United States District Court, W.D. Arkansas, Fayetteville Division
OPINION & ORDER
Timothy L. Brooks Judge.
before the Court is the Motion to Strike (Doc. 30) filed by
the Government on June 16, 2017. The Motion asks the Court to
strike two documents filed by Angelica Maria
Avendano-Gonzalez, each styled "Petition for Remission
or Mitigation of a Criminal Forfeiture Action." (Docs.
27, 28). For the reasons discussed below, the
Government's Motion to Strike (Doc. 30) is DENIED.
jury returned an Indictment (Doc. 6) on December 2, 2016,
charging Defendant Oscar David Zuniga-Chavez with one count
of conspiracy to distribute methamphetamine. The Indictment
also contains a forfeiture allegation, which includes in
relevant part a 2008 Mercedes Benz and a 2003 Ford Mustang.
Zuniga-Chavez pleaded guilty on March 29, 2017, and on that
same date the Court entered a Preliminary Order of Forfeiture
(Doc. 25) which listed both vehicles. On May 8, 2017, the
Government filed a Proof of Publication (Doc. 26) showing
that it had published a notice of forfeiture from April 8,
2017 to May 7, 2017. Finally, Avendano-Gonzalez filed both
Petitions in question on June 5, 2017. The Petitions assert
that Avendano-Gonzalez has title to both vehicles, and
purchased each vehicle prior to beginning her relationship
Government asks the Court to strike both Petitions from the
record. It explains that the "remission or mitigation
process is governed by" 28 C.F.R. § 9, et
seq., and that pursuant to those regulations, petitions
for remission or mitigation must be filed with the U.S.
Attorney's office and decided by the Criminal Division of
the Department of Justice. (Doc. 30, p. 2); see also
28 C.F.R. § 9.1(b)(2) ("Remission and mitigation
functions in judicial cases are performed by the Criminal
Division of the Department of Justice."); 28 C.F.R.
§ 9.4(e) ("A petition for remission or mitigation
of a judicial forfeiture shall be addressed to the Attorney
General... and shall be submitted to the U.S. Attorney for
the district in which the judicial forfeiture proceedings are
brought."). The Government also explains that claimants,
such as Avendano-Gonzalez, may file a petition for an
ancillary proceeding in this Court pursuant to 21 U.S.C.
§ 853(n) and Fed. R. Crim. P. 32.2. (Doc. 30, p. 3).
21 U.S.C. § 853(n), "[a]ny person . . . asserting a
legal interest in property which has been ordered forfeited
to the United States pursuant to this section may, within
thirty days of the final publication of notice ... petition
the court for a hearing to adjudicate the validity of his
alleged interest in the property." 21 U.S.C. §
853(n)(2). The petition must "be signed by the
petitioner under penalty of perjury and shall set forth the
nature and extent of the petitioner's right, title, or
interest in the property, the time and circumstances of the
petitioner's acquisition of the right, title, or interest
in the property, any additional facts supporting the
petitioner's claim, and the relief sought."
Id. at (n)(3). Once a claimant files the petition,
"the court must conduct an ancillary proceeding."
Fed. R. Crim. P. 32.2(c)(1). During the proceeding, "the
court may, on motion, dismiss the petition for lack of
standing, for failure to state a claim, or for any other
lawful reason." Id. at (c)(1)(A). If the court
does not dismiss the petition, it may afford the parties an
opportunity to conduct discovery and summary judgment
practice, and will then conduct a hearing if warranted.
Id. at (c)(1)(B); see also 21 U.S.C. §
853(n)(5) (establishing procedural rules for the hearing).
noted above, Avendano-Gonzalez has styled her filings as
"Petition[s] for Remission or Mitigation of a Criminal
Forfeiture Action, " and the filings are submitted on
forms that are certainly consistent with the administrative
proceeding contemplated by 28 C.F.R. § 9, et
seq. Nonetheless, Avendano-Gonzalez's Petitions also
meet all of the requirements of a request for ancillary
proceedings under 21 U.S.C. § 853(n)(3). First,
Avendano-Gonzalez signed the Petitions under penalty of
perjury. See Doc. 27, p. 5; Doc. 28, p. 5. Second,
the Petitions "set forth the nature and extent" of
Avendano-Gonzalez's "right, title, or interest"
in the vehicles by attaching the titles to each vehicle,
which indicate registration dates from 2003 and 2008,
respectively. 21 U.S.C. § 853(n)(3); Doc. 27, p. 6; Doc.
28, p. 6. Third, the Petitions state "the time and
circumstances" of Avendado-Gonzalez's
"acquisition of the right, title, or interest in the
property, " by attaching the aforementioned titles, and
also by declaring that she purchased the vehicles prior to
her relationship with Zuniga-Chavez, with money earned from
working two jobs. 21 U.S.C. § 853(n)(3); Doc. 27, pp. 2,
5; Doc. 28, pp. 2, 5. Fourth, the Petitions include
"additional facts supporting"
Avendado-Gonzalez's claim. 21 U.S.C. § 853(n)(3).
For example, Avendado-Gonzalez declares that Zuniga-Chavez
"never even drove [her] vehicles, repaired[, ] or
maintained them"; that they had only been living
together "for a short period of time" before
Zuniga-Chavez's arrest; and that she used the vehicles
"to get back and forth to work." Doc. 27, p. 4;
Doc. 28, p. 4. Finally, the Petitions set forth "the
relief sought" by Avendado-Gonzalez; namely, the return
of her vehicles. 21 U.S.C. § 853(n)(3); Docs. 27, 28.
Court will, accordingly, interpret Avendado-Gonzalez's
Petitions as a request for an ancillary proceeding pertaining
to the two vehicles named in those Petitions. See United
States v. Roberts, 2016 WL 1730587, at *3 n.1 (E.D. Tex.
Mar. 29, 2016), report and recommendation adopted,
2016 WL 1722680 (E.D. Tex. Apr. 29, 2016) (construing a
pro se claimant's "Petition for Remission
of Forfeited Property" as "a petition to the court
for a hearing to adjudicate the validity of her alleged
interest in the property pursuant to 21 U.S.C. § 853(n)
and not as a remission of forfeited property"). Having
done so, the Court also observes that Avendado-Gonzalez
timely filed her request. 21 U.S.C. § 853(n)(2) imposes
a 30-day deadline to file, which runs from-as relevant
here-the date of "the final publication of notice."
That date was May 7, 2017 in the instant case, and
Avendado-Gonzalez filed her Petitions on June 5, 2017, one
day before the deadline.
Court will therefore move forward with an ancillary
proceeding. The Government must notify the Court within 7
DAYS from the entry of this Order as to whether it intends to
file a motion to dismiss pursuant to Fed. R. Crim. P.
32.2(c)(1)(A). If so, the Government will have 14 DAYS from
the entry of this Order to file the motion, and
Avendado-Gonzalez shall have 18 DAYS from the date of the
Government's filing to respond. If the Government chooses
not to file a motion to dismiss, the Court will promptly
schedule a hearing by separate order. In conclusion, the
Government's Motion to Strike (Doc. 30) is DENIED.
 The Proof of Publication errantly
lists the end date as "May 7, 2018." (Doc. 26, p.
 The Court is allowing
Avendado-Gonzalez 18 days to respond, rather than 14 days, to
account for the additional time it will take her to send and