United States v. Reginald McGlory

Magistrate Judge ordered that McGlory SLOVITER, Circuit Judge. by detained the United States Marshals The issue before the en banc court in Service pending By trial. arrangement this case is whether the appellant Reginald between federal authorities, and state fed- D. McGlory received constitutionally ade- pretrial eral detainees are often housed quate notice for the administrative forfei- state detention facilities. ture of certain property by officers McGlory was indicted aby grand federal of the Drug Enforcement Administration 4, on jury October 1989. He was charged (“DEA”). possession with of a firearm after having McGlory arrested, tried, was convicted, been convicted of a felony, conspiracy to and sentenced to life imprisonment fоr heroin, distribute and possession of heroin various drug and firearm offenses. Inci- with intent to distribute. McGlory pled dent to his arrest various of his property not guilty, and the court by ordered a trial was seized and most of the seized proper- jury to begin 11, 1989, December ty, but apparently all, subjected was to was later 20, continued February administrative or forfeiture by the 13, On December the government McGlory DEA. first challenged the forfei- filed a superseding indictment which add- ture filing a motion for return of prop- ed additional criminal charges against erty pursuant to Rule of the Federal McGlory. McGlory arraigned was on the Rules of Criminal Procedure. we Before superseding indictment on December can consider adequacy the particular 1989. He again pled not guilty to each administrative forfeiture notices that are charge. McGlory’strial began on April the subject of appeal,1 we must decide 16, 1990, 1990. On May jury returned whether the District Court jurisdiction its verdict finding McGlory guilty of each McGlory’s consider Rule motion. charges forth set in the superseding Only if it had can we consider the impor- indictment. tant, narrow, albeit issue whether ade- quate McGlory of administrative sentenced on February proceedings is provided to a 1991 and prisoner who remanded the custody is in local detention the Bureau facilities Prisons less than two weeks the notices to an office of the later. He therefore remained the custo- States Marshals Service. dy of the United States Marshals Service from the date of his arrest on Septеmber I. 1989 until February all almost September 8, 1989, On agents and of that time as pretrial detainee. McGlo- local Pittsburgh officers McGlory arrested ry has stated during that this time he was for conspiracy possess heroin in- housed in pretrial various detention facili- tent to distribute. time, At that ties, and pur- but he neither nor suant warrants, search the officers introduced evidence of facilities seized property, cash, including from which he was confined or the dates of his 1. Also before en banc court are though consoli- appeals those involve the identical appeals dated in United States v. One parties Toshiba patterns similar fact as the pres- Television, Machines, Color Answering Two appeal, ent they raise legal distinct issues One Tech Cоmputer, Health and United will be separate addressed hereafter opin- Jewelry, States v. Assorted 183 F.3d 866. Al- ion. receipt by certified sent court This facility. each confinement McGlory to or in addressed requested, McGlory’s record reviewed has the United care references finds trial criminal located 7th courthouse the federal- September on detention initial Pennsylva- Pittsburgh, Street, Grant December thereafter 1989 and between mailed were Those notices Jail, nia. Virgi- West County in Hancock November September detained suggests nia, which he received claims encompass- This period. there notices. these of none purpose period relevant es to show otherwise. attempt made no references other note We appeal. May approximately suggest the re steps for take did not 2, 1990 he August at least 18, 1990 until 11, April until property seized turn of the Jail, Ünion- County Fayette housed was se motion pro filed he when 1994 9, November By town, Pennsylvania. of the seized 41(e) return for the Rule the Ohio to moved 1990, had been he completion after This was property. Virginia. West Wheeling, County Jail Febru on proceedings trial the criminal been in 1991, 22, February Since 1995, 3, February 11, On 1991. ary Bureau by designated prison federal McGlory’s Rule referred District Court imprison- life term serving his Prisons the seized return 41(e) for the motion (b). 3621(a) and 18 See U.S.C. ment. for a re Judge Magistrate ato property the mat While recommendation. and port began, trial criminal McGlory’s Before court decided pending, was ter in the McGlory was time Currency, 72 $184,505.01in U.S. v. the United custody of Cir.1995), challenge another 1160 F.3d administrative Service, initiated DEA forfeitures, where McGlory to different by prop- regarding proceedings forfeiture McGlory to given the notice held that we numbers seizure by DEA erty covered proceed forfeiture -judicial in two of three (assorted cloth- cash), ($8,800 65613 52425 De On satisfy did not ings 66651 (Louis luggage),2 Vuitton ing), Judge 1996, Magistrate 17, cember (Louis luggage/briefcase), Vuitton McGlo- recommending that (cellular report filed (miscellaneous jewelry), and without 41(e) denied motion Rule ry’s phone).3 actions. forfeiture judicial to prejudice of these ad- provided DEA The District 1996, 30, December On proceedings forfeiture ministrative and Recommen Report on ruled Court no- by published One methods. three a motion filed dation, MсGlory’s counsel circulation. general newspaper in a tice Rule amended file an permission certified also sent The pro any further stay motion 41(e) last McGlory’s requested, receipt 41(e) se Rule pro McGlory’s ceedings on Avenue, Negley 236 S. address known motion. mother’s and his Pennsylvania, Pittsburgh, 1997, Court 3, District January Road, On Pitts- Bryn Mawr at 4267 residence Judge Magistrate determined the DEA Finally, Pennsylvania. burgh, individuals from zure numbers throughout misnamed luggage is The McGlory does not McGlory, name than brand other The Vitton. Louis as record well known addi- appeal. is Louis name the accurate otherwise contend tion, other Vuitton. one that has automobile (66645) a Nissan involved administra- also initiated 3. The lienholder, McGlory been returned regarding eleven proceedings tive forfеiture numbers among seizure list this not did numbers: DEA seizure other 73402, Appellant’s Brief appeal. See challenged on 64563, 68740, 4.at sei- at these listed property contends 41(e) “correctly Appellate the Rule motion” Federal Rule denied Procedure plaintiffs that “the 4(a) ordered Rule provides appeal that a notice filed prejudice without motion dismissed disposition before the of one of the motions civil pending forfeiture actions.” Unit 4(a)(4)(A), specified in Rule including 89-144, op. ed States No. McGlory, Slip 59(e) motion, Rule will become effective (W.D.Pa. 1997). Jan. The court upon entry of disposing the order opined “[t]he administrative forfeiture motion. Because filed his notice proceedings did not suffer from the same appeal January the court’s problem defective notice order while the Rule motion was see proceedings, United States pending, appeal the notice of became effec- $184,505.01 Currency, in U.S. on September tive 1998—the date the (3d Cir.1995), since petitioner person District Court entered its order denying ally with notice of served those actions.” that motion. See Fed. P. RApp. added). at 2 (emphasis Id. did court 4(a)(4)(B)(i). However, in order contest explain “personal what constituted the 59(e) motion, the denial aof Rule new referred, service” which it appeal amended notice of must be filed. nor did expressly it rule on Thus, when the District denied Court 41(e) an motion to file amended Rule mo 59(e) McGlory’s Rule September motion on tion. 22, 1998, McGlory proceed could with his 1997, January On McGlory, appeal of the January deny- 1997 order counsel, through a filed motion for recon 41(e) ing his Rule motion without further January sideration the of 1997 order filing, but if he wanted the en- appeal to 41(e) denying his Rule motion. On Janu compass any challenge to the of order 14, 1997, ary filed notice of appeal 22,1998, September required he was file from that same order without for waiting an amended notice appeal. of See Fed. any order from the District Court. We 4(a)(4)(B)(ii). R.App. P. He failed to do so. stayed appeal pending the resolution of the reconsideration, motion for which the Dis Patently, McGlory’s original 22, 1998, September trict Court denied on appeal January from the 1997 order when it adopted also Magistrate the jurisdiction could not confer over the Dis- Judge’s Report and Recommendation on September trict Court’s 1998 order de- range wide relating issues to the forfei nying reconsideration. See United States parties tures. Both assume that we have Co., v. Rivera Construction 863 F.2d jurisdiction to review the District Court’s (3d Cir.1988) (“However, where the order of September 1998. We do not. judgment or order upon which the appel- McGlory only appealed the January lant seeks review directly is neither nor 1997 order. indirectly ap- referred to the notice of The Federal Rules of Civil Procedure do peal, then the issue is not fairly raised and specifically refer to a motion to recon Appeals Court of acquire does not motions, sider but such if filed within ten (internal omitted). jurisdiction.”) quotаtion days judgment, generally are as treated We therefore must limit our review to the motions to alter or judgment amend merits of January deny- 1997 order 59(e) Rule of the Federal Rules of Civil 41(e) ing McGlory’s Rule motion. It fol- Procedure. See Kemper Federal Ins. Co. lows disposition District Court’s Rauscher, 807 F.2d Cir. (such laches) certain issues as 1986); its Memo- Bartlett, Campbell v. 22, 1998, randum (10th Cir.1992). September Order of 1580 n. 15 We therefore analyze McGlory’s reconsider, adopting Report motion to Recommendation which timely, though as of the Magistrate Judge, he had it filed is not properly 59(e). under Rule before us. granted, is motion If the motion. II. be returned shall property in its brief states The government movant.... sub- lacked have may court district “[t]he 41(e). FecLR.Crim.P. entire over jurisdiction

ject-matter 41(e) requested weAs motion at 19. Rule Brief McGlory's claim.” property it is position, government government’s understand by the be- lacking both and forfeited may be from him seized jurisdiction judicial proceedings,4 to an admin- challenge is McGlory’s in administrative cause him for because property as well istrative been completion proceedings no forfeiture after which was filed motion government We for proceedings. criminal instituted underlying accounting. whether to provide considered has failed previously have not Rule over jurisdiction lacks court district con- property civil forfeiture ‍​‌​‌‌​​‌‌​​​‌​​​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌‌‌​‌‍The grounds. of these either on motion drug transactions the proceeds stitutes 881(a).5When § by 21 U.S.C. authorized provides: Rule less, $500,000 property the seized an unlawful aggrieved person A use may deprivation byor and seizure search cus- by the governed court the district may move property no entails laws; toms property in which district for the 1607;6 § See U.S.C. involvement. property the return was seized re- 881(d).7 U.S.C. is enti- that such ground on the its intent publish quired property. possession lawful tled to three a week for once property any forfeit evidence receive court shall any to notice written and to send weeks of decision necessary to the fact of issue together of seizure Written direct. renewed McGlory has not appeal, In this proce- applicable the on with information judi- provided in the challenge to ap- who party to each be sent shall dures is- although that proceedings, forfeiture cial arti- the seized in an interest pears to have appeals the related court sue is . cle. supra. 1 in note to referred 881(d) stales: 7.Section part: 881(a) pertinent provides 5. Section relating the sei- to law provisions of subject to forfeiture following be shall forfeiture, and zure, judicial summary and property and no States United of for violation property condemnation ... them exist in shall laws; of such disposition instruments, se- customs negotiable (6) moneys, All from sale proceeds or property furnished curities, things of value or other mitigation thereof; or the remission any person furnished to be or intended forfeitures; compromise and or substance such a controlled exchange for forfei- and apply to seizures subchap- shall clаims in violation chemical listed incurred, been in- have alleged to or an ex- tures ter, to such traceable proceeds all of this curred, provisions any instru- under negotiable moneys, change, all and not applicable subchapter, insofar to be ments, or intended used and securities hereof; ex- provisions with sub- of this inconsistent any violation to facilitate used upon imposed as are duties such cept that chapter .... any other or officer customs provides: and forfeiture 1607 the seizure respect 6. Section with property shall laws customs under the vessel, vehi- value such If ... for- respect to seizures performed merchandise, aircraft, baggage does cle, or subchapter property feitures [,] $500,000 approрriate ... exceed officers, persons as other agents, or by such of the a notice cause shall officer customs for that designated or may be authorized intention articles of such seizure General, except to Attorney by the purpose dispose sell otherwise forfeit sei- arise duties such extent published according to law be same by any cus- effected forfeitures zures man- in such weeks successive three least officer. may toms Treasury Secretary of the as the ner mechanism], in the party known have interest courts have entertained chal- 1607(a). § If a property. See U.S.C. notice, lenges to the adequacy reasoning claimant files a claim and a cost bond that the mechanism not available to a days publication, within 20 after the first plaintiff properly who is not notified of the administrative halted process is forfeiture.”). pending seizing agency must turn the matter Further, those al- courts have Attorney over to the United States com- judicial lowed limited review of an adminis- judicial proceeding, mence a see trative forfeiture proceeding pro- § procedure which is the U.S.C. automatically grounds for property followed valued cess have also ruled that a Rule $500,000. 41(e) § over See 19 U.S.C. 1610. If a motion filed after criminal proceed- claimant fails file the bond to contest ings have terminated is an acceptable forfeiture, the seizing agency will make obtaining example, means of review. For a declaration of forfeiture and title will Appeals the Court of for the First Circuit vest the United States. See U.S.C. proceed- has held that criminal “[w]here 1609(a). § This administrative declaration ings against the already movant have been has the same effect as final decree and completed, a district court should treat a order forfeiture entered in a rule motion as a civil complaint.” 1609(b). proceeding. See 19 U.S.C. Giraldo, United v. States 45 F.3d

A ordinarily district court lacks (1st Cir.1995) (internal omitted). quotation jurisdiction to review the DEA’s adminis agreed. Weng Other courts have See trative proceedings. See Lina States, United 137 F.3d 711 n. 1 Justice, rez v. United Dep’t (same); Clark, (7th Cir.1993) (“[0]nce (10th Cir.1996) (same); government initiates an administrative for Woodall, 12 F.3d at 794 n. 1 (holding that feiture proceeding the property is not Rule pro motion filed se subject of an ongoing proceed criminal plaintiff after criminal proceedings have ing, jurisdiction the district court loses liberally ended should be construed as resolve the issue of property.”). return of seeking remedy); to invoke the proper However, “the federal have courts univer Martinson, v. 809 F.2d sally upheld jurisdiction to review whether (9th Cir.1987) (holding 1366-67 that a dis- an administrative forfeiture satisfied statu jurisdiction trict court has a over motion to tory process and due requirements.” property styled return as a Rule Woodall, United States motion, and should treat such motion as a (8th Cir.1993) cases). (citing equitable civil proceeding). jurisdic Some courts have equity found tion appropriate to review a claimant’s find reasoning We of these challenge tо the sufficiency of the notice persuasive cases now hold that a dis theory that a claimant who received jurisdiction trict court has to consider inadequate adequate notice lacked an rem person claim that a inadequate received edy at law. Clagett, See United States v. notice completed administrative forfei (9th F.3d (reasoning proceedings, ture notwithstanding “[i]f notice of pending forfeiture styled claim was aas Rule motion inadequate, was ... then the forfeiture and filed after criminal proceedings proceeding was never available to [the completed. Accordingly, been we conclude any sense.”); in meaningful claimant] Sar jurisdiction that the District Court had to Drug Admin., it v. U.S. Enforcement (1st Cir.1993) (“Whereas McGlory’s consider claim that received most challenges inadequate notice of the DEA’s to forfeiture would be adminis foreclos ... by statutory ed failure to utilize [the trative proceedings. The District Court did not meet

III. directly January in its order of issue issue turn to the narrow We thus us, only properly order before pre whether appeal: us on this McGlory personally it found custody of the Marshals detainee in trial of the administrative served with notice to have has a due McGlory consistently has forfeitures. proceed administrative notice of personally that he was not maintained forfeiting agency direct by the ings mailed served; further, government does even the at the institution pretrial detainee ly “personally McGlory not contend that proce being housed. where s/he (the used the District language by served” case, by DEA in this dure followed Court) delivery Although to him. by to mail general practice, was apparently its to the Marshals DEA’s notices were sent to to detainee a notice addressed re- receipt return Service certified at in its office care of Marshals Service quested, allegedly the Marshals Service courthouse, practice Pittsburgh to remailed them first class mail McGlory comport contends does not prison he was de- at noted, govern- previously tained. As pro- that due government argues produced any receipts ment has not sending notices cess was satisfied signed by McGlory. ‍​‌​‌‌​​‌‌​​​‌​​​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌‌‌​‌‍because under the Marshals Service governing The statute “any procedure offiсe Service’s standard requires, to notice forfeitures addition addressed to correspondence notice ... by publication, “[w]ritten ... ... forwarded custody [was] an interest party appears each who to have of confine- recipient, intended 1607(a). in the seized article.” 19 U.S.C. ment, mail, postage prepaid.” by first class must That be one that satisfies Richards, Depu- Gary Chief Declaration of beyond perad- the Due Process Clause is Service, App. United States Marshals ty, ago, Supreme A century venture. half contrast, “that argues, elementary and Court declared that “[a]n satisfy require- constitutional in order requirement fundamental ments, required to address accorded any proceeding which is containing mail the notices to the сertified calculated, reasonably un- finality [McGlory] prison govern- at the where the circumstances, inter- apprise all the der confining McGlory’s him.” Re- ment was pendency the action parties ested see also 7-8; ply Opening Br. at opportunity present and afford them an 19-20,8 joined parties are Br. Thus Mullane Central objections.” their issue on the whether Co., Hanover Bank & Trust 389 U.S. under the Due responsibility fulfilled its (1950). 865 70 94 L.Ed. S.Ct. notice give Clause to reasonable Process in Robinson later, years by relying Twenty-three on the circumstances Hanrahan, 34 U.S. 93 S.Ct. forward notice 409 (1972), 47 the Court addressed in L.Ed.2d government, detainee when whose forfeiture, committed, a notice of question whether custody the detainee by the prisoner’s home address the de- mailed to uniquely well situаted ascertain custody the government entity in whose tainee’s whereabouts. steps additional increase in al notice or take 8. Because has not contended his notice, prisoners in process required actual appeal the likelihood of brief on this Pennsylva- custody. sending See than certi- its Commonwealth more of Dep't Public v. United States receipt requested, to him at nia fied Welfare Servs., confinement, Dep’t Health & Human we are not faced his (3d (argument proper- not in before the court issue 98-3579, ap- ly waived on Jewelry, raised in brief deemed No. name- States v. Assorted peal). ly, government must actu- ensure whether prisoner held, was constitutionally suf that Robinson and together Adams re- brief, ficient. In a per opinion, curiam quired that the at least make Court, repeating the language Mul an attempt from to serve him with notice lane quoted above, that it held was not: proceedings in prison.” Id. at added). 1163 (emphasis case, In the instant Robinson alone State knew should dispositive be appellant of the issue at the in address to case.

which the and, notice was mailed more- over, knew also that appellant could not The government cites no authority, and get to that address since he was at that we are none, aware of that suggests that very time confined in the County Cook the forfeiting agency may delegate its re jail. Under circumstances, these it can- sponsibility by mailing notice to the Mar not be said that the State made any shals Service in Pittsburgh when thе for provide effort to notice which was “rea- feiting agency is aware that the intended sonably calculated” apprise appellant recipient is confined elsewhere. Even as of the pendency of the pro- suming arguendo that mailing the notices ceedings. to the Marshals Service is more likely to reach prisoner than Id. at them to S.Ct. In so ruling, the address, last known $184, the defect in suggested Court that the notice provided 505.01, it is still inadequate when gov “with respect to an individual whose name department ernment or agency responsible and address are known easily ascertain- notice, giving DEA, here the able,” id., knows or must such notice that can be can quickly and easily obtain the place put to practical use. It citеd its earlier prisoner is confined. decision in Covey Somers, v. Town U.S. S.Ct. 100 L.Ed. 1021 The constitutional imperative derived (1956),where it held that even mailing of Mullane and Robinson and their foreclosure was inadequate if progeny plainly suggests that in order to individual involved was incompetent give notice that meets the requirement of without protection of a guardian. due process, Con- the agency responsible for sistent with the principle enunciated sending must, least the first cases, these the Court instance, stated Mennonite address and direct notice to the Adams, Board Missions v. detainee U.S. at his place of confinement. This 103 S.Ct. (1983), L.Ed.2d 180 hardly imposes an onerous burden as the “[njotice by mail or other means as did fact mail notices to McGlory. certain ‍​‌​‌‌​​‌‌​​​‌​​​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌‌‌​‌‍to ensure actual notice is a mini- Its deficiency inwas not mailing them to mum constitutional precondition to a pro- McGlory’s place of confinement. Rather ceeding which will adversely affect the than lib- the two step here, followed erty or property of any interests party ... which entailed mailing McGlory’s notices if its name and address are reasonably the Marshals Service in Pittsburgh and omitted). ascertainable.” (emphasis relying on it to remail them to McGlory at the institution where he was detained, We took then guidance from these cases in the DEA could have ascertained $184,505.01 United States v. in U.S. Cur whereabouts at the relevant time rency, 72 F.3d from the Cir.1995), a case (which Marshals Service acts as the involving an locator earlier set of forfeitures оf for all persons in federal custody) other of McGlory’s and property. case, that mailed its notices to him government directly. the sent notices to McGlory’s last known address but made no attempt It is not a novel proposition to hold that to reach him at place his of confinement. process due requires that notice to prison- We held this attempt inadequate under ers be directed and mailed prisoner Robinson and Board, Mennonite stating, where detained. Numerous decisions by “McGlory argues, in our view persuasively, other courts of appeals See, so hold. e.g., 709, 714 more States, F.3d Weng v. United directly to detainee the notices mailing the justifying Cir.1998) (“Absent special (2d place. be asked can in the first circumstances, least that the dеter agency] forfeiting [the is that ... that in this case suggestion no is There and detained claimant the where mine ra- with such about moved McGlory was institution.”); the notice to the send possible not have been it would pidity 378, 381 Clark, 84 F.3d States United of the All with him. up catch mail for (“When Cir.1996) government (10th the at issue notices incarcer party is an interested aware September mailed between here were attempt ... an requires ated, process due rec- little 1989. What November Tor prison.”); with to serve him that McGlo- is suggests there evidence ord Currency, 25 F.3d $36,256.80 U.S. res v. this time was moved ry not (“[I]f Cir.1994) the DEA 1154, Attorney’s office U.S. at the least actual notifi give [claimant] desired had part least for at McGlory was where knew of Pris to the Bureau cation, simple call Re- Information See Case time. to reveal where sufficed have would ons Con- Attorney William sentence.”). ports filed U.S. Unit serving his [he] Cf. and December on October ley F.3d Property, v. Real ed confine- place of listing process (9th (rejecting due McGlor/s alia, sent, County Jail. inter as Hancock ment when notice challenge was con claimant institution make not even Moreover, DEA did fined). at him his to reach attempt an that be- argues also required confinement, held was as we moved are often pretrial detainees cause process at Due $184,505.01,72 1163. facilities and detention between infallible method require does DEA after moved been have could relying But notice. giving and sent the his whereabouts ascertained apparently which policy, Service Marshals Sеr- the Marshals via mail, “sending notice instances, six in these failed efficient reasonable the most vice “reasonably calcu more method hand a at provide DEA to available means circumstances, ap lated, all the adminis- notice of its actual pendency parties interested prise 23. at brief actions.” trative 314, 70 Mullane, U.S. action.” Ser- Marshals that the assume if Even we in Mul- Court Supreme As the S.Ct. re- policy its actually followed vice person’s is a stressed, “when lane notices, mailed is not gesture is a mere due, evidence, using the such no introduced must employed means for forfei- conduit as a Service Marshals actually inform as one desirous such than rather exacerbate may notices ture adopt reasonably might ing absentee solve. designed to it was problem cure 315, 70 S.Ct. U.S. it.” 339 accomplish after the moved have been McGlory could actually “desirous who was 652. One And the mail. itself sent Service Marshals taken have McGlory would informing” the chain Service adding the easily ascertainable to ascertain time agen- number duplicates mailers would, at the whereabouts fact increasing mail, thereby handing cies him at notices least, have directed error, doubles possibility address.9 hardly a receipt which until his time Service, Mail Domestic Postal United States press McGlory did not argument, At oral (on (12/2/1999) Manual, S912.1.1 Issue the use mandates position that the Postal As http://pe.usps.gov/). the Web ordinary first class opposed to certified advantage of principal explаins, dispatched fact, mail is “[certified mail. ("Certi- evidentiary. Id. is type of service ordinary mail.” as transit in handled 674 that, minimum, provided

We thus hold notice of forfeiture agree process requires person majori- that when a is this case. I cannot with the government’s custody ty’s in the decision this issue because it and detained seems place choosing, plainly at a of notice to me to with the its of inconsistent pending proceed legal majority administrative forfeiture rule on which the purports rely. ing According majority, must be mailed to detainee at “due place process requires or her of confinement. Whether that when a inis government’s presently custody not anything required more and detained choosing, in this appeal. place pending before us of its notice of a proceeding administrative forfeiture must IV. be mailed to the detainee at his or her Maj. of Op. confinement.” at 673-74. For the reasons set forth we will vacate precisely may That well what have 3, January the District Court’s order of case, happened in this yet majori- granting summary judgment 1997 ty holds that the manner in which notice government with regard to seizure given here violated due 52425, 65613, 66651, 65615, numbers 65323 and 67065 remand to District view, majority’s In the following pro- proceedings Court for further consistent cedure should have been An used. em- opinion.10 with this ployee Drug of the Enforcement Adminis- (a component tration of Department of ALITO, Judge, with whom Circuit Justice) should have ascertained BARRY, Judge, joins, dissenting: Circuit (another United States Marshals Service Justice) judgment I dissent from of component Department the court of the of part and from III opinion, McGlory of court’s was held at the various the constitutionality concerns times in question1 and then no- sent the Co., provides mail fied service the sender awith Central Hanover &Bank Trust 339 U.S. receipt, 306, 318-19, kept delivery and a record is 70 S.Ct. 94 L.Ed. 865 address.”). post (trust (1950) office of beneficiaries had to be notified Although by ordinary we have at "at least times noted the obvi mail” ... which is "rec evidentiary ognized registered inexpensive ous mail, value ‍​‌​‌‌​​‌‌​​​‌​​​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌‌‌​‌‍certified or efficient and means communication”). required we have not notice be effect See, e.g., Paper ed in that manner. Zimmer Prods., 10. We P.C., note the District Court’s order of Berger Montague, Inc. v. & 758 January McGloiy’s (3d Cir.1985) (first did address F.2d 91-93 class mail рroperty claim to he contends was but publication seized provided adequate notice subjected never suit); Smith, class action v. forfeiture, although McGlory Cir.1968) (3d (notice did raise the is- F.2d 176-78 Magistrate sue his Rule motion. The proceeding divorce need not be sent certi 23, 1998, Judge's also, report mail); July adopted by registered e.g., fied or see DePiero Macedonia, September the District Court in its City v. & 788-89 denying order eration, (6th Cir.1999) motion for (notice reconsid- n. to contest items, did address mail); ten household parking may ticket be sent first class having DEA, determined that the v. F.3d Armendariz-Mata properly (5th Cir.1996) ("Under circumstances, accounted all but two of the ten most items, disputed govern- determined by ordinary mail is sufficient to dis sys- ment should return stereo charge government's obli tem and camera which were York, seized but never gations.”); Weigner City v. New forfeited or the (notice value these items. The 650-51 tax remaining twenty-six status of the mail). items that may regular foreclosure be sent Nor McGlory claims were also but not for- Supreme suggested has the Court a distinc feited is not before us. The District Court magnitude tion of constitutional between may See, them on remand. address types e.g., these mail. Tulsa Prof'l Servs., Pope, Collection Inc. 485 U.S. (1988) 108 S.Ct. appeal L.Ed.2d 565 1. At no time dis- ("notice by mail” provide puted sufficient to actual the fact that moved from one probate proceedings); facility period. Mullane to another the relevant Marshals DEA, than the rather case the those McGlory at forfeiture of tices States, Weng v. United Instead, Cоmpare this Service. mail. by first-class locations (3d (treating the of employee An happened. what is DEA, and anoth- the forfeiting agency, the Marshals the notices sent the DEA Department, McGlo- Justice custody of of the component Service, legal er which times, Prisons, entity for as one all at of location the Bureau his exact ry, knew require- responsibili- process of experience purpose due the has extensive The prop- of of service relating to the ments in ties however, detainee). Ser- by the Marshals majority, received The were erty notices of mail re- certified (the produced requirement, for this vice no reason provides issue), and, if at the notices it. all of basis for ceipts for is no there constitutional its standard followed brought Service Marshals were proceedings The forfeiture forwarded Service States, the Marshals I fail practice, United of the in the name recipient, intended “to the the notices process due for it why matters to see confinement, class by first of place his were mailed the notices whether purposes In- at 104. App. mail, prepaid.” postage DEA or working for the person aby for the Marshal deed, Deputy the Chief the no- that Suppose Service. Marshals affirmed Pennsylvania of District Western employee by an been mailed tices had “to the question time during the that office or Attorney’s States the United belief, the knowledge and of [his] best Division of the Criminal employee United of the procedures оffice standard Washington. of Justice Department followed, were Service Marshals constitution- the notices make that Would was forward- correspondence such and all ally inadequate? place McGlory at D. Reginald toed ma- for the ground possible The other postage first class by confinement Executive is internal Thus, if decision jority’s the Chief Id. prepaid.” majority opines The efficiency. knowledge Branch belief Marshal’s Deputy practice “adding the the standard correct are followed, notice the number duplicates mailers chain the Marshals Service in- mail, thereby McGlory at handling was mailed agencies forfeitures error, dou- first-class by possibility of confinement creasing his place says majority [by receipt ... whаt precisely time until bles the mail — if even But demands. at 673. process Maj. Op. that due detainee].” purposes for true, not matter it does is majority think then, Why, does matters What Clause. Due Process majority The was violated? process is that notice is purposes for due ma- explanation. express no provides place at right mailed to in fact possi- hint at two appears opinion jority met, are requirements those If time. support- neither but explanations, ble government internal inefficiency in the any may believe First, majority able. ais toup leading procedures to the sent that the notice it is essential Executive, the Judicia- matter “the confinement place detainee’s ry.2 in this Maj. Op. agency,” forfeiting decision its suggestion that mаjority's 2. shortly Indeed, filed a submission Hanrahan, U.S. supported Robinson McGlory stated: argument, en banc (1972), and L.Ed.2d S.Ct. Mr. fit to house saw "[T]he $184,505.01, 72 F.3d 1160 custody in their he was McGlory while cases Both Cir.1995), plainly incorrect. state at a number period facilities violated held contract apparently under were home was sent pris- federal government to house federal incarcerated, who was aof address Letter- Oct. Appellant's oners.” being where he than rather added). (emphasis Brief at knew held, though even sum, the en banc majority has ren-

dered a decision that by the Mar- mailing SUAREZ CORPORATION INDUS Service, DEA, shals opposed TRIES; Sonny Clopper; Emerson Pa Constitution, violates the but majority Clopper; tricia Pishner, Elizabeth say why, fails to plausible and no explana- Plaintiffs-Appellees, tion is apparent. I urge majority explain why it matters for process McGRAW, Jr., Darrell V. Attorney Gen purposes whether the notices were sent eral of the Virginia, State of West the DEA or the Marshals Service. Since capacity; his official Rodd, Thomas the majority yet to offer expla- such an individually, Defendants-Appellants, nation, and since none apparent, ‍​‌​‌‌​​‌‌​​​‌​​​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌‌‌​‌‍I would hold, contrary to the majority, that due process was satisfied in this provid- case— Doe, III, John individually, I — ed that the Marshals Service followed its Defendants, practice standard and sent the notices question McGlory by first-class mail at Tinder, Party Thomas in Interest. places confinement. It is No. far 98-2696. from clear that McGlory has raised on appeal the argument that in fact the Mar- Court of Appeals, shаls Service did not follow its standard Fourth Circuit. practice respect to the notices in question,3 but I give would him the benefit Argued: Oct. of the doubt on this point and remand for a Decided: Feb.

factual finding the District Court. If the District Court finds that the Marshals notices, never sent the I would

agree with majority due process provided.

was not But if the Court finds the Marshals Service did send the

notices, I would hold that

satisfied. the detainee custody. was in Rather, Neither case the main thrust of argu- anything to do with presented the issue ment, majority’s like the analysis, focuses on here, viz., whether due was violated DEA, the conduct of the and he contends that DEA,

because the instead of the for- the DEA’s mailing the notices to the actions'— feiture directly McGlory’s place notices of Marshals Service'—were constitutionally inad- confinement, mailed them to the Marshals equate. Service, Service, and the Marshals if it fol- practice, lowed its standard then forwarded McGlory. them to

Case Details

Case Name: United States v. Reginald McGlory

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 1, 2000

Citation: 202 F.3d 664

Docket Number: 97-3057

Court Abbreviation: 3rd Cir.