*1 America, STATES UNITED
Plaintiff-Appellee/Cross-
Appellant, DUSENBERY, Defendant- Larry Dean Appellant/Cross-Appellee. 98-4014, 98-4036.
Nos. Appeals, Court United Circuit. Sixth 14, 1999. Sept. Argued: 13, 2000. and Filed: Jan. Decided Banc En Rehearing Rehearing March 2000.* Denied briefed), (argued L.
James Morford Cleveland, Attorney, of the Office Ohio, Appellee. for briefed), Mancino, (argued Jr. Paul Cleveland, Mancino, Mancino, & Mancino (briefed), Ohio, Larry Dean se., Appel- Haute, Indiana, for pro Terre lant. COLE, SUHRHEINRICH,
Before: GIBSON**, Judges. SUHRHEINRICH, J., delivered J., GIBSON, court, in which of the opinion 769), COLE, (p. delivered J. joined. dissenting opinion. separate ** Gibson,
*
Judge John R.
The Honorable
rehearing
the rea-
grant
Judge Cole would
Appeals
Judge
Court
dissent.
in his
sons stated
designation.
sitting by
Eight
*2
(4)
OPINION
20, 1992;
April
forfeited on
a 1956
convertible,
Corvette
seized on October
SUHRHEINRICH,
Judge.
and
April
1992;
forfeited on
and
Defendant-Appellant Larry Dean Du-
(5) $20,754.23
City
National
Bank cash
senbery appeals the district
judg-
court’s
check,
ier’s
listed in the name of Dusen-
ment denying his motion under Fed.
(his
bery and Edward Clouse
mother’s
41(e)
R.Crim.P.
for the return of forfeited
boyfriend),
8, 1990,
August
seized on
and
property.
Plaintiff-Appellee
29,1992.
July
forfeited on
cross-appeals
the district court’s
10, 1996,
July
moved,
On
Dusenbery
un-
ruling
its
no-
Fed.R.Crim.I). 41(e)2,
der
for the return of
tices were constitutionally insufficient.
property.
Dusenbery claimed that the
reasons,
For the following
we AFFIRM.
seizure of his
violated
pro-
due
Background
I.
cess because the Government failed to no-
tify him of its intent to forfeit his property.
convicted and
Significantly, Dusenbery did not claim at
possession
incarcerated for
and distribu
time that
the statute of limitations
tion of cocaine. See United States v. Du
already
had
run when the Government
(N.D.Ohio 1986).1
senbery, No. 86-CR-102
sent the allegedly defective notices.3 The
incarcerated,
While
Dusenbery continued
responded
Government
that Dusenbery re-
to oversee
operate
and
his cocaine distri
ceived notice
personal
because it sent
no-
bution network. This resulted in his 1994
tice to Dusenbery’s mother and to the
conviction for
engaging
a continuing
(“Mi-
Milan Federal Correctional Institute
criminal enterprise (“CCE”), in violation of
FCI”),
lan
where the Government main-
848. This Court affirmed his
tained Dusenbery was incarcerated. The
conviction and sentence.
See United
Government also stated that notice of the
94-3804,
States v. Dusenbery, No.
proposed
published
forfeiture was
in the
6, 1996).
WL
at *1
Cir. June
Cleveland Plain
Finally,
Dealer.
the Gov-
conviction,
Incident
to this
the Govern
argued
ernment
that Dusenbery was put
ment obtained administrative civil forfei
through
notice
presented
evidence
ture of several items Dusenbery’s
prop
at his CCE trial. Dusenbery replied that
erty.
(1) $18,672.74
These items included:
he was not at Milan FCI when the notice
9, 1990,
seized on July
and forfeited on
was sent because he had been transferred
19, 1990; (2) $80,141.93,
October
seized on
jail
to a local
trial.
await
9, 1990,
July
and forfeited on October
(3)
1990;
a 1990 Oldsmobile Delta 88 con
The district court denied the Rule
vertible,
10, 1991,
seized on
motion,
October
and
concluding Dusenbery had re-
conviction,
Rule,
1.In
connection with this
the Gov
provides
pertinent part:
ernment obtained civil forfeiture of several
person aggrieved by
A
an unlawful search
$21,-
items of
property, including
and
deprivation
seizure or
proper-
940.00 in
currency
and a 1984 Chevrolet
ty may move the district court for the dis-
Carlo.(lO) Dusenbery
Monte
later moved un
trict in
which the
was seized for
successfully for the
property,
return of this
ground
return of the
on the
claiming that the
forfeited
was his
person
government's
pos-
that the
is entitled to
proceed
lawful
ings
reversed,
improper.
were
property.
session of the
This court
remanded
41(e).
for further
See Du
Fed.R.Crim.P.
States,
senbery
v. United
1996 WL Sept.25,
23, 1997,
July
appears
On
It
that the
statute of lim-
evidentiary hearing
regarding
itations,
was held
Du
which is five
from the discov-
senbery's motion
property.
return
offense,
ery
alleged
already
had
run on
Dusenbery v. United
No. 5:95-CV-1872
some of the items at issue. See 19 U.S.C.
(N.D.Ohio
23, 1997) (hereinafter
July
“Dusen-
§ 1621.
/").
bery
These items are not at issue in this
appeal.
Dusenbery failed to rebut
Because
sales.4
proposed
each
notice of
adequate
ceived
cause, the district
showing
forfeiture,
Government
proper and
that forfeiture was
process.
executed
properly
to the Govern-
summary
remanded
granted
we reversed
appeal,
See United
evidentiary hearing.
ment.
*3
96-3941, 1997 WL
Dusenbery, No.
1997).
Analysis
We
*2
June
II.
at
of
circumstances
that,
all the
“under
an order
appeals
of
reviews
court
this
does
case,
before
court
record
novo and
judgment de
summary
granting
Dusenbery
provided
that
not establish
used in the
same test as
uses the
of the sei-
adequate notice
constitutionally
Inc.
Agency,
Terry Barr Sales
court. See
issue.”
forfeitures at
impending
and
zures
Co.,
v. All-Lock
court
the district
*2.
instructed
at We
Summary judgment
notice, “Dusen-
if
found insufficient
that
it
to
answers
depositions,
“if
pleadings,
to
opportunity
an
given
bery should be
file,
to
and admissions
interrogatories,
Id. at
at this time.”
the forfeitures
contest
affidavits,
that
any,
show
gether
with
*3.
any materi
issue
genuine
there is no
as
deter-
remand,
court
is enti
moving party
al fact
that
evidentiary hearing was
an
mined
of law.”
a matter
to a
tled
“documentary evidence
necessary because
56(c).
Fed.R.Civ.P.
alone,
reveal
government,
by the
filed
of the United
of Title 21
Section
actual notice
received
Dusenbery never
Code,
Compre-
part
which is
property.”
of his
forfeitures
pending
and Con-
Prevention
Drug Abuse
hensive
that the notices were
to find
proceeded
It
91-313,
II, §
Act,
Title
trol
Pub.L.
law.
It
matter of
as a
insufficient
thus
(1970),
the United
authorizes
Stat.
motion
government’s
that “the
also found
drug transac-
subject
proceeds
insuffi-
judgment assumed
summary
for
See
tions to civil forfeiture
notice,”
making an
thereby
evidentia-
cient
881(a)(6) (West Supp.1999).5
§
21 U.S.C.A.
The district
unnecessary.
hearing
ry
limitations,
applicable
Under the
argument,
Dusenbery’s
rejected
years
five
agency
remand, that
time on
made for the first
alleged offense
discovery of the
from the
barred
were
forfeiture
further
proceeding.
forfeiture
to institute
of limitations. See
five-year statute
by the
1999).6
(West
§ 1621
19 U.S.C.A.
1999).
(West
After
§ 19 U.S.C.A.
$500,000 or
forfeiture,
valued at
If
the merits of
considering
less,
may use
DEA
an
that the Govern-
found
the district court
laws.
customs
cause that
established
ment
1607(a)(West 1999); 21
§
See 19 U.S.C.A.
pur-
or
proceeds, was
constituted
1999).
881(d)(West
Publication
§
drug U.S.C.A.
illegal
proceeds
chased with
exchange,
proceeds traceable
hearing
evidentiary
on the motion
4. At the
instruments,
I, Dusenbery
negotiable
Dusenbery
moneys,
all
property in
return
money he
to be used
used the
used or intended
testified
he
securities
drugs
purchase sev-
through selling
subchapter.
earned
of this
violation
to facilitate
property and
personal
(West
items of
881(a)(6)
enteen
Supp.1999).
§
21 U.S.C.A.
with the
Carlo
connection
Monte
seized
supra, note 1.
See
conviction.
accruing un-
... forfeiture
6."No
unless
instituted
laws shall be
der
customs
881(a)(6) provides
the fol-
§
U.S.C.
5. 21
five
within
action is commenced
or
such suit
subject
lowing are
to forfeiture:
alleged offense
years
the time when the
after
instruments,
negotiable
securi-
moneys,
All
ties,
(West
§ 1621
19 U.S.C.A.
was discovered.”
things of value furnished
or other
by any person in
furnished
intended
be
..., all
exchange
a controlled substance
begins
of notice
administrative forfei
is,
statute of limitations. That
1607(a);
§
ture.
U.S.C.A.
argues that
the Government
(1999).
DEA
C.F.R.
1316.75
is also could not reinstate forfeiture proceedings
required
every
to send notice to
party
during
the 1997 remand because the factu-
al
interest
in the
basis for
property.
See 19
CCE charges was
1607(a).
more than
A claimant
five
U.S.C.A.
who has
old. He therefore
contends that
received
all his
constitutionally adequate notice of
and funds
returned,
should be
twenty
intent to forfeit then has
with interest.
days from
publication
the date of the first
In deciding Dusenbery’s claim
notice of
to judicially
seizure
contest the
41(e)7,
under Rule
we will assume that the
by filing
a claim with the DEA notices of forfeiture were insufficient and
bond,
a cost
or a
declaration
inabili
proceed to the
question:
What is
*4
ty to file a cost bond. See 19 U.S.C.A.
the proper
for a
remedy
process
due
viola
1
(West
1999);
§ 1608
2
C.FiR.
tion in an administrative forfeiture pro
(1999).
§§
filed,
1316.75-.76
If no claim is
ceeding when the statute of
limitations
an administrative forfeiture
by
occurs
de
filing
judicial
a
forfeiture action has ex
(West 1999);
fault. See 19 U.S.C.A. § 1609
pired? Few
have
circuits
addressed this
(1999).
§
C.F.R.
1316.77
issue, and those that have are divided.
properly
A
filed
stops
claim
the adminis
DEA,
301,
Boero v.
111 F.3d
305-07
process
trative forfeiture
requires
(2d Cir.1997), the Second Circuit resolved
seizing agency to refer the matter to the
problem
of a defective notice
United
Attorney
institute
untimely claim
outside
statute of limi-
forfeiture proceedings. See 19 U.S.C.A.
by
tations
directing the trial court to re-
(West
1608;
§§
1999);
21 C.F.R.
dispute
solve the
on the merits. See
at
id.
1316.76(b);
(1999).
§§
1316.78
The DEA
There,
305-07.
the DEA administratively
required
is then
to show probable cause
31,
forfeited
on January
$1799.46
1991.
1615;
§
forfeiture. See 19 U.S.C.
money
had been seized from Boero
$67,220.00
States v.
United
in U.S. Cur when he
25,
was arrested on October
(6th
rency,
957 F.2d
for violations of federal narcotics laws.
Upon a showing
probable cause,
the The DEA sent notices of seizure to Boero’s
proof
burden of
shifts to the claimant to home
presumed
and to his
place of incar-
demonstrate that the property is his and
ceration,
in accordance with 19 U.S.C.
proceeds
of drug transactions.
§ 1607. The DEA
published
also
notice in
claimant may
meet
his burden
USA Today pursuant
to 21 C.F.R.
showing that
the property was not the
§
However,
1316.75.
Boero never received
proceeds
illegal
drug activities or that
the notices
he
because
had been trans-
the claimant is an “innocent owner” and
ferred
prison.
to a state
proceeds’
unaware of the
criminal con
31, 1991,
January
On
the DEA declared
1615;
§
nection. See 19 U.S.C.
United
the property administratively
forfeited
States v. Certain
Property
Real
566 Hen
the United States
§
under 19 U.S.C.
1609.
Blvd.,
drickson
986 F.2d
Boero filed a
complaint
civil
against the
Cir.1993). If the
claimant fails
his bur
13, 1994,
DEA
April
and subsequently
den,
judg
entitled to a
moved for summary judgment, arguing
ment of forfeiture. See id.
that his property should be returned as
appeal
Dusenbery argues
equitable
that forfei-
relief for the failure of notice.
longer
ture is no
available because of the The DEA
notice,
conceded
but
jurisdiction
We have
(1st Cir.1995)
curiam);
to entertain collateral
(per
United
process
due
attacks on administrative
Woodall,
forfei-
tures, including challenges
adequacy
to the
Giraldo,
See
notice.
United
45 F.3d
date
the initial
years
be
motion should
Boero’s
argued
five
seizure,
improper
admin-
unperfected
timely but
as a
treated
1603(b)
§§
(Ordinarily,
19 U.S.C.
under
never occurred.
claim
istrative
words,
DEA ar-
laws
In other
under
the customs
admin-
to his
was limited
that Boero
unthin
gued
must be commenced
five
not recover
and could
claim
alleged
istrative
time when the
offense
after
The district
court.
money
1621;
See 19 U.S.C.
was discovered.
and held that
the DEA
agreed
881(d)).
via administra-
remedy was
claimant’s
omitted).
(internal footnotes
at 304-05
id. at 303-04.
See
procedures.
claims
tive
therefore concluded
The Second
reversed, holding
The Second
restore
remedy was to
that Boero’s
that:
hearing in district court.
to seek a
right
States, v. United
In Onwubiko
Kadonsky
also
at 307.8 See
id.
(2d Cir.1992),
explained
we
1392, 1398
at *2-3
1998 WL
forfeiture ordi
an administrative
1998)
(N.D.Tex.
(holding that the
March
subject matter of
narily removes
in a
violation
remedy for
due
res—from
action—the
where the statute
proceeding
court,
thereby deprives
on the
hearing
run
adminis
to review
jurisdiction
court of
*5
question).
of the forfeiture
merits
administrative
once the
decisions
trative
to this
exception
An
begun.
process
in Boero
the
Although
Second
is taken acciden
rule is when
limi-
the statute of
directly address
did not
improperly.
fraudulently,
tally,
expressly
it
note
did
problem,
tations
claim, the dis
asserting
actions
allowed Boero
court had
to correct
jurisdiction
trict court has
remedy, over five
administrative
pursue an
complaint
deficiency.
Boero’s
the initial seizure.
the date of
years after
improperly—
was taken
the Boero court’s
effect of
practical
The
correctly in
without
notice—
a determination
and remand for
reversal
The
jurisdiction.
court
voked district
to treat
was
of the forfeiture
on the merits
concerning impropriety
findings
court’s
voidable rather
the ineffective notice
power
court
gave the
the forfeiture
of
void,
of limitations
that the statute
than
so
The
deficiency. See id.
correct
tolled.
was
however,
court,
did not correct
defi
cases,
one
two
Conversely,
other
allowed Boero
ciency,
instead
Tenth
one from
Circuit and
remedy, over
the Ninth
pursue
administrative
Circuit,
ruling
a dis
upon
ap-
The Ninth
catalogued various
Boero court
process
over due
jurisdiction
trict court has
circuits:
proaches taken
other
proceedings
challenges to administrative
Eighth
have ruled
Circuits
The First
1331,
case
remanded the
under
forfei
when notice
Mar
adjudication on the merits.
inadequate,
court must
district
ture is
1096,
U.S.,
1103
Leasing
893 F.2d
v.
shall
order
and either
set aside
Circuit,
1990).
(9th
in Ar
Fifth
Cir.
property or direct
the seized
return of
679,
DEA,
683
v.
82 F.3d
mendariz-Mata
judicial forfei
to commence
937,
denied,
Cir.),
(5th
117
519
cert.
See, e.g, United States
in district court.
ture
(1996), having
317,
232
136 L.Ed.2d
S.Ct.
1996);
86,88 (8th Cir.
Volanty, 79 F.3d
v.
forfeiture
an administrative
notice in
found
509,
Giralda,
45 F.3d
States v.
insufficient, directed the
proceeding to be
Woodall,
Cir.1995);
(1st
United States
adminis
the DEA's
to vacate
court
Cir.1993).
(8th
The Federal
F.3d
providing further
without
trative forfeiture
can ex
held that a district
Circuit has
or comment.
instructions
comply
failure
owner’s
cuse
(2d
DEA,
n. 6
111 F.3d
Boero
requirements when no
statutory
address the
these cases
None of
proceed
tice in an administrative
of limita-
running of the statute
effect of
Litzenberger v. United
inadequate.
ing is
tions,
(Fed.Cir.1996).
States,
however.
reject
the Second
ap
Circuit’s
Rule
equita
are
proach in Boero and hold that a
ble in
nature
criminal proceedings are no
void,
longer
adequate
pending.
without
notice is
and if
See United
States v.
(6th
Duncan,
Cir.1990);
918 F.2d
against
statute
limitations has run
Marolf,
Like the Second we think that inadequate notices should be treated as above, As indicated we have assumed voidable, void, and that the proper that the Government’s notices were consti- remedy simply right restore the tutionally inadequate. We conclude that timely which a Rule notice would the merits of the forfeiture were properly have conferred on the claimant: right considered, notwithstanding the interven- judicially contest the forfeiture and to ing expiration of the statute of limitations. put the Government to its proofs under a Additionally, adopt we the district court’s Thus, cause standard. the Gov- determination of the merits of the forfei- ernment is not required to institute “new” ture. This obviates need to address forfeiture proceedings, and cross-appeal. Government’s Accord- limitations, therefore has ingly, we AFFIRM the judgment of the no bearing. district court. supporting In its conclusion that historically "represented] limitations have a void, notices should be treated as pervasive legislative unjust that it is Marolf court remarked that put adversary statutes to fail to on notice to defend "impose duty no prevent defendant to specified period within a of time and that the losing rights through right its to be free of stale claims in time comes carelessness," Marolf, prevail right prosecute over the them.” (9th Cir.1999) (internal quo- (internal quotation Id. at 1217-18 marks omitted); tation omitted). marks and that statutes of dissenting.
COLE, Judge, Plaintiff-Appellee, GABLE, Sarah majority opinion with the disagree I reasoning of I find case because this v. in United Tenth Circuits the Ninth v. LEWIS; T. Kenneth Ronald G. 1999) Clymore United Woehrmyer, Defendants- F,3d Cir.1999) persuasive more Appellants, in Boero decision Circuit’s than the Second Administration, 111 Drug Enforcement al., Hannay, Roger et Defendants. (2nd F.3d 301 No. 98-3819. Boero, stated, majority theAs notices defective held that Second Appeals, Court United States as voidable should be treated appeal Circuit. Sixth void, tolling the stat- thereby than rather filing of limitations for the ute 3, 1999. Argued: Nov. seeing disagree, I of a the merits to determine reason no 13, 2000. and Filed: Jan. Decided no- original when the challenged constitutionally defective tice Inadequate run. limitations has
statute constitutionally defec- void and notice instance, no simply there is tive. five-year statute disregard reason in 19 U.S.C. set forth limitations gov- when the rare occasions short applica- valid has a basis ernment tolling. Such equitable of laches tion re- a claimant the case when would be on a Rule and sits borderline notice ceives five-year statute motion until run, scenario fears. majority *7 courts should be As noted stat- wary of civil forfeiture “particularly pen- utes, ‘quasi-criminal’ they impose owners affording property without alties afforded procedural protections all of the F.3d at defendants.” criminal omitted). Further, (citation quotation to be dili- ought process protections “[d]ue relaxed, enforced, no means gently traditionally disfa- party seeks the where Clymore, remedy of forfeiture.” vored (citation omit- quotation F.3d at reasons, ted). respectfully I For these majority opinion. dissent