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Title United States v. One Toshiba Color Television

Date 2000

Subject Other\Concurring & Dissenting

Contents

Page 1

23 of 79 DOCUMENTS

UNITED STATES OF AMERICA v. ONE TOSHIBA COLOR TELEVISION; TWO ANSWERING MACHINES; ONE HEALTH TECH COMPUTER; * Reginald McGlory, Appellant in No. 98-3578 (D.C. Civ. No. 90-cv--00138); UNITED STATES OF AMERICA v. ASSORTED JEWELRY; * Reginald McGlory, Appellant in No. 98-3579 (D.C. Civ. No.

90-cv--00370)

* (Pursuant to Rule 12(a), F.R.A.P.).

NOS. 98-3578 and 98-3579

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

213 F.3d 147; 2000 U.S. App. LEXIS 11584; 46 Fed. R. Serv. 3d (Callaghan) 1327

July 13, 1999, Submitted Under Third Circuit LAR 34.1(a); November 8, 1999, Argued En

Banc

May 24, 2000, Filed

SUBSEQUENT HISTORY: **1 As Modified June

13, 2000.

PRIOR HISTORY: On Appeal From the United States

District Court For the Western District of Pennsylvania.

(D.C. Civ. No. 90-cv--00138), (D.C. Civ. No. 90-cv--

00370). District Judge: Honorable D. Brooks Smith.

DISPOSITION: Vacated and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant appealed from judgments of the United States District Court for the Western District of Pennsylvania, which ruled that no- tice through first-class mail to the last known address of defendant, prisoner, satisfied due process and applied the doctrine of laches to prevent defendant from challenging a second forfeiture proceeding.

OVERVIEW: In consolidated appeals defendant chal- lenged the results of two forfeiture proceedings. The first appeal addressed the question of the notice required for forfeiture proceedings against the property of an incarcer- ated defendant. The second concerned the district court's use of the doctrine of laches to prevent defendant from challenging a forfeiture proceeding. The court of appeals vacated and remanded both forfeiture orders. The court held that the government could not rely on direct mail in providing notice of forfeiture to defendant, an incarcer- ated prisoner, unless it met the burden of demonstrating that procedures were reasonably likely to effect actual notice. Because the court could not determine whether

such a system was in place, it vacated and remanded the district court's judgment. The court similarly vacated the district court's judgment in the second forfeiture proceed- ing concluding that the doctrine of laches should not have be considered in analyzing defendant's motion to vacate.

OUTCOME: Judgments ordering forfeiture were va- cated and remanded requiring a showing that the govern- ment's notice of forfeiture procedures were reasonably likely to effect actual notice to incarcerated defendant and on finding the doctrine of laches should not have be considered in analyzing defendant's motion to vacate.

LexisNexis(R) Headnotes

Criminal Law & Procedure > Sentencing > Forfeitures

HN1 At a minimum, 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 proceeding must be mailed to the detainee at his or her place of confinement.

Constitutional Law > Procedural Due Process > Scope of Protection

HN2 In cases in which proper notice under the Due Process Clause is at issue, the touchstone of analysis is whether the notice was 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.

Criminal Law & Procedure > Sentencing > Forfeitures

HN3 The government agency pursuing forfeiture must send notice to the facility at which the detainee is actually incarcerated and that it may not rely on another agency to

213 F.3d 147, *; 2000 U.S. App. LEXIS 11584, **1;

46 Fed. R. Serv. 3d (Callaghan) 1327

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do so.

Constitutional Law > Procedural Due Process > Scope of Protection

HN4 An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the cir- cumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. A person or entity seeking to give no- tice must employ means such as one desirous of actually informing the absentee might reasonably adopt to accom- plish it.

Criminal Law & Procedure > Postconviction

Proceedings > Imprisonment & Prisoner Rights

HN5 Under the due process framework, when an in- carcerated individual is the one being served, the serving party must attempt to effect service where the prisoner may be found--that is, in prison, not the pre-incarceration address.

Criminal Law & Procedure > Trials > Defendant's

Rights > Right to Due Process

HN6 Adequacy of notice is always evaluated by refer- ence to the surrounding circumstances. The focus is on the reasonableness of the balance, and whether a particular method of notice is reasonable depends on the particular circumstances.

Civil Procedure > Early Pretrial Judgments > Default > Entry of Default & Default Judgment

HN7 The entry of a default judgment without proper service of a complaint renders that judgment void.

Civil Procedure > Early Pretrial Judgments > Default > Entry of Default & Default Judgment

HN8 A default judgment entered when there has been no proper service of complaint is, a fortiori, void, and should be set aside.

Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Affirmative Defenses

HN9 The doctrine of laches hails from equity, and is invoked when two essential elements exist: inexcusable delay in instituting suit, and prejudice resulting to the defendant from such delay.

COUNSEL: MICHAEL A. YOUNG, ESQUIRE

(ARGUED), New York, NY, Counsel for Appellant. HARRY LITMAN, ESQUIRE (ARGUED), United States Attorney, BONNIE R. SCHLUETER, MARY McKEEN HOUGHTON, ESQUIRE, Assistant United States Attorney, Pittsburgh, PA, Counsel for Appellees. JUDGES: Before: BECKER, Chief Judge, ROTH

and RENDELL, Circuit Judges. Before: BECKER, Chief Judge, SLOVITER, MANSMANN GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL and BARRY, Circuit Judges. ALITO, Circuit Judge, concurring and dissenting.

OPINIONBY: BECKER

OPINION:

*149 OPINION OF THE COURT BECKER, Chief Judge.

In these consolidated appeals Reginald McGlory chal- lenges the results of two forfeiture proceedings. The first appeal requires that we revisit the question of the notice that the United States must provide when it pursues forfei- ture proceedings against the property of an incarcerated defendant in its custody. The second concerns the District Court's use of the doctrine of laches to prevent McGlory from challenging **2 a forfeiture proceeding in which the notice given for the forfeiture is later discovered to be constitutionally inadequate.

In the first appeal, which concerns forfeiture of cer- tain items of jewelry, the government directed notice by certified mail to the facility in which McGlory was in- carcerated. McGlory maintains that he did not receive the notice, and that the government should have ensured that he received personal notification of the proceedings against his property. In United States v. McGlory, 202

F.3d 664 (3d Cir. 2000) (en banc), which involved differ- ent property of McGlory's that was subject to administra- tive forfeiture, this Court ruled that merely sending notice to the Marshals Service, in whose custody McGlory was held, did not satisfy the Constitution. HN1 We held that

"at a minimum, 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 proceeding must be mailed to the detainee at his or her place of confinement." Id. at 674. We noted, however, that

"whether anything more is required is not presently before us." Id. This appeal squarely presents **3 the question whether "more" is required. McGlory asks that we rule the judicial forfeitures at issue in this case invalid because he did not receive actual notice of the proceedings.

HN2 As in all cases in which proper notice under the Due Process Clause is at issue, the touchstone of analysis is whether the notice was "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." Mullane v. Central Hanover Bank & Trust, Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70

S. Ct. 652 (1950). The government urges that mailing a

213 F.3d 147, *149; 2000 U.S. App. LEXIS 11584, **3;

46 Fed. R. Serv. 3d (Callaghan) 1327

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letter by first-class mail to the location of the interested party is always sufficient. McGlory, in contrast, argues that a higher standard should prevail when the party is held in custody by the same government that wishes to serve notice upon him. He maintains that the government

was in the position to ensure actual notice of the proceed- ings. Such notice has been required by several of our sister circuits, most notably by the Second Circuit in Weng v. United States, 137 F.3d 709 (2d Cir. 1998).

213 F.3d 147, *150; 2000 U.S. App. LEXIS 11584, **3;

46 Fed. R. Serv. 3d (Callaghan) 1327

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*150 Though there is much to recommend the **4 actual notice standard when the United States Attorney is dealing with federal prisoners and detainees, we are not prepared to require the government to bear the evidentiary burden of establishing actual notice in all cases. Such a demonstration could impose needless litigation costs, es- pecially if the due process challenge arises years after the conclusion of the initial proceedings. Moreover, the Supreme Court has never required the demonstration of actual notice. At all events, the jurisprudence of constitu- tional notice appropriately focuses not on what actually occurred, but rather on the procedures that were in place when notice was attempted. Evaluating the adequacy of these procedures requires consideration of the context in which they occur.

We conclude that the circumstances surrounding the federal government's incarceration of a prisoner require greater efforts at ensuring notice than would be expected for individuals at liberty in society. When one is in prison, the relative difficulty to the government to effect actual notice is reduced, while the ability of prisoners to en- sure that they receive notices directed to them suffers. However, we stop short of the Weng standard **5 and adopt an approach that focuses on the extent that proce- dures are reasonably likely to effect actual notice. Under this regime, the government's obligations do not end at the mailbox. Rather, we hold that if the government wishes to rely on direct mail, it bears the burden of demonstrating that procedures at the receiving facility were reasonably calculated to deliver the notice to the intended recipient. On this record, we cannot determine whether such a sys- tem was in place in McGlory's facility. We will therefore vacate the judgment and remand to the District Court for further factual findings on the sufficiency of the notice.

In the second forfeiture now before us, which con- cerns certain electronic equipment, the notice provided to

McGlory concededly fell short of the constitutional mini- mum. The government contends, however, that McGlory's attempt to recover the forfeited property is barred by the doctrine of laches, and the District Court agreed. We con- clude that the doctrine of laches should not be considered when the issue is whether a judgment is void. If McGlory unreasonably delayed in seeking the recovery of his prop- erty, the proper time to raise the issue is in a proceeding

**6 in which he seeks recovery from the government. The District Court will have to consider whether such re- covery is available by a motion to vacate that arises under Fed. R. Civ. P. 60(b) or if McGlory will have to proceed by other means. We will therefore vacate the District Court's judgment that McGlory's action was barred by laches.

This is the third time that forfeitures of McGlory's property have come before this Court, and the facts sur- rounding his arrest and detention are described several times in the Federal Reporter, most recently in United States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc); see also United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995); United States v. McGlory, 968 F.2d 309 (3d Cir. 1992) (upholding McGlory's criminal conviction and sentence). We therefore need not rescribe this story save for the highlights.

On September 8, 1989, Pittsburgh police officers and Drug Enforcement Administration agents arrested McGlory for conspiracy to possess heroin with intent to distribute. He was ultimately convicted of conspiracy to possess and distribute heroin, possession of heroin with intent to distribute, **7 possession of a firearm by a convicted felon, use of a firearm in a drug trafficking op- eration, and laundering drug proceeds. He received a life sentence. On the date of his arrest, the officers searched several residences used by McGlory and seized numerous items of property, including, at issue in this appeal,

213 F.3d 147, *151; 2000 U.S. App. LEXIS 11584, **7;

46 Fed. R. Serv. 3d (Callaghan) 1327

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*151 one Toshiba color television set, two answering machines, one Health Tech computer, and assorted jew- elry. In 1990, the United States Attorney instituted civil judicial forfeiture actions against these items under 21

U.S.C. § 881.

Until McGlory was sentenced on February 11, 1991, he was in the custody of the United States Marshals Service, and was housed in various detention facilities with which it had contracted. In initiating the forfei- ture against the jewelry, the government mailed notice of the action to McGlory care of the Ohio County Jail in Wheeling, West Virginia, where he was apparently be- ing held at the time. The notice was received at the jail on November 9, 1990 and signed for by one of the jail's officers. The government also sent notice to the jail by regular mail and mailed notice by certified mail to one of McGlory's pre-incarceration **8 residences. That let- ter was not accepted. Finally, the government sent notice to McGlory's ex-wife, and to an attorney by the name of William Magann, n1 and it published notice for three consecutive weeks in a general circulation newspaper. No one filed a claim or answer as directed by the notice to those seeking to contest the forfeiture. A default judgment was entered in the government's favor on January 7, 1991. The government ultimately sold the jewelry for $9,950.

n1 In proceedings below, McGlory claimed not to know who Magann is, and the government does not contend that he represented McGlory in this matter.

The government also initiated forfeiture proceedings against the television set and the other equipment, mailing the notice to an address used by McGlory. The govern- ment also sent notice to McGlory's mother and Magann and published notice in a newspaper. This proceeding was resolved by default judgment in the government's favor on May 31, 1990.

McGlory maintains that he never received any notice,

**9 and he was unaware of any of the forfeiture pro- ceedings until December 1993. On April 11, 1994, he filed a pro se motion pursuant to Fed. R. Crim. P. 41(e), seeking return of all the property that had been seized from him. The District Court dismissed the motion with- out prejudice on January 6, 1997, and McGlory promptly filed a motion to reconsider the denial of his 41(e) mo- tion. Shortly thereafter, he filed a motion to vacate the judgments in the two earlier proceedings. The Magistrate Judge to whom the case was assigned concluded that no constitutional notice violation occurred in the jew- elry forfeiture proceeding, but that there was a violation in the proceeding concerning the electronic equipment. Notwithstanding this conclusion, he recommended that this claim be dismissed based on the doctrine of laches because: (a) McGlory had inexcusably delayed seeking recovery of the property; and (b) this delay was prejudi- cial to the government. Relying on the Magistrate Judge's report, the District Court denied McGlory's motion to va- cate the judgments on September 23, 1998. McGlory filed a timely notice of appeal.

The District Court had jurisdiction over the forfeiture proceedings under **10 28 U.S.C. §§ 1331, 1345, and

1355, and over the motion to vacate judgment under 28

U.S.C. § 1331. We have jurisdiction to review the District Court's final order under 28 U.S.C. § 1291. Our review over constitutional issues is plenary, see United States v. Various Computers & Computer Equip., 82 F.3d 582, 589

(3d Cir. 1996), as is our review of the legal components of the laches issue, see Bermuda Express, N.V. v. M/V Litsa

(Ex. Laurie U), 872 F.2d 554, 557 (3d Cir. 1989).

II.

The central issue in the appeal from the jewelry for- feiture is whether a pretrial detainee is entitled to actual notice of judicial forfeiture proceedings initiated against him. n2 The District Court concluded

213 F.3d 147, *152; 2000 U.S. App. LEXIS 11584, **10;

46 Fed. R. Serv. 3d (Callaghan) 1327

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*152 that attempting service in jail via the mail satis- fied constitutional requirements for the service of notice. It primarily relied upon two cases. First, it looked to our opinion in United States v. $184,505.01, 72 F.3d 1160

(3d Cir. 1995), another McGlory forfeiture case, which taught that the government must at least attempt service on an incarcerated defendant in the place where he is be- ing **11 detained. Second, it cited Herbert v. United States, 1996 U.S. Dist. LEXIS 8844, 1996 WL 355333

(E.D. Pa. June 25, 1996), aff'd without opinion, 103 F.3d

114 (3d Cir. 1996), which declared that notice to the prison in which the defendant was incarcerated met due process requirements. Because it was not affirmed by a published opinion, Herbert is not precedential under our Internal Operating Procedures. See, e.g., United States v. Breyer,

41 F.3d 884, 892 n.11 (3d Cir. 1994); IOP § 6.2.1 (2000 ed.). The District Court nevertheless reasoned that the two cases indicate that, in this circuit, attempting service by mail to a prisoner in jail meets due process requirements.

n2 The relevant precedents in this area involve both judicial and administrative forfeitures. Insofar as both judicial and administrative forfeiture pro- ceedings carry the potential to affect the property rights of the owner, there would appear to be no reason to distinguish between the notice required by the Due Process Clause in the two situations. At all events, the issue presented in this appeal solely concerns judicial forfeitures.

**12

We have never addressed the specific claim that McGlory urges upon us now. HN3 Our most recent pro- nouncement on the issue, which also involved McGlory, held no more than that the government agency pursuing the forfeiture must send notice to the facility at which the detainee is actually incarcerated and that it may not rely on another agency to do so. See United States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc). We turn then to consideration of whether due process requires the

government to go further and provide actual notice to an incarcerated defendant against whom it has initiated forfeiture proceedings.

Our analysis perforce begins with Mullane v. Central

Hanover Bank & Trust, Co, 339 U.S. 306, 94 L. Ed. 865,

70 S. Ct. 652 (1950), which established the framework for evaluating the adequacy of notice for due process pur- poses. As described by the Supreme Court, the judgment is a highly contextual one. " HN4 An elementary and fundamental requirement of due process in any proceed- ing which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise inter- ested parties of the pendency of the action and afford them

**13 an opportunity to present their objections." Id. at

314 (emphasis added). A person or entity seeking to give notice must employ means "such as one desirous of ac- tually informing the absentee might reasonably adopt to accomplish it." Id. at 315.

HN5 Under this framework, it is clear that when an incarcerated individual is the one being served, the serving party must attempt to effect service where the prisoner may be found--that is, in prison, not the pre- incarceration address. See Robinson v. Hanrahan, 409

U.S. 38, 40, 34 L. Ed. 2d 47, 93 S. Ct. 30 (1972) (per curiam). As the Magistrate Judge's report recounted, this Court has ruled that notices in other forfeiture proceed- ings involving McGlory were inadequate when they did not attempt to reach him where he was incarcerated. See United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995).

The government argues that precedent supports the conclusion that direct mail always satisfies due process requirements. Indeed, Supreme Court authority indicates that mailing to the location where the party can be found usually suffices for due process purposes. See Mullane,

339 U.S. at 318. **14 In Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800,

213 F.3d 147, *153; 2000 U.S. App. LEXIS 11584, **14;

46 Fed. R. Serv. 3d (Callaghan) 1327

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*153 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983), the Court opined, "notice by mail or other means as certain to ensure actual notice is a minimum constitutional pre- condition to a proceeding which will adversely affect the liberty or property interests of any party . . . if its name and address are reasonably ascertainable." The govern- ment points to this language and to Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 99 L. Ed. 2d

565, 108 S. Ct. 1340 (1988), for the proposition that notice by direct mail suffices to establish its successful discharge of its obligations to McGlory under the Due Process Clause. See id. at 490 ("We have repeatedly rec- ognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice.").

While this argument carries strong surface appeal, it ignores the framework that Mullane decreed. Precedents endorsing direct mail as a means of meeting constitutional notice requirements in certain contexts do not establish that such mailings result in per se satisfaction of notice requirements. HN6 Adequacy of notice **15 is al- ways evaluated by reference to the surrounding circum- stances. See Mullane, 339 U.S. at 314. "The focus is on the reasonableness of the balance, and, as Mullane itself made clear, whether a particular method of notice is rea- sonable depends on the particular circumstances." Tulsa Professional Collection Servs., 485 U.S. at 484. For ex- ample, in Covey v. Town of Somers, 351 U.S. 141, 146-

47, 100 L. Ed. 1021, 76 S. Ct. 724 (1956), the Supreme Court held that notice sent to an incompetent taxpayer was inadequate, notwithstanding that the notice was sent by direct mail. Though the facts of Covey are not, of course, analogous to the case at hand, that case's dis- position stands as a stark example of the imprudence of gleaning from Supreme Court precedent a per se rule that mail will always be adequate notice. The proper effort at giving notice, the effort "such as one desirous of actually

informing the absentee might reasonably adopt to accom- plish it," Mullane, 339 U.S. at 315, will vary under the circumstances.

Our sister circuits have differed on what kind of notice is the constitutional minimum for incarcerated individu- als whose **16 property is subject to forfeiture. United States v. Clark, 84 F.3d 378, 380 (10th Cir. 1996), in- volved the government's attempt to serve notice of an administrative forfeiture to a pre-trial detainee by mail- ing it to the facility where he was actually held. The Tenth Circuit held that this notice met the demands of due pro- cess, even if the party served did not actually receive the mailed notice. See id. at 381. In concluding that the no- tice was sufficient, the court employed a logic similar to that urged by the government and pointed to the Supreme Court's indication in Mennonite Board. of Missions that mail is a constitutionally acceptable form of notice. See id. "We have found no case suggesting that service by mail is inadequate or requiring the government to person- ally serve an interested party at the place of incarceration. We decline to create such a requirement here." Id.

Other courts of appeals, however, have required more. In Weng v. United States, 137 F.3d 709 (2d Cir. 1998), the Second Circuit announced a requirement of actual notice. Weng involved several administrative forfeiture notices, one of which was sent by certified mail to **17 the federal facility at which the defendant was detained. See id. at 714. The court determined that Mullane's balancing analysis compelled more. Noting the importance of the property interest at stake to the party notified and his in- ability to rely on others to vindicate those interests, see id. at 714-15, the court declared that the interests and bur- dens on the other side of the scale were less pronounced.

"At least where the owner is in federal custody on the very charges that justify a federal agency in

213 F.3d 147, *154; 2000 U.S. App. LEXIS 11584, **17;

46 Fed. R. Serv. 3d (Callaghan) 1327

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*154 seeking the forfeiture, there is no undue hardship to the agency in insuring that the owner-prisoner actually receive the legally required notification." Id. at 715. The court further noted the disparity in the parties' relative ability to take precautions to ensure the prisoner's receipt of notice.

First, as a prisoner, the owner is unable to insure that he will receive the notice once the post office has delivered it to the institution. The owner is entirely dependent on the in- stitution to deliver his mail to him. Second, because the owner's jailor--the Bureau of Prisons--is part of the same government .

. . as the agency seeking to **18 give no- tice, the forfeiting agent can in all probability easily secure the Bureau's cooperation in as- suring that the notice will be delivered to the owner and that a reliable record of the deliv- ery will be created.

Id.

The court concluded that, under the circumstances, merely sending notice to the detention facility without ensuring actual delivery to the prisoner is not notice "such as one desirous of actually informing the owner might reasonably adopt." Id. (quoting Mullane, 339 U.S. at 315). Instead, the court held that when the prisoner is in federal custody on the charges that are the basis of the forfeiture,

"mailing of a notice to the custodial institution is not ade- quate unless the notice is in fact delivered to the intended recipient." Id.; see also United States v. Woodall, 12 F.3d

791, 794-95 (8th Cir. 1993) ("If the government is incar- cerating or prosecuting the property owner when it elects to impose the additional burden of defending a forfeiture proceeding, fundamental fairness surely requires that ei- ther the defendant or his counsel receive actual notice of the agency's intent to forfeit in time to decide whether to compel the **19 agency to proceed by judicial con- demnation.").

As Weng recites, the circumstances of prisoners dif- fer greatly from free citizens, a fact that potentially alters the evaluation of what steps are reasonably calculated to provide notice. When an individual is incarcerated at a location of the government's choosing, the government's ability to find and directly serve him or her with papers is at or near its zenith. Not only does the government know where to find the person, it can be equally sure that he or she will be there when the papers are delivered. Indeed, it can even move the person to a more convenient location if it so chooses. This appears especially the case where, as here, ongoing criminal proceedings against the prisoner brought the prisoner into frequent face-to--face contact with government attorneys.

For his part, a prisoner lacks the ability to take steps to ensure that his mail is actually delivered to him. This dilemma is especially acute for a prisoner who may be transferred from facility to facility, complicating efforts to effect service. In the outside world, an individual who changes addresses can arrange to have mail forwarded and can notify interested parties **20 as to the change of address. While a prisoner may take similar steps, the effectiveness of these measures may depend in some de- gree on such independent factors as prison policies vis- a-vis the forwarding of mail or the amount of forewarn- ing a prisoner receives of an impending transfer. We also note that a prisoner may not know how long he or she will be at the changed address, which may make prison forwarding difficult. Shades of the same problem also ex- ist for a prisoner who is not moved, but remains at one facility. If a person lives in an apartment building where the distribution of mail among the residents leads to lost missives, that person has some recourse, through com- plaint or, possibly, moving elsewhere. Such options are necessarily curtailed for the prisoner.

The relative burdens and benefits of additional steps to ensure actual notice, therefore, suggest that requiring greater efforts at assuring notice by the government is ap- propriate. In other words, there is much to commend the Weng approach, and as an aspiration, the Weng

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*155 rule comports with our ideas of the sort of effort that the government should undertake when it wishes to effect notice of a forfeiture proceeding **21 against a prisoner in federal custody. On the other hand, Weng involved a prisoner held in a federal, rather than a state, facility. As the Seventh Circuit has observed, "the pro- phylactic Weng rule, requiring actual notice, becomes less reasonable as the federal government exercises less control over the detainee." Donovan v. United States, 172

F.3d 53, 1999 WL 50847, at *2 (7th Cir. 1999). The re- joinder to this argument is that, though McGlory was held in a state facility, he was held pursuant to his arrest on federal charges, and in contracting with state facilities to house pre-trial detainees, the federal government has the ability to demand procedures that will allow the delivery of adequate notice for prisoners.

Though attractive, the Weng rule does present prob- lems. The real difficulty with the Weng rule lies not in re- quiring the government to demonstrate actual notice, but rather the evidentiary burden that such a standard could impose after the passage of time. Given the temporal gap that may separate a forfeiture from a due process chal- lenge to the proceedings, it is easy to imagine situations in which proof of the delivery of notice may be unavail- able, **22 even if such notice was properly served. An overly strict notice requirement, therefore, could lead to unsettling the outcome of completed proceedings based on nothing but bare allegations of a party who had lost property.

More importantly, the Weng approach undermines the procedural analysis that has heretofore animated the Supreme Court's dictates on this subject. The Court has never employed an actual notice standard in its jurispru- dence. Rather, its focus has always been on the proce- dures in place to effect notice. See, e.g., Mennonite Bd. of Missions, 462 U.S. at 799-80. n3 We think this focus appropriate. Thus, while we will not adopt the Weng rule, the concerns animating Weng will inform our decision as to the procedures designed to give notice. We hold that, while the government need not prove actual notice to the prisoner, if it chooses to rely on less than actual notice, it bears the burden of demonstrating the existence of pro- cedures that are reasonably calculated to ensure that such notice will be given. Thus, our rule requires the govern- ment to ensure that proper procedures are employed in the facilities where it chooses to house its prisoners. n4

Of course, **23 if there is a signed receipt from the

served party, the government does not then have to prove anything about the procedures that were in place. n5

n3 It is true that Tulsa Professional Collection

Services v. Pope, 485 U.S. 478, 485, 99 L. Ed.

2d 565, 108 S. Ct. 1340 (1988), speaks in terms of requiring "actual notice" to those with a liberty or property interest at stake in a proceeding. That opinion, however, also describes mail service as an acceptable means of providing actual notice. See id. at 490. In our view, therefore, "actual notice" is employed not as a rule, but rather as a goal against which various forms of effecting actual notice are evaluated.

n4 Our ruling is analogous to the approach taken by the Ninth Circuit in United States v. Real Property, 135 F.3d 1312 (9th Cir. 1998). In that case, the court declined to require actual notice to a forfeiture defendant when notice was sent by certified mail to the facility in which he was held awaiting trial and evidence was presented that the facility handled certified mail to inmates by open- ing the letters in their presence and, after check- ing for contraband, giving the contents directly to them. See id. at 1315. Under these circumstances, the court concluded that sufficient notice was given. See id. at 1316.

**24

n5 Our approach would also apply to the prob- lem of the relocated prisoner. Just as the govern- ment can monitor whether mail reaches a prisoner within a facility, it can similarly ensure that mail will follow an inmate who is transferred from one facility to another. See generally Small v. United States, 136 F.3d 1334, 1337 (D.C. Cir. 1998)

(deeming notice inadequate when notice sent to jail and returned absent indication that effort to find prisoner for resending would be burdensome to government); Armendariz-Mata v. U.S. Dep't of Justice, D.E.A., 82 F.3d 679, 683 (5th Cir. 1996)

(holding notice inadequate when notice to jail re- turned undelivered and sender made no further in- quiry).

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*156 Because the District Court did not make findings on the sort of procedures in place at the facility at which McGlory was housed and whether these procedures were reasonably calculated to ensure that the notice, once ad- dressed to McGlory, would still reach him upon arrival at the prison (and indeed, would only be accepted were McGlory actually present), we will vacate the District Court's **25 ruling as to the jewelry forfeiture and re- mand for further proceedings consistent with this opinion.

III.

In the forfeiture proceeding regarding the Toshiba television and other electronic equipment, the government made no attempt to serve McGlory in jail. For due pro- cess purposes, therefore, the attempted notice was clearly inadequate. Though the government concedes the con- stitutional deficiency of its notice, it contends, and the District Court agreed, that McGlory's motion to vacate judgment on this forfeiture is precluded by the doctrine of laches. We disagree.

The District Court treated McGlory's motion as aris- ing under Federal Rule of Civil Procedure 60(b), but con- cluded that the improper notice given by the government of the forfeiture proceedings rendered the judgments, as applied against him, "voidable" rather than "void," as pro- vided by Fed. R. Civ. P. 60(b)(4). We think this conclusion incorrect. HN7 As a general matter, we have held that the entry of a default judgment without proper service of a complaint renders that judgment void. See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir.

1985). The majority of courts of appeals to **26 con- sider the fate of a prior forfeiture proceeding that violated notice requirements agree that a judgment issued without proper notice to a potential claimant is void. See United

States v. Marolf, 173 F.3d 1213, 1216 (9th Cir. 1999); Clymore v. United States, 164 F.3d 569, 573 n.5 (10th Cir. 1999); Muhammed v. D.E.A., Asset Forfeiture Unit,

92 F.3d 648, 654 (8th Cir. 1996); Barrera-Montenegro v. United States, 74 F.3d 657, 661 (5th Cir. 1996); United States v. Giraldo, 45 F.3d 509, 512 (1st Cir. 1995). But see United States v. Dusenbery, 201 F.3d 763, 768 (6th Cir.

2000) (treating forfeiture as voidable rather than void); Boero v. D.E.A., 111 F.3d 301, 307 (2d Cir. 1997) (same). In light of our decision in Gold Kist, we are in ac- cord with the majority view. Gold Kist involved a service of a summons and complaint in a manner that did not conform with Pennsylvania law. See Gold Kist, 756 F.2d at 18. Defendants in that action challenged the default judgment entered against them. Citing Fed. R. Civ. P.

60(b)(4), we declared that HN8 " a default judgment entered when there has been **27 no proper service of complaint is, a fortiori, void, and should be set aside." Id. at 19. Because of the complaint's improper service, as well as the entry of default judgment before the expira- tion of the time for filing an answer, see id., the Gold Kist panel refrained from considering other factors that could also justify the setting aside of a default judgment, see id. The same logic applies here. Though we understand the concern expressed by the Sixth Circuit in Dusenbery that a prisoner claimant could sit on his or her rights until after the passage of the statute of limitations for the gov- ernment to reinitiate a proceeding, see Dusenbery, 201

F.3d at 768, we conclude that this concern can be ad- dressed by other means, see id. at 769 (Cole, J., dissent- ing). As we explain below, a holding that the forfeiture against McGlory's property was void does not equate to a ruling that he is entitled to a return of the property or mon- etary relief from the government, because a Rule 60(b) motion is not a claim for the return of

213 F.3d 147, *157; 2000 U.S. App. LEXIS 11584, **27;

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*157 property. McGlory will therefore have to pursue further proceedings to recover his property, and it is in these proceedings **28 that the government may in- voke defenses that are predicated on McGlory's alleged delay.

The District Court ruled that McGlory's motion to vacate was barred by the doctrine of laches. HN9 The doctrine of laches hails from equity, and is invoked when two essential elements exist: inexcusable delay in insti- tuting suit, and prejudice resulting to the defendant from such delay. See Central Penn. Teamsters Pension Fund v. McCormick Dray Line, Inc., 85 F.3d 1098, 1108 (3d Cir.

1996). We conclude that the District Court was incorrect to have applied laches analysis to McGlory's motion.

McGlory's motion was to vacate the forfeiture judg- ments against him and is treated, as discussed above, as arising under Fed. R. Civ. P. 60(b). It is understandable why the District Court may have thought that the doctrine of laches applied. A motion under Rule 60(b) is equitable in nature, so it is reasonable to believe that equitable doc- trines apply. See Assmann v. Fleming, 159 F.2d 332, 336

(8th Cir. 1947) ("The proceeding by motion to vacate a judgment is not an independent suit in equity but a legal remedy in a court of law; yet the relief is equitable in character and must **29 be administered upon equi- table principles."); see also Winfield Assocs., Inc. v. W.L. Stonecipher, 429 F.2d 1087, 1090 (10th Cir. 1970) ("Rule

60(b) . . . specifically preserves the right to attack a judg- ment by an independent equitable action."); In re Brown,

68 F.R.D. 172, 174 (D.D.C. 1975) (describing Rule 60(b)

as codification of methods of gaining equitable relief from judgments).

In light of our ruling that the judgment against McGlory in the electronic equipment forfeiture is void, however, no passage of time can transmute a nullity into a binding judgment, and hence there is no time limit for such a motion. It is true that the text of the rule dictates that the motion will be made within "a reasonable time." See Fed. R. Civ. Proc. 60(b). However, nearly overwhelm- ing authority exists for the proposition that there are no time limits with regards to a challenge to a void judgment because of its status as a nullity; thus laches is no bar to recourse to Rule 60(b)(4). See Hertz Corp. v. Alamo Rent-A--Car, Inc., 16 F.3d 1126, 1130-31 (11th Cir. 1994)

(collecting cases); Briley v. Hidalgo, 981 F.2d 246, 249

(5th Cir. 1993); Katter v. Arkansas La. Gas Co., 765 F.2d

730, 734 (8th Cir. 1985); **30 In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir. 1985); Misco Leasing, Inc. v. Vaughn, 450 F.2d 257, 260 (10th Cir. 1971); Austin v. Smith, 114 U.S. App. D.C. 97, 312 F.2d 337, 343 (D.C. Cir. 1962); Moore v. Positive Safety Manufacturing Co.,

107 F.R.D. 49, 50 (E.D. Pa. 1985); see also Rodd v. Region Constr. Co., 783 F.2d 89, 91 (7th Cir. 1986) ("The rea- sonable time criterion of Rule 60(b) as it relates to void judgments, means no time limit because a void judgment is no judgment at all.") (citation and quotation omitted). We agree that no passage of time can render a void judgment valid, and a court may always take cognizance of a judgment's void status whenever a Rule 60(b) motion is brought. Without addressing any other reason to bar a Rule 60(b) motion that attacks a judgment as void, n6

213 F.3d 147, *158; 2000 U.S. App. LEXIS 11584, **30;

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*158 we hold that laches may not be used to preclude such a motion. Cf. Micro Leasing, 450 F.2d at 260 ("The cases say that a void judgment acquires no validity as the result of laches on the part of the adverse party. We are not asked to consider whether under any particular circumstances a movant under Rule 60(b) **31 may be estopped or precluded from filing such a motion.")

(footnote omitted).

n6 We also note that McGlory's delay vis-a-- vis attacking the judgment (as opposed to inquiring into the disposition of his property, an issue that is not before us) was clearly not unreasonable. He maintains that he promptly sought relief from the judgments against him once he learned of them in

1994, and the District Court made no factfindings that indicate that McGlory learned of the judgments at an earlier date. Nor does this appear to be a situ- ation in which McGlory can be accused of having waived his ability to bring a Rule 60(b) motion, as he did not previously launch a Rule 60(b) attack against the judgments. Cf. Beller & Keller v. Tyler,

120 F.3d 21, 23-24 (2d Cir. 1997) (acknowledging that laches cannot give a void judgment validity, but suggesting that a motion may be untimely when the voidness challenge is raised on a successive motion to vacate).

Though we hold that laches is not available to pre- clude **32 a claimant from attacking a void judgment, our holding is not to be construed as allowing a peti- tioner to sit on his or her rights. It is true that if a court is able to determine that a prior judgment is indeed void, it should declare it as such, but that does not mean that other remedies, such as the actual return of property or its cash value, are immune from defenses of waiver or laches. In other words, we conclude that the potential prejudice that arises from such delay is best dealt with outside of the Rule 60(b) context.

Whether McGlory unreasonably delayed in seeking recovery of his property in general, which is the laches issue considered by the District Court, is a matter distinct from whether the judgment that forfeited the property was void. That is not, however, a matter that is before this Court. We are only reviewing the denial of McGlory's

motion to vacate. Even if he prevails on this motion, that does not mean that he is entitled to any monetary relief or relief in the form of a transfer of property. It has been held that Rule 60(b) does not provide for such remedies. See United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356-57 (5th Cir. 1972)

**33 (holding that monetary remedy for void forfeiture, which depends on waiver of sovereign immunity, lies not in Rule 60(b) but in 28 U.S.C. § 1346(a)); see also United States v. $119,980.00, 680 F.2d 106, 107-08 (11th Cir.

1982) (holding Rule 60(b) may not be used to impose affirmative relief beyond setting aside prior judgment); United States v. One Douglas A-26B Aircraft, 662 F.2d

1372, 1377 (11th Cir. 1981) (same). In order to obtain such relief, McGlory may have to look elsewhere.

It is in the pursuit of his remedies that McGlory's delay, if any, will become an issue. Though the vacatur of the earlier judgment will be a powerful weapon for McGlory in such an effort, it will not decide the issue. McGlory would have to act within the confines of what- ever legal framework surrounds the legal or equitable remedy he will elect to pursue. At that time, the District Court may consider whether the doctrine of laches ap- plies, or whether the six-year statute of limitations for suits against the federal government is applicable. See 28

U.S.C. § 2401(a). It would appear that the federal statute applies, see Menkarell v. Bureau of Narcotics, 463 F.2d

88, 91 (3d Cir. 1972) **34 (applying six-year statute of limitations of 28 U.S.C. § 2401(a) in attempt to recover forfeited property), even if the action is characterized as equitable, see, e.g., Blassingame v. Secretary of Navy,

811 F.2d 65, 70 (2d Cir. 1987) ("The merger of law and equity assured that section 2401(a) covers both legal and equitable actions.").

If the District Court concludes laches analysis to be in order anyway, it will have to determine the interplay between laches and the relevant statute of limitations, giv- ing consideration to the cases that indicate that if a suit is brought within the statutory period, laches would gen- erally be unavailable. See, e.g., Central Penn. Teamsters Pension Fund v. McCormick Dray Line, Inc., 85 F.3d

1098, 1108 (3d Cir. 1996); Henry v. United States, 46

F.2d 640, 642 (3d Cir. 1931) ("While there is no statute of limitations in equity, yet it generally in this respect follows the law, and will, in the absence of special exten- uating circumstances . . . regard the delay as inexcusable and refuse relief after the time

213 F.3d 147, *159; 2000 U.S. App. LEXIS 11584, **34;

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*159 of the statute of limitations in that particular local- ity has expired."); see also Ikelionwu v. United States, 150

F.3d 233, 238 (2d Cir. 1998) **35 (declining to invoke laches when suit to recover forfeited property brought within statutory period). Also, insofar as it considers the doctrines of equity, the District Court will also have to consider whether the party asserting the defense of laches has clean hands. See United States v. Marolf, 173 F.3d

1213, 1219 (9th Cir. 1999) (refusing to reverse district court's rejection of laches defense in light of government's

"inexplicable failure to remedy" an improper administra- tive notice or initiate proper judicial proceedings).

We reference the foregoing authority not to express any view on the merits but only to flag important issues that the District Court did not appear to consider in its analysis of laches. At all events, we make no ruling on issues of inexcusable delay because all we have before us is the motion to vacate, and, as we have held, laches analysis does not apply to such a motion. Finally, in ruling that the judgment in the electronic equipment forfeiture is void, we offer no opinion as to whether the government is prohibited from reinitiating the forfeiture action against McGlory or if the passage of the relevant statute of lim- itations has been tolled. **36 The District Court will have to consider the issue should the government attempt to reinitiate such proceedings.

The judgment of the District Court will be vacated and the case remanded for further proceedings consistent with this opinion.

CONCURBY: ALITO DISSENTBY: ALITO DISSENT:

ALITO, Circuit Judge, concurring and dissenting:

I join parts I and III of the opinion of the court and con- cur in the judgment insofar as it relates to No. 98-3578. However, I respectfully dissent from the court's disposi- tion of No. 98-3579 and from part II of the opinion of the court, which adopts an interpretation of due process that has no basis in prior decisions of the Supreme Court or

our circuit.

The question before us is not whether it would be good policy to require the government in forfeiture proceedings to provide notice to interested parties by some means su- perior to the mail. Rather, the question is whether the government complied with the minimum requirements of the Due Process Clause by sending notice by mail (return receipt requested) to McGlory at the facility where he was detained. Under Supreme Court precedent, this met con- stitutional standards. The Supreme Court has repeatedly referred to the **37 service of notice by mail as suffi- cient to satisfy the minimum requirements of due process. See, e.g., Tulsa Prof'l Collection Services v. Pope, 485

U.S. 478, 490, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800,

77 L. Ed. 2d 180, 103 S. Ct. 2706 (1983) ("Notice by mail or other means as certain to ensure actual notice is a min- imum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of a party . . . ."). n1

n1 On only one occasion has the Court held that notice by mail sent to the addressee's correct address was not constitutionally adequate. In Covey v. Town of Somers, 351 U.S. 141, 100 L. Ed. 1021,

76 S. Ct. 724 (1956), the Court held that due pro- cess was violated where notice of foreclosure for delinquent taxes was mailed to a person who was known to be incompetent, lived alone, and had no guardian, no relatives in the state, and no other person who was able to help her with her taxes. Id. at 146-47. Thus, Somers hardly supports the majority's holding here.

**38

The majority seemingly acknowledges that service by mail sent to the addressee's current address is constitution- ally adequate in almost all other contexts, but the majority holds that such notice may not be sufficient when sent to a detainee or prisoner. Why? Why is it that mail sent to, say, an inexpensive long-term--occupancy hotel is reasonably calculated under all the

213 F.3d 147, *160; 2000 U.S. App. LEXIS 11584, **38;

46 Fed. R. Serv. 3d (Callaghan) 1327

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*160 circumstances to apprise an interested party of the pendency of a forfeiture action but mail sent to a jail or prison may not be? The answer must be that there is a significantly higher probability that mail sent to such hotels will reach the addressees than is the case with mail sent to a jail or prison. But where is the evidence that this is so? The majority studiously avoids this point-- for the very good reason that no evidence whatsoever to this effect has been adduced, by McGlory, the majority in this case, or any other judicial opinion of which I am aware. Such systemic problems may or may not exist; I don't know; and I doubt that my colleagues do either. But without such evidence, there is no logical basis for the majority's decision.

It may well be that it would be advisable for those with legislative or **39 rulemaking authority to require the government in forfeiture cases to provide better no- tice than is required by the minimum standard imposed by due process. Congress has recently manifested con- cern about the fairness of federal forfeiture procedures and has enacted the Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202 (2000), to remedy the problems that it found. This Act, however, does not require that notice of forfeiture be provided by some means better than the mail, but perhaps Congress should consider that question. Congress has the capabil- ity--which the federal courts plainly lack--to investigate whether notice of forfeiture sent by mail fails to reach the addressee in a significant number of cases. (The mere fact that McGlory and a handful of other federal prisoners and detainees have claimed that they did not receive notice sent by mail to their facilities is hardly enough to show the existence of a serious problem.) Congress also has the ability to craft a rule that is specifically targeted to deal with any problem it finds to exist. It can specify the ad- dressees to which any such rule applies--e.g., all persons to whom notice is provided, only **40 those in custody, only those in custody on federal charges, or only those

in federal facilities. And it can provide that any new rule will not have retroactive effect. A court, in interpreting the Due Process Clause, lacks such flexibility.

I have three additional observations about the major- ity's decision. First, although the decision formally applies only to notices of forfeiture sent by the federal govern- ment to persons in custody on federal charges, its logic extends to any forfeiture notices sent to any persons in custody. If notice of a federal forfeiture proceeding that is sent by mail to a person in a state facility on federal charges is not reasonably calculated under all the cir- cumstances to apprise that person of the pendency of the federal forfeiture proceeding, notice of a state forfeiture proceeding that is sent by mail to another person held in the same facility on state charges cannot be reasonably calculated to inform that person of the pendency of the state forfeiture proceeding. Thus, the majority's decision has a broad logical sweep.

Second, the majority's standard regarding the ade- quacy of mail handling procedures is left open-ended and will almost certainly **41 lead to confusion and litigation. Under the majority's decision, notice by mail to a detainee or prisoner satisfies due process only if the facility's mail handling procedures at the time in ques- tion were reasonably calculated to ensure that the notice reached the addressee. See Maj. Op. p. 14. What does this mean in practical terms? Must there be a written policy? Must the addressee sign a receipt? May delivery of the mail be entrusted to other detainees or prisoners? Must the mail be handed to the addressee personally? One or more rounds of litigation will almost certainly be required to answer these and related questions.

Third, although the majority has attempted to devise a rule that will not impose an undue evidentiary burden in cases in which forfeiture judgments are sought to be vacated for lack of proper

213 F.3d 147, *161; 2000 U.S. App. LEXIS 11584, **41;

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*161 notice, the majority's decision may well prove quite difficult to administer. As previously noted, the ma- jority's mail handling standard is murky, and attempting to establish what procedures were followed at various points in the past at the numerous state and federal facilities in which federal detainees and prisoners have been held may not be easy. And if the majority's **42 decision is ex-

tended to state detainees and prisoners, as I think logic requires, the problem will be magnified.

I would hold that due process was satisfied and leave it to the legislative or rulemaking processes to decide whether additional notice requirements should be im- posed in forfeiture cases.


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