January 19, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1454
UNITED STATES,
Appellee,
v.
JAMES GIRALDO,
Defendant, Appellant.
ERRATA SHEET
This opinion of this court issued on January 19, 1995 is
amended as follows:
On page 4, line 20, replace the word "know" with the word
"known."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1454
UNITED STATES,
Appellee,
v.
JAMES GIRALDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
James Giraldo, on motion.
January 19, 1995
Per Curiam. Appellant James Giraldo appeals from
the denial by the district court of his motion for the return
of property seized by the United States Customs Service.
I.
Giraldo was stopped for inspection by Customs
officials at the Luis Munoz Marin International Airport in
Puerto Rico in February 1993. He had arrived on a flight
from Aruba, N.A. An x-ray, to which Giraldo consented,
showed bulges in his intestines. He then was given a
laxative and expelled about 50 pellets of heroin. He was
charged with one count of possessing heroin with the intent
to distribute it in violation of 21 U.S.C. 841(a)(1) and
one count of importing heroin into the Customs Territory of
the United States from Colombia in violation of 21 U.S.C.
952(a). The court appointed a Federal Public Defender to
represent Giraldo. On March 31, 1993, Giraldo pleaded guilty
to both counts. On June 28, 1993, the district court
sentenced him to concurrent terms of 57 months imprisonment
and four years of supervised release.
Almost one year later, on March 1, 1994, Giraldo
filed a motion for the return of property under Fed. R. Crim.
P. 41(e).1 He claimed that when he was arrested at the
1. Rule 41(e) provides that "[a] person aggrieved by . . .
the deprivation of property may move the district court for
the district in which the property was seized for the return
of the property on the ground that such person is entitled to
lawful possession of the property."
-3-
airport, government agents seized $2,126 in United States
currency and about $60,000 in Colombian pesos (the equivalent
of about $179 in United States dollars). Giraldo argued that
his Fourth Amendment rights had been violated by the seizure
and that the currency was not related to drug activity. He
also asserted that the government had not commenced any
forfeiture proceedings and that, as a result, the money
should be returned to him.
The government responded that the Customs Service
had, in fact, initiated an administrative forfeiture
proceeding concerning the money. According to the
government, notice of this proceeding had been mailed to
Giraldo in February and December 1993 and returned by the
United States Post Office to the Service. When Giraldo did
not respond in accordance with the procedures set forth in
the letter of December 1993, the money was forfeited in
January 1994. Therefore, the government argued, Giraldo was
prevented from pursuing any judicial remedies.
Giraldo filed a rebuttal in which he pointed out
that he had been incarcerated in December 1993 when the
letter was mailed and that the government knew this;
nonetheless, the Customs Service sent the letter to Giraldo's
home address in Flushing, New York. Having never received
notice of the administrative forfeiture, Giraldo maintained
that he had not had a meaningful opportunity to object to the
-4-
forfeiture. Further, Giraldo averred, the district court had
"ancillary" jurisdiction to consider his motion and could
treat it as a civil equitable action.
The district denied Giraldo's motion by endorsement
on March 24, 1994. This appeal ensued.
II.
In 21 U.S.C. 881(a), Congress has provided for
the civil forfeiture of property or money "furnished or
intended to be furnished by any person in exchange for a
controlled substance in violation of this subchapter, all
proceeds traceable to such an exchange, and all moneys . . .
used or intended to be used to facilitate any violation of
this subchapter . . . ." Id. 881(a)(6). Section 881(d)
states that the seizure of such property is to be
accomplished through the application of the customs laws, 19
U.S.C. 1600 et seq.
These laws provide that property worth $500,000 or
less is subject to administrative forfeiture without judicial
involvement. 19 U.S.C. 1607. The administrative process
requires the government to publish notice of its intent to
forfeit the property once a week for three weeks and to send
written notice to any party known to have an interest in the
property. Id. 1607(a); 21 C.F.R. 1316.75. A claimant
then has 20 days after the first publication to file a claim
and a cost bond of not less than $250. 19 U.S.C. 1608.
-5-
The filing of the claim and the bond stops the administrative
process and requires the seizing agency to hand the matter
over to the United States Attorney for the commencement of a
judicial forfeiture proceeding. Id.; see also 21 C.F.R.
1316.76(b). A claimaint's failure to follow these procedures
results in a declaration of forfeiture by the seizing agency
and the vesting of title in the United States. 19 U.S.C.
1609. This declaration has the same effect as a final decree
and order of forfeiture entered in a judicial proceeding.
Id.
Notwithstanding the above, district courts have
jurisdiction to entertain collateral due process attacks on
administrative forfeitures. United States v. Woodall, 12
F.3d 791, 793 (8th Cir. 1993) ("the federal courts have
universally upheld jurisdiction to review whether an
administrative forfeiture satisfied statutory and due process
requirements").
Whereas most challenges to forfeiture
would be foreclosed by a plaintiffs'
[sic] failure to utilize the mechanism
for obtaining judicial relief provided in
the forfeiture statute and regulations,
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.
Sarit v. United States Drug Enforcement Admin., 987 F.2d 10,
17 (1st Cir.) (citations omitted), cert. denied, 114 S.Ct.
241 (1993).
-6-
We have indicated that such challenges may be
pursued in a civil action under 28 U.S.C. 1331. See United
States v. Mosquera, 845 F.2d 1122, 1126 (1st Cir. 1988) (per
curiam). See also Marshall Leasing, Inc. v. United States,
893 F.2d 1096, 1102-03 (9th Cir. 1990) (district court had
jurisdiction over due process attack on forfeiture under
1331); Willis v. United States, 787 F.2d 1089, 1093 (7th Cir.
1986) (general federal question subject matter jurisdiction
exists over constitutional challenge to forfeiture), cited in
Sarit, 987 F.2d at 17. The fact that Giraldo termed his
motion as one under Rule 41(e) does not defeat the district
court's jurisdiction. "Where criminal proceedings against
the movant have already been completed, a district court
should treat a rule 41(e) motion as a civil complaint."
Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.
1992). See also United States v. Martinson, 809 F.2d 1364,
1366-67 (9th Cir. 1987) (motions to return property filed
under Rule 41(e) are treated as "civil equitable proceedings"
when criminal proceedings have been completed); cf. Woodall,
12 F.3d at 794 n. 1 (once criminal proceedings have ended, a
pleading by a pro se plaintiff which is styled as a Rule
41(e) motion should be liberally construed as seeking to
invoke the proper remedy).
In this situation, due process requires "notice
reasonably calculated, under all the circumstances, to
-7-
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 (1950).
[I]f the government is incarcerating or
prosecuting the property owner when it
elects to impose the additional burden of
defending a forfeiture proceeding,
fundamental fairness surely requires that
either the defendant or his counsel
receive actual notice of the agency's
intent to forfeit in time to decide
whether to compel the agency to proceed
by judicial condemnation.
Woodall, 12 F.3d at 794-95. See Robinson v. Hanrahan, 409
U.S. 38, 40 (1972) (per curiam) (the state violated
defendant's right to due process by mailing a notice of
forfeiture to defendant's home when it knew that he was in
jail). Thus, where a claimant is "residing at a place of the
government's choosing," the seizing agency must take steps to
locate the claimant in order to satisfy due process. Torres
v. $36,256.80 United States Currency, 25 F.3d 1154, 1161 (2d
Cir. 1994) (a "simple call" to the Bureau of Prisons often
suffices to determine where a claimant is serving his or her
sentence).
III.
Although the record now before this court indicates
that Giraldo did not receive constitutionally adequate notice
of the administrative forfeiture, we cannot be sure. If the
forfeiture is valid, Giraldo has waived judicial challenge to
-8-
it by failing to file a timely claim and post bond. See
Woodall, 12 F.3d at 795. If the notice turns out to have
been inadequate, the forfeiture is void. Id. The district
court then must set aside the declaration of forfeiture and
order the Customs Service to return the money to Giraldo or
to begin judicial forfeiture in the district court. See id.
In this latter instance, Giraldo need not post the $250 bond
if the district court determines that the government has
seized all of his money. See Onwubiko, 969 F.2d at 1399.
Given our disposition of the matter, we deny
Giraldo's motion for the appointment of counsel. However, he
is free to request such an appointment from the district
court. See Torres, 25 F.3d at 1161 (court ordered the
appointment of pro bono counsel based on the presence of
complex issues of law); Martinson, 809 F.2d at 1370 (court
permitted public defender to continue to represent claimant
on a motion for the return of property holding that it was an
"ancillary" proceeding for purposes of the Criminal Justice
Act, 18 U.S.C. 3006A(c)); United States v. 1604 Oceola, 803
F.Supp. 1194, 1196 (N.D.Tex. 1992) (listing sources for the
authority to appoint counsel in forfeiture actions).
We therefore summarily reverse the judgment of the
district court, see Local Rule 27.1, and remand the matter
for further proceedings.
-9-