn to and subscribed before me this 25th day of
courts have found statements to be validly sworn given a
similar lack of formalities. In United States v.
Yoshida, a perjury conviction was upheld because the
defendant had testified that the notary public who witnessed
the signature asked him if the contents of the affidavit were
true, and he answered in the affirmative; the jurat had
stated “Subscribed and sworn to before me . . .”;
and the body of the affidavit had begun with the words,
“DENNIS YOSHIDA, being first duly sworn, on oath,
deposes and says.” 727 F.2d at 823.
United States v. $89, 600 in U.S. Currency, a
statement was found to be made under penalty of perjury where
the body of the statement included language that claimant was
“duly sworn and deposed” and the notary's
jurat began “[s]worn to and subscribed before
me.” 2011 WL 4549604, at *2 (S.D. Ga. Sept. 29, 2011).
Chrzaszcz v. United States, the court found that an
affidavit was made under penalty of perjury where the body of
the affidavit stated that it was made “after being duly
sworn” and the notary indicated that the affidavit was
“Sworn to and Subscribed to before me.” No. CR
09-1381-PHX-JAT, 2015 WL 2193713, at *7 (D. Ariz. May 11,
sure, some cases do contain more extensive language
concerning the taking of an oath. See, e.g.,
Calash v. DEA, 2009 WL 87596, at *1 (S.D. Fla. Jan.
12, 2009) (holding that a statement was found to be made
under penalty of perjury where the statement included
language that “I, MICHAEL J. CALASH . . . hereby swear
and affirm that the facts contained herein are true and
correct. Michael J. Calash” followed by language that
“BEFORE ME, the undersigned authority, personally
appeared MICHAEL J. CALASH . . . who first being duly sworn,
deposes and says that . . . the facts contained therein are
true and correct. SWORN TO AND SUBSCRIBED BEFORE ME this 7th
day of April 2008. [Notary Public]”).
when taking into consideration that Jackson was filing pro
se, the Court concludes that Jackson's first submission
contained language sufficient to meet the statutory
requirement of being made under penalty of perjury. Moreover,
the language in that submission that it was “my
official request to claim my property”
(emphasis added) was a crystal clear statement that Jackson
was making a “claim” rather than a petition for
“remission” or “mitigation.” See
United States v. U.S. Currency in the Amount of $2,
857.00, 754 F.2d 208, 214 (7th Cir. 1985) (“A
petition for remission or mitigation of forfeiture . . .
gives the Attorney General . . . discretion to ameliorate the
harshness of forfeiture statutes in appropriate