Title United States v. McGlory
Date 2000
By
Subject Other\Dissenting
Contents
Page 1
24 of 79 DOCUMENTS
UNITED STATES OF AMERICA v. REGINALD MCGLORY, Appellant
No. 97-3057
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
202 F.3d 664; 2000 U.S. App. LEXIS 1262
November 8, 1999, Argued en banc
February 1, 2000, Filed
SUBSEQUENT HISTORY: **1 As Amended
February 7, 2000. Rehearing En Banc Granted July 8,
1999, Reported at: 1999 U.S. App. LEXIS 37164. PRIOR HISTORY: 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. DISPOSITION: Vacated and remanded. CASE SUMMARY:
PROCEDURAL POSTURE: Appellant prisoner argued that he had not received constitutionally adequate notice for the administrative forfeiture of certain property seized by the Drug Enforcement Administration, and appealed an adverse ruling from the United States District Court for the Western District of Pennsylvania, dismissing ap- pellant's motion under Fed. R. Crim. P. 41(e).
OVERVIEW: Appellant was arrested, and eventually sentenced to life imprisonment for various drug and firearm offenses. Before the trial, substantial amounts of property were seized from appellant and his relatives, and subjected to administrative forfeiture by the Drug Enforcement Administration (DEA). Before appellant's criminal trial began, and while he was in the custody of the United States Marshals Service and apparently held in a West Virginia state prison, the DEA initiated administra- tive forfeiture proceedings regarding the property it had seized. The DEA provided notice of the administrative forfeiture by publication, by certified mail, return receipt requested, to appellant's last known address, his mother's residence, and addressed to appellant to or in care of the United States Marshals Service. Appellant claimed he re- ceived no notice and sought relief, initially under Fed. R. Crim. P. 41(e). The court of appeals held that due pro- cess required that a prisoner receive notice at his place of confinement.
OUTCOME: The judgment was vacated and remanded. At a minimum, due process for a prisoner in custody and detained at a place of the government's choosing required that notice of a pending administrative forfeiture proceed- ing be mailed to appellant prisoner directly at his or her place of confinement.
LexisNexis(R) Headnotes
Civil Procedure > Relief From Judgment > Motions to
Alter & Amend
HN1 The Federal Rules of Civil Procedure do not specif- ically refer to a motion to reconsider but such motions, if filed within 10 days of judgment, are generally treated as motions to alter or amend judgment under Fed. R. Civ. P.
59(e).
Civil Procedure > Appeals > Reviewability > Notice of
Appeal
HN2 Fed. R. App. P. 4(a) provides that a notice of appeal filed before the disposition of one of the motions speci- fied in Fed. R. App. P. 4(a)(4)(A), including a Fed. R. Civ. P. 59(e) motion, will become effective upon entry of the order disposing of the motion.
Civil Procedure > Appeals > Reviewability > Notice of
Appeal
HN3 In order to contest the denial of a Fed. R. Civ. P.
59(e) motion, a new or amended notice of appeal must be filed after the denial order.
Civil Procedure > Appeals > Reviewability > Notice of
Appeal
HN4 Where the order or judgment upon which the ap- pellant seeks review is neither directly nor indirectly re- ferred to in the notice of appeal, then the issue is not fairly raised and a court of appeals does not acquire jurisdiction. Criminal Law & Procedure > Sentencing > Forfeitures
HN5 Fed. R. Crim. P. 41(e) provides: A person ag- grieved by an unlawful search and seizure or by the de- privation of property may move the district court for the
202 F.3d 664, *; 2000 U.S. App. LEXIS 1262, **1
Page 2
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.
Criminal Law & Procedure > Sentencing > Forfeitures
HN6 The civil forfeiture of property that constitutes the proceeds of drug transactions is authorized by 21 U.S.C.S.
§ 881(a).
Criminal Law & Procedure > Sentencing > Forfeitures
HN7 The civil forfeiture of property that constitutes the proceeds of drug transactions is authorized by 21 U.S.C.S.
§ 881(a). When the seized property is $500,000 or less, the government may use the administrative forfeiture pro- cess governed by the customs laws; this process entails no judicial involvement. 19 U.S.C.S. § 1607.
Criminal Law & Procedure > Sentencing > Forfeitures
HN8 The government is required to publish notice of its intent to forfeit property once a week for three weeks and to send written notice to any party known to have an interest in the property. 19 U.S.C.S. § 1607 (a). Criminal Law & Procedure > Sentencing > Forfeitures
HN9 If a claimant files a claim and a cost bond within 20 days after the first publication of an administrative forfei- ture, the administrative process is halted and the seizing agency must turn the matter over to the United States Attorney to commence a judicial forfeiture proceeding,
19 U.S.C.S. § 1608, which is the procedure automatically followed for property valued over $500,000. 19 U.S.C.S.
§ 1610.
Criminal Law & Procedure > Sentencing > Forfeitures
HN10 If a claimant fails to file a bond to contest an administrative forfeiture, the seizing agency will make a declaration of forfeiture and title will vest in the United States. 19 U.S.C.S. § 1609(a). The administrative decla- ration has the same effect as a final decree and order of forfeiture entered in a judicial proceeding. 19 U.S.C.S. §
1609(b).
Criminal Law & Procedure > Sentencing > Forfeitures
HN11 See 21 U.S.C.S. § 881(a).
Criminal Law & Procedure > Sentencing > Forfeitures
HN12 See 19 U.S.C.S. § 1607.
Criminal Law & Procedure > Sentencing > Forfeitures
HN13 See 21 U.S.C.S. § 881(d).
Criminal Law & Procedure > Appeals > Reviewability
> Forfeitures
HN14 A district court ordinarily lacks jurisdiction to re- view the Drug Enforcement Administration's administra-
tive forfeiture proceedings. Once 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 re- turn of property.
Criminal Law & Procedure > Appeals > Reviewability
> Forfeitures
HN15 The federal courts have universally upheld ju- risdiction to review whether an administrative forfeiture satisfied statutory and due process requirements. Criminal Law & Procedure > Appeals > Reviewability
> Forfeitures
HN16 A district court has jurisdiction to consider a claim that a person received inadequate notice of com- pleted administrative forfeiture proceedings, notwith- standing that the claim was styled as a Fed. R. Crim. P. 41(e) motion and filed after criminal proceedings had been completed.
Criminal Law & Procedure > Appeals > Reviewability
> Forfeitures
HN17 The statute governing administrative forfeitures requires, in addition to notice by publication, written no- tice to each party who appears to have an interest in the seized article. 19 U.S.C.S. § 1607(a).
Constitutional Law > Procedural Due Process > Eminent Domain & Takings
HN18 In order to give notice of administrative forfeiture proceedings 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.
COUNSEL: Michael A. Young (Argued), New York, NY, Attorney for Appellant.
Mary Houghton, Assistant United States Attorney, Harry Litman (Argued), United States Attorney, Bonnie R. Schlueter, Assistant United States Attorney, Pittsburgh, PA, Attorneys for Appellee.
JUDGES: Before: SLOVITER and ALITO, Circuit Judges, ALARCON, Senior Circuit Judge. * Before: BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, MCKEE, RENDELL, and BARRY, Circuit Judges. ALITO, Circuit Judge, with whom BARRY, Circuit Judge, joins, dissenting.
* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals for the Ninth Circuit, sit- ting by designation when this case originally was argued April 5, 1999.
202 F.3d 664, *; 2000 U.S. App. LEXIS 1262, **1
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OPINIONBY: SLOVITER
OPINION:
*666 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 con- stitutionally adequate notice for the administrative forfei- ture of certain property seized by officers of the Drug Enforcement Administration **2 ("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 by fil- ing a motion for return of property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. Before we can consider the adequacy of the particular administrative forfeiture notices that are the subject of this appeal, n1 we must decide whether the District Court had jurisdiction to consider McGlory's Rule 41(e) motion. Only if it had can we consider the important, albeit narrow, issue whether adequate notice of administrative forfeiture proceedings is provided to a prisoner who is in local detention facilities by mailing the notices to an office of the United States Marshals Service.
n1 Also before the en banc court are consoli- dated appeals in United States v. One Toshiba Color Television, Two Answering Machines, and One Health Tech Computer, No. 98-3578, and United States v. Assorted Jewelry, No. 98-3579 183 F.3d
866 (3rd Cir. 1999) . Although those appeals in- volve the identical parties and similar fact patterns as the present appeal, they raise distinct legal is- sues and will be addressed hereafter in a separate opinion.
**3
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 prop- erty, 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 his wife's residence at 285 Suncrest Drive in Verona, Pennsylvania. On September 15, 1989, the Magistrate Judge ordered that McGlory be detained by the United States Marshals Service pending trial. By arrangement between federal and state authorities, fed- eral pretrial detainees are often housed in state detention facilities.
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, conspir- acy 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 super- seding indictment which added additional criminal **4 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
202 F.3d 664, *667; 2000 U.S. App. LEXIS 1262, **4
Page 4
*667 confinement at each facility. This court has re- viewed the record of McGlory's criminal trial and finds references to McGlory's initial detention on September
11, 1989 and thereafter on December 11, 1989 in Hancock County Jail, West Virginia, which suggests that he was detained there during that period. This encompasses the relevant period for **5 the purpose of this appeal. We note other references that suggest that from approxi- mately May 18, 1990 until at least August 2, 1990 he was housed in Fayette County Jail, Uniontown, Pennsylvania. By November 9, 1990, he had been moved to the Ohio County Jail in Wheeling, West Virginia. Since February
22, 1991, he has been in a federal prison designated by the Bureau of Prisons serving his term of life imprisonment. See 18 U.S.C. § 3621(a) and (b).
Before McGlory's criminal trial began, and during the time McGlory was in the custody of the United States Marshals Service, the DEA initiated administra- tive forfeiture proceedings regarding the property covered by DEA seizure numbers 52425 ($ 8,800 cash), 65613
(assorted clothing), 65615 (Louis Vuitton luggage), n2
66651 (Louis Vuitton luggage/briefcase), 65323 (miscel- laneous jewelry), and 67065 (cellular phone). n3
n2 The luggage is misnamed throughout the record as Louis Vitton. The brand name is well known and the accurate name is Louis Vuitton.
n3 The government also initiated administrative forfeiture proceedings regarding eleven other DEA seizure numbers: 64582, 68735, 73402, 68730,
68719, 68727, 64563, 68740, 68729, 68743, and
72090. The government contends that the prop- erty listed at these seizure numbers was seized from individuals other than McGlory, and McGlory does not contend otherwise in this appeal. In addi- tion, one other administrative forfeiture (66645) in- volved a Nissan automobile that has been returned to the lienholder, and McGlory did not list this among the seizure numbers challenged on appeal. See Appellant's Brief at 4.
**6
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 re- ceipt 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 be- tween 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 prop- erty seized until April 11, 1994 when he filed a pro se motion under Rule 41(e) for the return of the seized prop- erty. This was after the completion of the criminal trial proceedings on February 11, 1991. On February 3, 1995, the District Court referred McGlory's Rule 41(e) mo- tion for the return of the seized property to a Magistrate Judge **7 for a report and recommendation. While the matter was pending, this court decided United States v. $184,505.01 In U.S. Currency, 72 F.3d 1160 (3d Cir.
1995), another challenge by McGlory to different forfei- tures, where we held that the notice given to McGlory in two of three judicial forfeiture proceedings did not sat- isfy due process. On December 17, 1996, the Magistrate Judge filed his report recommending that McGlory's Rule
41(e) motion be denied without prejudice to the judi- cial forfeiture actions. On December 30, 1996, before the District Court ruled on the Report and Recommendation, McGlory's counsel filed a motion for permission to file an amended Rule 41(e) motion and to stay any further proceedings on McGlory's pro se Rule 41(e) motion.
On January 3, 1997, the District Court determined that the Magistrate Judge
202 F.3d 664, *668; 2000 U.S. App. LEXIS 1262, **7
Page 5
*668 "correctly denied the Rule 41(e) motion" and or- dered that "the plaintiff 's Rule 41(e) motion is dismissed without prejudice to the pending civil forfeiture actions." United States v. McGlory, No. 89-144, Slip op. at 1, 4
(W.D. Pa. Jan. 3, 1997). The court opined that "the ad- ministrative forfeiture proceedings did not suffer from the same defective notice problem **8 as the judicial for- feiture proceedings, see United States v. $184,505.01 In U.S. Currency, 72 F.3d 1160 (3d Cir. 1995), since peti- tioner was personally served with notice of those actions." Id. at 2 (emphasis added). The court did not explain what constituted the "personal service" on McGlory to which it referred, nor did it expressly rule on McGlory's motion to file an amended Rule 41(e) motion.
On January 13, 1997, McGlory, through counsel, filed a motion for reconsideration of the January 3, 1997 or- der denying his Rule 41(e) motion. On January 14, 1997, he filed a notice of appeal from that same order without waiting for any order from the District Court. We stayed the appeal pending resolution of the motion for reconsid- eration, which the District Court denied on September 22,
1998, when it also adopted the Magistrate Judge's Report and Recommendation on a wide range of issues relating to the forfeitures. Both parties assume that we have juris- diction to review the District Court's order of September
22, 1998. We do not. McGlory only appealed the January
3, 1997 order.
HN1 The Federal Rules of Civil Procedure do not specifically refer to a motion to reconsider but such mo- tions, **9 if filed within ten days of judgment, are gen- erally treated as motions to alter or amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure. See Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348
(3d Cir. 1986); Campbell v. Bartlett, 975 F.2d 1569, 1580 n.15 (10th Cir. 1992). We therefore analyze McGlory's motion to reconsider, which was timely, as though he had filed it under Rule 59(e).
HN2 Federal Rule of Appellate Procedure 4(a) pro- vides that a notice of appeal filed before the disposition of one of the motions specified in Rule 4(a)(4)(A), including a Rule 59(e) motion, will become effective upon entry of the order disposing of the motion. Because McGlory filed his notice of appeal from the court's January 3, 1997 or- der while the Rule 59(e) motion was pending, the notice of appeal became effective on September 22, 1998 -- the date the District Court entered its order denying that mo- tion. See Fed. R. App. P. 4(a)(4)(B)(i). However, HN3 in order to contest the denial of a Rule 59(e) motion, a new or amended notice of appeal must be filed. Thus, when the District Court denied McGlory's Rule 59(e) motion on September 22, 1998, McGlory could proceed **10 with his appeal of the January 3, 1997 order denying his Rule 41(e) motion without further filing, but if he wanted the appeal to encompass any challenge to the order of September 22, 1998, he was required to file an amended notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(ii). He failed to do so.
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, HN4 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 Rule 41(e) motion. It follows that the District Court's disposition of certain issues (such as laches) in its Memorandum Order of September 22, 1998, adopting the Report and Recommendation of the Magistrate Judge, is not properly before us.
202 F.3d 664, *669; 2000 U.S. App. LEXIS 1262, **10
Page 6
*669 II.
The government **11 states in its brief that "the district court may have lacked subject-matter jurisdiction over the entire claim." United States Brief at 19. As we un- derstand 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 Rule 41(e) motion on either of these grounds.
HN5 Rule 41(e) provides:
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 re- turn 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. . . . Fed. R. Crim. P. 41(e).
McGlory's Rule 41(e) motion requested that the gov- ernment return property seized from him and forfeited by the DEA in administrative and judicial proceedings, n4 as well **12 as property seized from him for which no forfeiture proceedings had been instituted and for which the government has failed to provide an accounting.
n4 In this appeal, McGlory has not renewed his challenge to the notice provided in the judicial for- feiture proceedings, although that issue is before the court in the related appeals referred to in note 1 supra.
- - - - - - - - - - - - - - - ---End Footnotes- - - - -
- - - - - - - - - - - HN6 - HN7
The civil forfeiture of property that constitutes the proceeds of drug transactions is authorized by 21 U.S.C.
§ 881(a). n5 When the seized property is $500,000 or less, the government may use the administrative forfei- ture process governed by the customs laws; this process entails no judicial involvement. See 19 U.S.C. § 1607; n6
21 U.S.C. § 881(d). n7 HN8 The government is required to publish notice of its intent to forfeit the property once a week for three weeks and to send written notice to any
202 F.3d 664, *670; 2000 U.S. App. LEXIS 1262, **12
Page 7
*670 party known to have an interest in the property. See 19 U.S.C. § 1607 **13 (a). HN9 If a claimant files a claim and a cost bond within 20 days after the first pub- lication, the administrative process is halted and the seiz- ing agency must turn the matter over to the United States Attorney to commence a judicial forfeiture proceeding, see 19 U.S.C. § 1608, which is the procedure automati- cally followed for property valued over $500,000. See 19
U.S.C. § 1610. HN10 If a claimant fails to file the bond to contest the forfeiture, the seizing agency will make a declaration of forfeiture and title will vest in the United States. See 19 U.S.C. § 1609(a). This administrative dec- laration has the same effect as a final decree and order of forfeiture entered in a judicial proceeding. See 19 U.S.C.
§ 1609(b).
n5 HN11 Section 881(a) provides in pertinent part:
The following shall be subject to for- feiture to the United States and no property right shall exist in them . .
.
(6) All moneys, negotiable instru- ments, securities, or other things of value furnished or intended to be fur- nished by any person in exchange for a controlled substance or listed chem- ical in violation of this subchapter, all proceeds traceable to such an ex- change, and all moneys, negotiable in- struments, and securities used or in- tended to be used to facilitate any vio- lation of this subchapter. . . .
**14
n6 HN12 Section 1607 provides:
If . . . the value of such seized vessel, vehicle, aircraft, merchandise, or bag- gage 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.
n7 HN13 Section 881(d) states:
The provisions of law relating to the seizure, summary and judicial forfei- ture, and condemnation of property for violation of the customs laws; the dis- position of such property or the pro- ceeds from the sale thereof; the re- mission or mitigation of such forfei- tures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been in- curred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provi- sions hereof; except that such duties as are imposed upon the customs of- ficer or any other person with respect to the seizure and forfeiture of prop- erty under the customs laws shall be performed with respect to seizures and forfeitures of property under this sub- chapter 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 of- ficer.
- - - - - - - - - - - - - - - ---End Footnotes- - - - -
- - - - - - - - - - - HN14 -
**15
A district court ordinarily lacks jurisdiction to re- view the DEA's administrative forfeiture proceedings. See Linarez v. United States Dep't of Justice, 2 F.3d 208, 212
(7th Cir. 1993) ("Once the government initiates an ad- ministrative forfeiture proceeding and the property is not the subject of an ongoing criminal proceeding, the dis- trict court loses jurisdiction to resolve the issue of return of property."). HN15 However, "the federal courts have universally upheld jurisdiction to review whether an ad- ministrative 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 appropri- ate 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. Clagett, 3 F.3d 1355, 1356 (9th Cir. 1993)
(reasoning that "if notice of the pending forfeiture was in-
202 F.3d 664, *670; 2000 U.S. App. LEXIS 1262, **15
Page 8
adequate, . . . 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) **16 ("Whereas most challenges to for- feiture 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 ju- dicial review of an administrative forfeiture proceeding on due process grounds have also ruled that a Rule 41(e) motion filed after criminal proceedings have terminated is an acceptable means of obtaining review. For example, the Court of Appeals for the First Circuit has held that
"where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint." United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995) (internal quotation omitted). Other courts have agreed. See Weng v. United States, 137 F.3d 709, 711 n.1 (2d Cir. 1998)
(same); United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996) (same); Woodall, 12 F.3d at 794 n.1 (holding that a Rule 41(e) motion filed by a pro se plaintiff after criminal proceedings **17 have ended should be liber- ally construed as seeking to invoke the proper remedy); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987) (holding that a district court has jurisdiction over a motion to return property styled as a Rule 41(e) motion, and should treat such motion as a civil equitable proceeding).
We find the reasoning of these cases persuasive and now hold that HN16 a district court has jurisdiction to consider a claim that a person received inadequate no- tice of completed administrative forfeiture proceedings, notwithstanding that the claim was styled as a Rule 41(e) motion and filed after criminal proceedings had been com- pleted. Accordingly, we conclude that the District Court had jurisdiction to consider McGlory's claim that he re- ceived inadequate notice of the DEA's administrative for- feiture proceedings.
202 F.3d 664, *671; 2000 U.S. App. LEXIS 1262, **17
Page 9
*671 III.
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 no- tice 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 **18 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 of- fice in the Pittsburgh courthouse, a practice that McGlory contends does not comport with due process.
The government argues that due process was sat- isfied 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 certi- fied 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. n8 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 for- ward **19 notice to the detainee when the government, in whose custody the detainee is committed, is uniquely well situated to ascertain the detainee's whereabouts.
n8 Because McGlory has not contended in his brief on this appeal that due process required more of the government than sending certified mail, re- turn receipt requested, to him at his place of con- finement, we are not faced with the issue before the court in United States v. Assorted Jewelry, 183 F.3d
866, namely, whether the government must ensure actual notice or take additional steps to increase the
likelihood of actual notice, to prisoners in its cus- tody. See Commonwealth of Pennsylvania Dep't of Public Welfare v. United States Dep't of Health & Human Servs., 101 F.3d 939, 945 (3d Cir. 1996)
(argument not properly raised in brief is deemed waived on appeal).
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 **20 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 al- legedly 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.
HN17 The statute governing administrative forfei- tures requires, in addition to notice by publication, "writ- ten notice . . . to each party who appears to have an interest in the seized article." 19 U.S.C. § 1607(a). That this no- tice must be one that satisfies the Due Process Clause is beyond peradventure. A half century ago, the Supreme Court declared that "an elementary and fundamental re- quirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. **21 " Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed.
865, 70 S. Ct. 652 (1950).
Twenty-three years later, in Robinson v. Hanrahan,
409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30 (1972), the Court addressed the question whether a notice of forfei- ture, mailed to a prisoner's home address by the govern- ment entity in whose custody the
202 F.3d 664, *672; 2000 U.S. App. LEXIS 1262, **21
Page 10
*672 prisoner was held, was constitutionally sufficient. In a brief, per curiam opinion, the Court, repeating the language from Mullane quoted above, held that it was not:
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 circum- stances, it cannot be said that the State made any effort to provide notice which was 'rea- sonably calculated' to apprise appellant of the pendency of the forfeiture proceedings.
Id. at 40. In so ruling, the Court suggested that the no- tice provided "with respect to an individual whose name and address are known or easily ascertainable," id., must be such notice that can **22 be put to practical use. It cited its earlier decision in Covey v. Town of Somers, 351
U.S. 141, 100 L. Ed. 1021, 76 S. Ct. 724 (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, 77 L. Ed. 2d 180, 103 S. Ct. 2706 (1983), that "notice 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 inter- ests 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.3d 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, **23 "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 del- egate 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 as- suming 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.
HN18 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, **24 address and di- rect 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 insti- tution 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.,
202 F.3d 664, *673; 2000 U.S. App. LEXIS 1262, **24
Page 11
*673 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) **25 ("When the government is aware that an interested party is incarcer- ated, 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) ("If the DEA had de- sired 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 de- tainees are often moved between detention facilities and McGlory could have been moved after the DEA ascer- tained his whereabouts and sent the mail, "sending notice via the Marshals Service was the most reasonable and ef- ficient 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 no- tices, and the government introduced no such evidence, using the Marshals Service as a conduit for forfeiture
**26 notices may exacerbate rather than cure the prob- lem 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 du- plicates 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 the first 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 lit- tle 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 **27 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, un- der 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 no- tice 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 di- rected the notices to him at that address." n9
n9 At oral argument, McGlory did not press the position that due process mandates the use of certified as opposed to ordinary first class mail. In fact, "certified mail is dispatched and handled in transit as ordinary mail." United States Postal Service, Domestic Mail Manual, Issue 54, § 912.1.1
(12/2/1999) (on the Web at http://pe.usps.gov/). As the Postal Service explains, the principal advantage of this type of service is evidentiary. Id. ("Certified mail service provides the sender with a mailing re- ceipt, and a delivery record is kept at the post office of address.").
Although we have at times noted the obvious evidentiary value of certified or registered mail, we have not required notice to be effected in that man- ner. See, e.g., Zimmer Paper Prods., Inc. v. Berger
& Montague, P.C., 758 F.2d 86, 91-93 (3d Cir.
1985) (first class mail and publication provided ad- equate notice in class action suit); United States v. Smith, 398 F.2d 173, 176-78 (3d Cir. 1968) (notice of divorce proceeding need not be sent by certified or registered mail); see also, e.g., DePiero v. City of Macedonia, 180 F.3d 770, 788-89 & n.9 (6th Cir.
1999) (notice of right to contest parking ticket may be sent first class mail); Armendariz-Mata v. DEA,
82 F.3d 679, 683 (5th Cir. 1996) ("Under most cir- cumstances, notice by ordinary mail is sufficient to discharge the government's due process obliga- tions."); Weigner v. City of New York, 852 F.2d 646,
650-51 (2d Cir. 1988) (notice of tax foreclosure may be sent regular mail). Nor has the Supreme Court suggested a distinction of constitutional mag- nitude between these types of mail. See, e.g., Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478,
490, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988) ("no- tice by mail" sufficient to provide actual notice of probate proceedings); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318-19, 94 L. Ed.
202 F.3d 664, *673; 2000 U.S. App. LEXIS 1262, **27
Page 12
865, 70 S. Ct. 652 (1950) (trust beneficiaries had to be notified "at least by ordinary mail" . . . which is
"recognized as an efficient and inexpensive means of communication").
**28
202 F.3d 664, *674; 2000 U.S. App. LEXIS 1262, **28
Page 13
*674 We thus hold that, at a minimum, due process requires that when a person is in the government's cus- tody and detained at a place of its choosing, notice of a pending administrative forfeiture proceeding must be mailed to the detainee at his or her place of confinement. Whether anything more is required is not presently before us in this appeal.
IV.
For the reasons set forth we will vacate the District Court's order of January 3, 1997 granting summary judg- ment to the government with regard to DEA seizure num- bers 52425, 65613, 65615, 66651, 65323 and 67065 and remand to the District Court for further proceedings con- sistent with this opinion. n10
n10 We note that the District Court's order of January 3, 1997 did not address McGlory's claim to property he contends was seized but never sub- jected to administrative or judicial forfeiture, al- though McGlory did raise the issue in his Rule 41(e) motion. The Magistrate Judge's report of July 23,
1998, adopted by the District Court in its September
22, 1998 order denying McGlory's motion for re- consideration, did address ten household items, and having determined that the government had prop- erly accounted for all but two of the ten disputed items, determined that the government should re- turn to McGlory a stereo system and camera which were seized but never forfeited or the value of these items. The status of the remaining twenty-six items that McGlory claims were also seized but not for-
feited is not before us. The District Court may ad- dress them on remand.
**29
DISSENTBY: ALITO, BARRY
DISSENT:
ALITO, Circuit Judge, with whom BARRY, Circuit
Judge, joins, dissenting:
I dissent from the judgment of the court and from part III of the court's opinion, which concerns the constitu- tionality 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 inconsis- tent 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 question n1 and then sent the notices
202 F.3d 664, *675; 2000 U.S. App. LEXIS 1262, **29
Page 14
*675 of forfeiture **30 to McGlory at those loca- tions by first-class mail. Instead, this is what happened. An employee of the DEA sent the notices to the Marshals Service, which had legal custody of McGlory, knew his exact location at all times, and has extensive experience and responsibilities relating to the service of process. The notices were received by the Marshals Service (the DEA produced certified mail receipts for all of the notices at issue), and, if the Marshals Service followed its standard practice, the Marshals Service forwarded the notices "to the intended recipient at his place of confinement, by first class mail, postage prepaid." App. at 104. Indeed, the Chief Deputy Marshal for the Western District of Pennsylvania affirmed that during the time in question "to the best of his knowledge and belief, the standard office procedures of the United States Marshal Service were followed, and all such correspondence was forwarded to Reginald D. McGlory at his place of confinement by first class mail, postage prepaid." Id. at 105. Thus, if the Chief Deputy Marshal's belief and knowledge are cor- rect and the standard practice of the Marshals Service was followed, notice of the forfeitures was mailed **31 to McGlory at his place of confinement by first-class mail -- precisely what the majority says that due process demands.
n1 At no time in this appeal has McGlory dis- puted the fact that he was moved from one facility to another during the relevant period. Indeed, in a sub- mission filed shortly before the en banc argument, McGlory stated: "The government saw fit to house Mr. McGlory while he was in their custody during this period at a number of state facilities which were apparently under contract with the federal govern- ment to house federal prisoners." Appellant's Oct.
25, 1999, Letter-Brief at 4 (emphasis added).
Why, then, does the majority think that due process was violated? The majority provides no express explana- tion. The majority opinion appears to hint at two possible explanations, but neither is supportable. First, the ma- jority may believe that it is essential that the notice be sent to the detainee's place of confinement by "the for- feiting agency," Maj. Op. at 11, in this case the DEA, rather than the **32 Marshals Service. Compare Weng v. United States, 137 F.3d 709, 715 (3d Cir. 1998)(treat- ing the forfeiting agency, the DEA, and another compo-
nent of the Justice Department, the Bureau of Prisons, as one entity for the purpose of due process notice re- quirements in administrative forfeiture of property of de- tainee). 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 deci- sion 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 dou- bles the time until . . . **33 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 lead- ing up to the mailing is a matter for the Executive, not the Judiciary. n2
n2 The majority's suggestion that its decision is supported by Robinson v. Hanrahan, 409 U.S. 38,
34 L. Ed. 2d 47, 93 S. Ct. 30 (1972), and United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995), is plainly incorrect. Both cases held that due process was violated where notice of forfeiture was sent to the home address of a person who was incarcerated, rather than the place where he was being held, even though the government knew that the detainee was in custody. Neither case had anything to do with the issue presented here, viz., whether due process was violated because the DEA, instead of mailing the forfeiture notices directly to McGlory's place of confinement, mailed them to the Marshals Service, and the Marshals Service, if it followed its standard practice, then forwarded them to McGlory.
**34
202 F.3d 664, *676; 2000 U.S. App. LEXIS 1262, **34
Page 15
*676 In sum, the en banc majority has rendered a de- cision that mailing by the Marshals Service, as opposed to the DEA, violates the Constitution, but the majority fails to say why, and no plausible explanation is appar- ent. I urge the majority to explain why it matters for due process purposes whether the notices were sent by the DEA or the Marshals Service. Since the majority has yet to offer such an explanation, and since none is apparent I would hold, contrary to the majority, that due process was satisfied in this case -- provided that the Marshals Service followed its standard practice and sent the no- tices in question to McGlory by first-class mail at his place or places of confinement. It is far from clear that McGlory has raised on appeal the argument that in fact the Marshals Service did not follow its standard practice
with respect to the notices in question, n3 but I would give him the benefit of the doubt on this point and remand for a factual finding by the District Court. If the District Court finds that the Marshals Service never sent the notices, I would agree with the majority that due process was not provided. But if the Court finds that the Marshals Service did send the **35 notices, I would hold that due process was satisfied.
n3 Rather, the main thrust of McGlory's ar- gument, like the majority's analysis, focuses on the conduct of the DEA, and he contends that the DEA's actions-- mailing the notices to the Marshals Service -- were constitutionally inadequate.
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