UNITED STATES OF AMERICA v. REGINALD MCGLORY, Appellant
No. 97-3057
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 1, 2000
SLOVITER, Circuit Judge.
On Appeal from the United States District Court For the Western District of Pennsylvania (D.C. Crim. No. 89-cr-00144). District Judge: The Honorable D. Brooks Smith. Originally Argued April 5, 1999. Before: SLOVITER and ALITO, Circuit Judges, ALARCON, Senior Circuit Judge*.
Michael A. Young (Argued)
165 Christopher Street
New York, NY 10014
Attorney for Appellant
Mary Houghton
Assistant United States Attorney
Harry Litman (Argued)
United States Attorney
Bonnie R. Schlueter
Assistant United States Attorney
633 United States Post Office and Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The issue before the en banc court in this case is whether the appellant Reginald D. McGlory received constitutionally adequate notice for the administrative forfeiture of certain property seized by officers of the Drug Enforcement Administration (“DEA“).
McGlory was arrested, tried, convicted, and sentenced to life imprisonment for various drug and firearm offenses. Incident to his arrest various of his property was seized and most of the seized property, but apparently not all, was subjected to administrative or judicial forfeiture by the DEA. McGlory first challenged the forfeiture byfiling a motion for return of property pursuant to
I.
On September 8, 1989, DEA agents and local Pittsburgh officers arrested McGlory for conspiracy to possess heroin with intent to distribute. At that time, and pursuant to search warrants, the officers seized property, including cash, from McGlory‘s apartment at 236 South Negley Avenue in Pittsburgh, Pennsylvania, his mother‘s home at 4267 Bryn Mawr Road in Pittsburgh, Pennsylvania, and
McGlory was indicted by a federal grand jury on October 4, 1989. He was charged with possession of a firearm after having been convicted of a felony, conspiracy to distribute heroin, and possession of heroin with intent to distribute. McGlory pled not guilty, and the court ordered a trial by jury to begin December 11, 1989, which was later continued to February 20, 1990.
On December 13, 1989, the government filed a superseding indictment which added additional criminal charges against McGlory. McGlory was arraigned on the superseding indictment on December 21, 1989. He again pled not guilty to each charge. McGlory‘s trial began on April 25, 1990. On May 16, 1990, the jury returned its verdict finding McGlory guilty of each of the charges set forth in the superseding indictment.
McGlory was sentenced on February 11, 1991 and was remanded to the custody of the Bureau of Prisons less than two weeks later. He therefore remained in the custody of the United States Marshals Service from the date of his arrest on September 8, 1989 until February 22, 1991, almost all of that time as a pretrial detainee. McGlory has stated that during this time he was housed in various pretrial detention facilities, but neither he nor the government introduced evidence of the facilities in which he was confined or the dates of his
Before McGlory‘s criminal trial began, and during the time McGlory was in the custody of the United States Marshals Service, the DEA initiated administrative forfeiture proceedings regarding the property covered by DEA seizure numbers 52425 ($8,800 cash), 65613 (assorted clothing), 65615 (Louis Vuitton luggage),2 66651 (Louis Vuitton luggage/briefcase), 65323 (miscellaneous jewelry), and 67065 (cellular phone).3
The DEA provided notice of these administrative forfeiture proceedings by three methods. One was by published notice in a newspaper of general circulation. The DEA also sent notice by certified mail, return receipt requested, to McGlory‘s last known address at 236 S. Negley Avenue, Pittsburgh, Pennsylvania, and his mother‘s residence at 4267 Bryn Mawr Road, Pittsburgh, Pennsylvania. Finally, the DEA sent notice by certified mail, return receipt requested, addressed to McGlory to or in care of the United States Marshals Service at the federal courthouse located at 7th and Grant Street, Pittsburgh, Pennsylvania. Those notices were mailed between September 26, 1989 and November 15, 1989. McGlory claims that he received none of these notices. The government has made no attempt to show otherwise.
McGlory did not take steps for the return of the property seized until April 11, 1994 when he filed a pro se motion under
On January 3, 1997, the District Court determined that the Magistrate Judge
On January 13, 1997, McGlory, through counsel, filed a motion for reconsideration of the January 3, 1997 order denying his
The Federal Rules of Civil Procedure do not specifically refer to a motion to reconsider but such motions, iffiled within ten days of judgment, are generally treated as motions to alter or amend judgment under
Patently, McGlory‘s original notice of appeal from the January 3, 1997 order could not confer jurisdiction over the District Court‘s September 22, 1998 order denying reconsideration. See United States v. Rivera Construction Co., 863 F.2d 293, 298 (3d Cir. 1988) (“However, where the order or judgment upon which the appellant seeks review is neither directly nor indirectly referred to in the notice of appeal, then the issue is not fairly raised and the Court of Appeals does not acquire jurisdiction.“) (internal quotation omitted). We therefore must limit our review to the merits of the January 3, 1997 order denying McGlory‘s
The government states in its brief that “[t]he district court may have lacked subject-matter jurisdiction over the entire claim.” United States Brief at 19. As we understand the government‘s position, it is that jurisdiction may be lacking both because McGlory‘s challenge is to an administrative forfeiture and because McGlory‘s motion was filed after the completion of the underlying criminal proceedings. We have not previously considered whether a district court lacks jurisdiction over a
A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant. . . .
McGlory‘s
The civil forfeiture of property that constitutes the proceeds of drug transactions is authorized by
A district court ordinarily lacks jurisdiction to review the DEA‘s administrative forfeiture proceedings. See Linarez v. United States Dep‘t of Justice, 2 F.3d 208, 212 (7th Cir. 1993) (“[O]nce the government initiates an administrative forfeiture proceeding and the property is not the subject of an ongoing criminal proceeding, the district court loses jurisdiction to resolve the issue of return of property.“). However, “the federal courts have universally upheld jurisdiction to review whether an administrative forfeiture satisfied statutory and due process requirements.” United States v. Woodall, 12 F.3d 791, 793 (8th Cir. 1993) (citing cases).
Some courts have found equity jurisdiction appropriate to review a claimant‘s challenge to the sufficiency of the notice on the theory that a claimant who received inadequate notice lacked an adequate remedy at law. See United States v. Claggett, 3 F.3d 1355, 1356 (9th Cir. 1993) (reasoning that “[i]f notice of the pending forfeiture was inadequate, . . . then the forfeiture proceeding was never available to [the claimant] in any meaningful sense.“); Sarit v. U.S. Drug Enforcement Admin., 987 F.2d 10, 17 (1st Cir. 1993) (“Whereas most challenges to forfeiture would be foreclosed by . . . failure to utilize [the statutory mechanism], courts have entertained challenges to the adequacy of notice, reasoning that the mechanism is not available to a plaintiff who is not properly notified of the pending forfeiture.“).
Further, those courts which have allowed limited judicial review of an administrative forfeiture proceeding on due process grounds have also ruled that a
We find the reasoning of these cases persuasive and now hold that a district court has jurisdiction to consider a claim that a person received inadequate notice of completed administrative forfeiture proceedings, notwithstanding that the claim was styled as a
We thus turn to the narrow issue before us on this appeal: whether a pretrial detainee in custody of the Marshals Service has a due process right to have notice of administrative forfeiture proceedings mailed by the forfeiting agency directly to the pretrial detainee at the institution where s/he is being housed. The procedure followed by the DEA in this case, and apparently its general practice, was to mail a notice addressed to the detainee to or care of the Marshals Service at its office in the Pittsburgh courthouse, a practice that McGlory contends does not comport with due process.
The government argues that due process was satisfied by sending the notices to the Marshals Service because under the Service‘s standard office procedure “any correspondence addressed to a person in custody . . . [was] forwarded . . . to the intended recipient, at his place of confinement, by first class mail, postage prepaid.” Declaration of Gary Richards, Chief Deputy, United States Marshals Service, App. at 104. McGlory argues, in contrast, “that in order to satisfy constitutional requirements, the DEA was required to address the certified mail containing the notices to [McGlory] at the prison where the government was confining him.” McGlory‘s Reply Br. at 7-8; see also McGlory‘s Opening Br. at 19-20.8 Thus the parties are joined on the issue whether the government has fulfilled its responsibility under the Due Process Clause to give reasonable notice under the circumstances by relying on the Marshals Service to forward notice to the detainee when the government, in whose custody the detainee is committed, is uniquely well situated to ascertain the detainee‘s whereabouts.
The District Court did not meet this issue directly in its order of January 3, 1997, the only order properly before us, as it found that McGlory was personally served with notice of the administrative forfeitures. McGlory has consistently maintained that he was not personally served; further, even the government does not contend that McGlory was “personally served” (the language used by the District Court) by delivery to him. Although the DEA‘s notices were sent to the Marshals Service certified mail, return receipt requested, the Marshals Service allegedly remailed them by first class mail to McGlory at the prison where he was detained. As previously noted, the government has not produced any return receipts signed by McGlory.
The statute governing administrative forfeitures requires, in addition to notice by publication, “[w]ritten notice . . . to each party who appears to have an interest in the seized article.”
Twenty-three years later, in Robinson v. Hanrahan, 409 U.S. 38 (1972), the Court addressed the question whether a notice of forfeiture, mailed to a prisoner‘s home address by the government entity in whose custody the
In the instant case, the State knew that appellant was not at the address to which the notice was mailed and, moreover, knew also that appellant could not get to that address since he was at that very time confined in the Cook County jail. Under these circumstances, it cannot be said that the State made any effort to provide notice which was `reasonably calculated’ to apprise appellant of the pendency of the forfeiture proceedings.
Id. at 40. In so ruling, the Court suggested that the notice provided “with respect to an individual whose name and address are known or easily ascertainable,” id., must be such notice that can be put to practical use. It cited its earlier decision in Covey v. Town of Somers, 351 U.S. 141 (1956), where it held that even mailing of a notice of foreclosure was inadequate if the individual involved was incompetent and without the protection of a guardian. Consistent with the principle enunciated in these cases, the Court stated in Mennonite Board of Missions v. Adams, 462 U.S. 791, 800 (1983), that “[n]otice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party . . . if its name and address are reasonably ascertainable.” (emphasis omitted).
We took guidance from these cases in United States v. $184,505.01 in U.S. Currency, 72 F.2d 1160 (3d Cir. 1995), a case involving an earlier set of forfeitures of other of McGlory‘s property. In that case, the government sent notices to McGlory‘s last known address but made no attempt to reach him at his place of confinement. We held this attempt inadequate under Robinson and Mennonite Board, stating, “McGlory argues, in our view persuasively, that Robinson and Adams together required that the government at least make an attempt to serve him with notice of the forfeiture proceedings in prison.” Id. at 1163 (emphasis added). Robinson alone should be dispositive of the issue in this case.
The government cites no authority, and we are aware of none, that suggests that the forfeiting agency may delegate its responsibility by mailing notice to the Marshals Service in Pittsburgh when the forfeiting agency is aware that the intended recipient is confined elsewhere. Even assuming arguendo that mailing the notices to the Marshals Service is more likely to reach the prisoner than mailing them to his last known address, the defect in $184,505.01, it is still inadequate when the government department or agency responsible for giving notice, here the DEA, knows or can quickly and easily obtain the place where the prisoner is confined.
The constitutional imperative derived from Mullane and Robinson and their progeny plainly suggests that in order to give notice that meets the requirement of due process, the agency responsible for sending notice must, at least in the first instance, address and direct notice to the detainee at his place of confinement. This hardly imposes an onerous burden as the DEA did in fact mail notices to McGlory. Its deficiency was in not mailing them to McGlory‘s place of confinement. Rather than the two step process followed here, which entailed mailing McGlory‘s notices to the Marshals Service in Pittsburgh and relying on it to remail them to McGlory at the institution where he was then detained, the DEA could have ascertained McGlory‘s whereabouts at the relevant time from the Marshals Service (which acts as the locator for all persons in federal custody) and mailed its notices to him directly.
It is not a novel proposition to hold that due process requires that notice to prisoners be directed and mailed to the prisoner where detained. Numerous decisions by other courts of appeals so hold. See, e.g., Weng v. United States, 137 F.3d 709, 714 (2d Cir. 1998) (“Absent special justifying circumstances, the least that can be asked . . . is that [the forfeiting agency] determine where the claimant is detained and send the notice to the right institution.“); United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996) (“When the government is aware that an interested party is incarcerated, due process requires . . . an attempt to serve him with notice in prison.“); Torres v. $36,256.80 U.S. Currency, 25 F.3d 1154, 1161 (2d Cir. 1994) (“[I]f the DEA had desired to give [claimant] actual notification, a simple call to the Bureau of Prisons would have sufficed to reveal where [he] was serving his sentence.“). Cf. United States v. Real Property, 135 F.3d 1312, 1316 (9th Cir. 1998) (rejecting due process challenge when notice was sent, inter alia, to institution where claimant was confined).
The government also argues that because pretrial detainees are often moved between detention facilities and McGlory could have been moved after the DEA ascertained his whereabouts and sent the mail, “sending notice via the Marshals Service was the most reasonable and efficient means available for the DEA to provide McGlory with actual notice of its administrative actions.” United States brief at 23. Even if we assume that the Marshals Service actually followed its policy and remailed the notices, and the government introduced no such evidence, using the Marshals Service as a conduit for forfeiture notices may exacerbate rather than cure the problem it was designed to solve. McGlory could have been moved after the Marshals Service itself sent the mail. And adding the Marshals Service in the chain of mailers duplicates the number of agencies handing the mail, thereby increasing the possibility of error, and doubles the time until his receipt which is hardly a more reasonable attempt at service than mailing the notices directly to the detainee in thefirst place.
There is no suggestion in this case that McGlory was moved about with such rapidity that it would not have been possible for mail to catch up with him. All of the administrative forfeiture notices at issue here were mailed between September 26 and November 15, 1989. What little record evidence there is suggests that McGlory was not moved during this time and that at least the U.S. Attorney‘s office knew where McGlory was for at least part of that time. See Case Information Reports filed by U.S. Attorney William Conley on October 4, 1989 and December 11, 1989, listing McGlory‘s place of confinement as Hancock County Jail.
Moreover, the DEA did not even make an attempt to reach him at his place of confinement, as we held was required in $184,505.01, 72 F.3d at 1163. Due process does not require an infallible method of giving notice. But before relying on the Marshals Service policy, which apparently failed in these six instances, the DEA had at hand a method more “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Mullane, 339 U.S. at 314. As the Supreme Court in Mullane stressed, “when notice is a person‘s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” 339 U.S. at 315. One who was “desirous of actually informing” McGlory would have taken the time to ascertain the easily ascertainable fact of his whereabouts and would, at the least, have directed the notices to him at that address.9
IV.
For the reasons set forth we will vacate the District Court‘s order of January 3, 1997 granting summary judgment to the government with regard to DEA seizure numbers 52425, 65613, 65615, 66651, 65323 and 67065 and remand to the District Court for further proceedings consistent with this opinion.10
ALITO, Circuit Judge, dissenting:
I dissent from the judgment of the court and from part III of the court‘s opinion, which concerns the constitutionality of the notice of forfeiture that was provided in this case. I cannot agree with the majority‘s decision on this issue because it seems to me to be plainly inconsistent with the legal rule on which the majority purports to rely. According to the majority, “due process requires that when a person is in the government‘s custody and detained at a place of its choosing, notice of a pending administrative forfeiture must be mailed to the detainee at his or her place of confinement.” Maj. Op. at 16-17. That is precisely what may well have happened in this case, and yet the majority holds that the manner in which notice was given here violated due process.
In the majority‘s view, the following procedure should have been used. An employee of the Drug Enforcement Administration (a component of the Department of Justice) should have ascertained from the United States Marshals Service (another component of the Department of Justice) where McGlory was held at the various times in question1 and then sent the notices
Why, then, does the majority think that due process was violated? The majority provides no express explanation. The majority opinion appears to hint at two possible explanations, but neither is supportable. First, the majority may believe that it is essential that the notice be sent to the detainee‘s place of confinement by “the forfeiting agency,” Maj. Op. at 11, in this case the DEA, rather than the Marshals Service. Compare Weng v. United States, 137 F.3d 709, 715 (3d Cir. 1998)(treating the forfeiting agency, the DEA, and another component of the Justice Department, the Bureau of Prisons, as one entity for the purpose of due process notice requirements in administrative forfeiture of property of detainee). The majority, however, provides no reason for this requirement, and there is no constitutional basis for it. The forfeiture proceedings were brought in the name of the United States, and I fail to see why it matters for due process purposes whether the notices were mailed by a person working for the DEA or the Marshals Service. Suppose that the notices had been mailed by an employee of the United States Attorney‘s office or an employee of the Criminal Division of the Department of Justice in Washington. Would that make the notices constitutionally inadequate?
The other possible ground for the majority‘s decision is internal Executive Branch efficiency. The majority opines that “adding the Marshals Service in the chain of mailers duplicates the number of agencies handling the mail, thereby increasing the possibility of error, and doubles the time until . . . receipt [by the detainee].” Maj. Op. at 15. But even if this is true, it does not matter for purposes of the Due Process Clause. What matters for due process purposes is that notice is in fact mailed to the right place at the right time. If those requirements are met, any inefficiency in the internal government procedures leading up to the mailing is a matter for the Executive, not the Judiciary.2
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit
Notes
The following shall be subject to forfeiture to the United States and no property right shall exist in them . . .
(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter. . . .
If . . . the value of such seized vessel, vehicle, aircraft, merchandise, or baggage does not exceed $500,000 [,]. . . the appropriate customs officer shall cause a notice of the seizure of such articles and the intention to forfeit and sell or otherwise dispose of the same according to law to be published for at least three successive weeks in such manner as the Secretary of the Treasury may direct. Written notice of seizure together with information on the applicable procedures shall be sent to each party who appears to have an interest in the seized article.
The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer.