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United States v. 2006 Mercedes-Benz Ml350 Vin No. 4Jgbb86e46a016429

United States District Court, D. Nevada

October 16, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
2006 MERCEDES-BENZ ML350 VIN NO. 4JGBB86E46A016429, Defendant.

DANIEL G. BOGDEN, United States Attorney, District of Nevada, MICHAEL A. HUMPHREYS, Assistant United States Attorney, Las Vegas, Nevada, Attorneys for the United States of America.

GOVERNMENT'S MOTION TO STRIKE THE CLAIM OF ROBERT OSTRAM AND KAY OSTRAM (ECF NO. 15)

MICHAEL A. HUMPHREYS, District Judge.

The Plaintiff, United States of America, by and through the United States Attorney for the District of Nevada, moves this Court to strike the third-party, joint claim of Robert and Kay Ostram in the above-captioned case. This motion is based upon the Ostrams' failure to: 1) file their claim under penalty of perjury; and 2) file their claim within thirty-five (35) days of receipt of notice as required by statute.

BACKGROUND AND FACTS

From 2008 to 2011, Eduard Petroiu and others were engaged in a massive fraud where the conspirators would offer cars, trucks and other conveyances for sale over the internet that did not exist or did not belong to the conspirators to sell. Relying on the schemers' false promises, scores of unwitting buyer/victims sent money to the conspirators expecting to receive a car, or similar conveyance, that was never delivered. Once targeted by law enforcement, the conspirators' fraud scheme came to a swift end, culminating in their indictment in December 2011. A superseding indictment was returned against the defendants in October 2012. All but two of the 17 conspirators have pled guilty and have been sentenced.

On February 5, 2014, the Government served the Ostrams with copies of the Complaint, the Order for Summons and Warrant of Arrest in Rem for the Property, the Summons and Warrant of Arrest in Rem for the Property, and the Notice. Notice of Corrected Image/Document regarding ECF No. 22 Notice of Filing Service of Process - Mailing, ECF No. 23.

The Notice, in particular, described, in plain terms, how a putative claimant should go about filing a claim and answer and the time deadline for doing so. On May 1, 2014, Robert Ostram and Kay Ostram filed both a claim and an answer with the Court. Claim, ECF No. 15. In their claim, they stated that they were defrauded of $6, 078.00 when they attempted to purchase an Airstream camper. Based on the notice that they received the Ostrams should have filed their joint claim no later than March 12, 2014. However, they did not file their notice until May 1, 2014.

As described below, in filing their claim, the Ostrams, failed both substantively and procedurally, to comply with the mandatory requirements of law and, as a result, caselaw both within and outside of this Circuit mandates that their claim be stricken

ARGUMENT

The Ostrams' Lack Statutory and Constitutional Standing To Assert A Rule G(5) Claim

A third-party litigant seeking to share in a forfeiture judgment has the burden to prove that s/he has a "legal interest" in the forfeited property to establish standing. United States v. Timley, 507 F.3d 1125, 1129-30 (8th Cir. 2007); United States v. Salti, 579 F.3d 656, 667 n. 11 (6th Cir. 2009)(claimant has the burden of proof on the standing issue. In addition, the claimant must strictly comply with any and all requirements of the pleading statues before his or her claim is recognized. United States v. Real Property and Premises Known as 323 Forrest Park Drive, 2013WL 1316035 (6th Cir. April 2, 2013); United States v. Mack 600 Dump Truck, 680 F.Supp.2d 816, 825 (E.D. Mich. 2010).

To qualify as valid claimants, the Ostrams must show that they have satisfied the statutory and constitutional standing requirements. United States v. One Cadillac Seville, 866 F.2d 1142 (9th Cir. 1989) ("We require proper standing to contest a forfeiture both as a statutory matter and as an Article III and prudential matter." Id. at 1148). Statutory standing is satisfied by showing strict compliance with the requirements of Rule G(5), Supplemental Rules for Admiralty and Maritime Claims. United States v. $5, 730.00 (109 JFed. Appx. 712, 713 (6th Cir 2004). Constitutional standing means that the Claimant must show that s/he has an actual imminent injury, not a hypothetical, conjectural or abstract injury. United States v. Lazarenko, 476 jFJ.3d 642, 649-5 (9th Cir. 2007). In this case, the Ostrams have proven neither.

First, to prove statutory standing, a putative claimant must satisfy the pleading requirements of the statute that authorizes him or her to file a claim. As such, in this case, the Ostrams must prove that they have complied with each element of ...


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