Whiting v. United States

United States Court of Appeals
For the First Circuit

No. 99-1141

DARRYL WHITING,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Boudin and Lipez, Circuit Judges,

and Casellas,* District Judge.

Darryl Whiting on brief pro se.
Elizabeth L. Prevett, Federal Defender Office, with whom
Leo T. Sorokin was on brief for the Federal Defender Office,
Amicus Curiae.
Richard L. Hoffman, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
the United States.

*Of the District of Puerto Rico, sitting by designation.
 November 13, 2000

BOUDIN, Circuit Judge. This appeal raises the question

of what is constitutionally adequate notice to a prisoner of

civil proceedings to forfeit assets related to federal drug

crimes. The story begins with the indictment, on December 11,

1990, of Darryl Whiting for a series of drug-related offenses.

Less than a year later, on July 24, 1991, Whiting was convicted

of cocaine distribution, 21 U.S.C. § 841(a)(1) (1994),

conducting a continuing criminal enterprise, id. § 848, and

money laundering, 18 U.S.C. § 1956(a)(1) (1994). This court

affirmed Whiting's conviction and sentence on appeal. United

States v. Whiting, 28 F.3d 1296, 1312 (1st Cir. 1994).1

On December 12, 1990, the day after Whiting's

indictment, the United States filed a civil complaint for

forfeiture in rem of a piece of real property--the so-called

Crown Social and Recreation Hall--that Whiting (and two others)

owned at 48 Geneva Avenue in Roxbury, Massachusetts. Federal

1
Multiple petitions for certiorari to the Supreme Court
filed by Whiting's co-defendants, whose convictions and
sentences were also affirmed in this decision, were denied. See
Bowie v. United States, 513 U.S. 956 (1994); Dixon v. United
States, 513 U.S. 994 (1994); Carmichael v. United States, 513
U.S. 994 (1994); Wadlington v. United States, 513 U.S. 1009
(1994).

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law authorizes forfeiture of real property that is used or

intended to be used to commit or facilitate the commission of

drug offenses. 21 U.S.C. § 881(a)(7) (1994).

The district court directed that notice of the

forfeiture proceeding be published in a local newspaper and that

the complaint and related papers be served upon Whiting by

certified mail at his home address and at the Deer Island House

of Correction, a Massachusetts state facility where Whiting was

then being held. Notice was published in The Boston Globe three

times within the next thirty days. The government mailed

notices as directed, but the certified mailing to Whiting's home

was returned unopened; the government now concedes that the Deer

Island mailing was also sent but not delivered, and eventually

returned by the Marshals Service.

Whiting having failed to object to the forfeiture, the

government on March 28, 1991, moved for entry of default as to

the 48 Geneva Avenue property. See Fed. R. Civ. P. 55(a).

Notice of the default was sent shortly thereafter to Whiting by

certified mail at the Plymouth County House of Correction to

which Whiting had been transferred from Deer Island on December

21, 1990. A copy of the government's default motion was also

sent to Whiting's counsel in his criminal case.

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 At Whiting's arraignment in the criminal case on April

24, 1991, multiple references to the civil forfeiture action

were made in Whiting's presence by the court, the government,

and Whiting's own counsel. At the request of Whiting's

attorney, the government re-sent the original complaint and

related papers by certified mail to the Plymouth County House of

Correction. Although the government received a return receipt

card postmarked May 9, 1991, signed by a prison official,

Whiting denies ever having received the mailing and, while he

admits he knew of the government's earlier motion for default

and discussed it with his attorney, he says he thought that the

default would be withdrawn until he had been served with a

complaint and related papers.

Since Whiting took no action to challenge the default,

a default judgment and order of forfeiture were entered against

the property on July 8, 1991, during the course of Whiting's

criminal trial. See Fed. R. Civ. P. 55(b). Many months later,

on April 20, 1992, Whiting wrote to the U.S. Attorney who had

handled the civil forfeiture proceeding, claiming to have seen

a newspaper notice that the property was shortly to be

auctioned. Whiting said that he had been "waiting for a date or

notice from the court" to challenge the forfeiture and referred

to a lawyer whom he had hired on the matter. Neither Whiting

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nor his lawyer took any further action, and the United States

conveyed the property to purchasing mortgagees on October 14,

1992.

A second forfeiture proceeding is also at issue on this

appeal. It concerns two gold and diamond rings allegedly

belonging to Whiting that the Drug Enforcement Administration

("DEA") seized from Whiting's then-fiancee, Deirdre McGraw, on

March 22, 1991. By statute, valuables obtained in exchange for,

or traceable to, drug transactions are subject to forfeiture.

21 U.S.C. § 881(a)(6) (1994). Because the value of the rings

was thought to be $500,000 or less, DEA sought to forfeit the

rings by administrative proceedings rather than through court

process. 21 U.S.C. § 881(d) (1994); 19 U.S.C. §§ 1607(a), 1608,

1609 (1994); 21 C.F.R. §§ 1316.75, 1316.77 (2000).

On June 3, 1991, DEA sent notice of both the seizure

and proposed administrative forfeiture of the rings to Whiting

by certified mail at his home address and at the Plymouth County

House of Correction. The DEA separately mailed notice to

McGraw. The notices sent to the separate home addresses of

Whiting and McGraw were returned unopened, but DEA received a

certified mail receipt card postmarked June 11, 1991, signed by

the "mail officer" at the Plymouth County House of Correction.

Following the certified mailings, DEA also published notice of

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the proposed forfeiture in USA Today on three occasions in June

1991. See 19 U.S.C. § 1607(a) (1994); 21 C.F.R. § 1316.75

(2000).

An affidavit later supplied by the mail officer who

signed for Whiting's certified mailing said that, under the

officer's routine procedure, receipt of that mailing should have

produced an acknowledgment form signed by Whiting, which should

then have been kept in the jail's records. However, the officer

did not recollect the particular delivery to Whiting, nor could

prison officials later find the form that would normally be

signed by the inmate. The affiant added that the prison

official who searched for the form speculated that "the form may

have been lost or misplaced" when the Plymouth County House of

Correction was relocated around June 1994.

The notice prescribed a July 2, 1991, deadline for

contesting the administrative forfeiture, and also allowed

thirty days from receipt of the notice to request remission or

mitigation. When both deadlines had apparently expired without

any objection, DEA, on July 22, 1991, declared the rings

forfeited to the United States. See 19 U.S.C. § 1609 (1994); 21

C.F.R. § 1316.77 (2000). Nearly a year later, on June 9, 1992,

Whiting wrote to the U.S. Attorney's Office in Boston, asking

about the forfeiture status of the rings. In response, he was

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advised to make inquiry of a named DEA agent, but Whiting then

waited three years until November 1995 to write to the agent

asking for return of the rings. In the meantime, on November

25, 1992, the rings had been sold by the United States for

$4,000.

This brings us to the proceedings in the district court

that led directly to this appeal. On March 6, 1996, Whiting

filed in the district court a pro se motion for return of

property. See Fed. R. Crim. P. 41(e). The clerk's office in

the district court apparently filed the motion as part of

Whiting's then-pending habeas action, Whiting v. United States,

Civ. A. No. 95-11885-REK, which the district court dismissed on

October 24, 1996. When this court affirmed the denial of

Whiting's habeas petition, it remanded the matter to the

district court to consider Whiting's motion for return of

property. Whiting v. United States, 215 F.3d 1313, 1998 WL

1281294, at *2 (1st Cir. 1998) (per curiam) (unpublished table

decision).

Although the motion for return of property was

originally addressed to the rings, Whiting moved after our

remand to include in his demand the return of the 48 Geneva

Avenue property, as well as listed personal property which he

alleged to have been located at that premises (the government

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denies ever having seized such property). Whiting v. United

States, 29 F. Supp. 2d 25, 27-28 (D. Mass. 1998). On November

30, 1998, the district court allowed the motion to amend the

complaint but denied the motion for return of property as

amended. Id. at 27, 31-32.

In its decision, the district court denied Whiting's

motion for an evidentiary hearing on the matter, because there

was no adequate proffer of specific, material evidence or other

reason to believe that anything material would be adduced.

Whiting, 29 F. Supp. 2d at 27-28. Then, in an orderly fashion,

the court found that Whiting was precluded from attacking the

forfeiture of the rings because he had had sufficient notice of

the forfeiture and, independently, because his claim to the

rings was barred by laches. Id. at 30-31. As to the 48 Geneva

Avenue property, the court found that adequate notice had been

given and, independently, that Whiting had had "notice in fact"

of the forfeiture proceeding. Id. at 31-32.

Whiting now appeals from the district court's judgment,

and we affirm. The basis for our decision is that Whiting

received constitutionally adequate notice of both forfeitures

because notice was given by certified mail properly addressed to

him at the prison in which he was actually being held, and the

forfeitures therefore rested upon valid judicial or

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administrative rulings. We reach and decide this constitutional

issue only because the alternative grounds (actual notice and

laches) given by the district court do not themselves suffice to

decide the entire case. To explain why this is so, we begin

with the alternative grounds adopted by the district court.

With respect to the 48 Geneva Avenue property, the

district court held that--even if Whiting did not receive the

mailed notice--it was legally sufficient that he had "notice in

fact" of the forfeiture proceeding from other sources, Whiting,

29 F. Supp. 2d at 31-32. Cf. United States v. Approximately

2,538.85 Shares of Stock, 988 F.2d 1281, 1285 (1st Cir. 1993).

The civil forfeiture was discussed in detail in Whiting’s

presence at his April 24, 1991, arraignment in the criminal

case, see Whiting, 29 F. Supp.2d at 31-32, and, as the district

court might also have noted, Whiting has admitted that he and

his attorney did receive notice of the government's March 28,

1991, motion for default judgment.

Whiting's response, that such informal notice was

neither timely nor detailed enough to provide effective notice,

is unpersuasive. Whiting had ample time after the April 24,

1991, hearing to contest the forfeiture before the entry of the

default judgment on July 8, 1991; he could also have filed a

motion to set aside the default judgment and vacate the order of

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forfeiture, Fed. R. Civ. P. 60(b), before the property was

conveyed on October 14, 1992. If detail was lacking at the

hearing, it was provided by Whiting's receipt of the motion for

default judgment.

Arguing that post-default notice in fact is not enough,

amicus curiae quotes Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306 (1950), for the proposition that a party must

be able to "choose for himself whether to appear or default,

acquiesce or contest," id. at 314 (emphasis added by amicus

curiae). Yes, this is the Supreme Court’s language, but the

gist of Mullane is that due process is about notice sufficient

to ensure a meaningful opportunity to be heard. Since Whiting

had not received actual notice prior to entry of default, the

district court would surely have given a motion to vacate the

default as much consideration as a timely-filed answer to the

original complaint. Thus, the district court's alternative

ground would alone support the forfeiture of the Geneva Avenue

property.

With the rings the district court's alternative ground

(laches) is weaker. One might ask why laches is even a possible

bar since there is a six-year statute of limitations, 28 U.S.C.

§ 2401(a) (1994), which is arguably applicable, Boero v. DEA,

111 F.3d 301, 305 n.5 (2d Cir. 1997), and Whiting's motion for

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return of property was brought within six years of the seizure

of the rings.2 But there is some precedent for the view that in

dealing with motions to return property, equitable

considerations are at play and a request to recover wrongly-

seized property may be barred by laches even where a statute of

limitations exists and has been satisfied.3

Assuming arguendo that a laches defense is permissible,

it required a showing both of unreasonable delay by Whiting and

prejudice to the government. Murphy v. Timberlane Reg'l Sch.

Dist., 22 F.3d 1186, 1189 (1st Cir.), cert. denied, 513 U.S. 987

(1994). The district court held that it was unreasonable for

Whiting to wait over three years after he had actual notice that

a forfeiture proceeding was imminent before moving for return of

the rings and that prejudice to the government was shown by the

fact that records that might have shown his actual receipt of

2
Of course, Whiting's suit within six years of seizure would
not save him if there were a valid judgment forfeiting the rings
to the United States, since that judgment could only be attacked
within the time limits provided by the rules. See Fed. R. Civ.
P. 60. But, since Whiting's motion was filed within six years
of the seizure of the rings, the government cannot invoke the
statute of limitations to preclude Whiting from seeking to
litigate the validity of the earlier judgment for lack of
notice, which is why it has invoked the laches doctrine as a
fallback.
3
E.g., Cornetta v. United States, 851 F.2d 1372, 1378 (Fed.
Cir. 1988); United States v. Mulligan, 178 F.R.D. 164, 166 (E.D.
Mich. 1998); but cf. Ikelionwu v. United States, 150 F.3d 233,
237-38 (2d Cir. 1998).

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the certified mail notice at the Plymouth County House of

Correction were no longer available. Whiting, 29 F. Supp. 2d at

31.

Whiting's explanation for his three-year delay is

unconvincing, Whiting, 29 F. Supp. 2d at 31, but we are not

persuaded that the government, which has the burden of proof on

both elements, Ansin v. River Oaks Furniture, Inc., 105 F.3d

745, 757 (1st Cir.), cert. denied, 522 U.S. 818 (1997), has yet

proved prejudice from the delay. Admittedly, the affidavit of

the mail officer said that another prison official had searched

for the form in question and had surmised that it had been lost

when the jail was relocated in June 1994. But we think that, to

prove prejudice, the government would have to show that its

prisoner signatures cards were normally retained for at least

five years and that the critical files were likely lost in the

move.

Of course, on remand the government might still be able

to give a firmer foundation to its claim of prejudice. Yet

there are limits to how far courts need to strain to avoid

facing a constitutional question, cf. Lowe v. SEC, 472 U.S. 181,

212 (1985) (White, J., concurring), and for us to remand for

further proceedings, which might or might not moot the

constitutional question, seems neither compulsory nor prudent.

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Since the question is a recurring one, we therefore turn to the

constitutional issue: whether certified mail notice, sent to

the prisoner at the proper address, affords due process in a

civil forfeiture case.

Due process requires the government to afford an owner

"notice and an opportunity to be heard" before civilly

forfeiting his property, United States v. James Daniel Good Real

Prop., 510 U.S. 43, 46 (1993), but actual receipt of notice by

the defendant is not automatically required. Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Rather,

Mullane said that due process requires the provision of "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." Id. "Reasonably

calculated" means likelihood, not certainty.4

If the Supreme Court's language is taken literally,

then the Mullane test is satisfied here. The government sent a

certified letter to Whiting at the prison facility in which

Whiting was actually being held. The mail is a well-recognized

4Mullane itself indicated that mailing notice to persons at
their last known address, plus newspaper publication, would be
sufficient where a common trust sought to settle its accounts.
Mullane, 339 U.S. at 317-19; see also Tulsa Prof'l Collection
Servs., Inc. v. Pope, 485 U.S. 478, 490-91 (1988) (same as to
notice to creditors of a deceased's estate).

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means of communicating important information, see, e.g.,

Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799-800

(1983), and certified mail has further safeguards (i.e.,

signature of recipient upon delivery and return of the signed

receipt card). Absent proof to the contrary, it is a fair

assumption that properly addressed certified letters to

prisoners are ordinarily delivered.

If the question were solely one of best practices, the

right answer would likely be for the government to furnish

evidence of actual delivery to an inmate. Even though

certified mail is presumptively well calculated to supply

notice, proof of actual delivery would give better assurance and

is arguably quite feasible. Cf. Mennonite Bd. of Missions, 462

U.S. at 799-800. Where the claimant is being held in a federal

facility, the federal government has control of the prisoner.

And, where as here, the inmate is being held in a state facility

by arrangement with federal authorities, the latter can

presumably stipulate that forfeiture notices are to be delivered

to the inmate and a signature secured from the inmate or the

delivering guard attesting to delivery.

However, there is daylight between desirable policy and

the bare minimum required by the Constitution. Mullane's

"reasonably calculated" standard, with its emphasis on

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reliability rather than certainty, has been consistently

reaffirmed by the court.5 The only arguable exception--Covey

v. Town of Somers, 351 U.S. 141, 146-47 (1956), in which the

Supreme Court found that mailed notice to a known "unprotected

incompetent" was insufficient--involved a clearly

distinguishable situation. And, if it is somewhat mechanical,

the Mullane formula is also easy to apply. In all events, it is

for the Supreme Court to alter or depart from longstanding

precedent. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).

Among circuits that have considered the issue, a clear

plurality--the Sixth, Seventh, Ninth, and Tenth Circuits--hold

that certified mail to a prisoner is presumptively sufficient.6

Respected judges in other circuits have taken a different view,

but these circuits themselves have not coalesced around a single

alternative. The Second Circuit has held that prisoner receipt

of notice is required, if a federal criminal case is pending

against a federal inmate; the Third Circuit says mailing is

5See, e.g., Tulsa Prof'l Collection Servs., 485 U.S. at 490;
Greene v. Lindsey, 456 U.S. 444, 455-56 (1982); Robinson v.
Hanrahan, 409 U.S. 38, 39-40 (1972) (per curiam); Schroeder v.
City of New York, 371 U.S. 208, 211-13 (1962); Walker v. City of
Hutchinson, 352 U.S. 112, 115-16 (1956).
6
United States v. Tree Top, 129 F.3d 1266, 1997 WL 702771,
at *2 (6th Cir. 1997) (unpublished table decision); Krecioch v.
United States, 221 F.3d 976, 981 (7th Cir. 2000); United States
v. Lido Motel, 135 F.3d 1312, 1315-16 (9th Cir. 1998); United
States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996).

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adequate if the government offers proof that prison internal-

delivery procedures are adequate; and the Eighth Circuit

seemingly goes furthest to adopt Whiting's position.7

Needless to say, the government must show, if the issue

is contested, that the notice was mailed to the prison in which

the claimant was in fact being held. See Giraldo, 45 F.3d at

511; Krecioch, 221 F.3d at 980; cf. Robinson, 409 U.S. at 40;

Sarit v. DEA, 987 F.2d 10, 14-15 (1st Cir.), cert. denied, 510

U.S. 888 (1993). Similarly, if the government knew that mail

delivery in a particular prison was unreliable but sent the

notice by this means without any other precaution, mail delivery

would not satisfy due process. Here, there are no allegations

of this kind nor of any other special circumstance that might

warrant a departure from Mullane's general rule.

It is well to be realistic about the situation: given

the incentives, inmate denials that mailed notice was actually

received are doubtless much more common than misdelivery, and

7 Weng v. United States, 137 F.3d 709, 710 (2d Cir. 1998)
(Leval, J.) (federal prison); United States v. One Toshiba Color
Television, 213 F.3d 147, 155 (3d Cir. 2000) (en banc) (Becker,
C.J.) (cited with approval by United States v. Minor, -- F.3d --
, 2000 WL 1288668, at *6 (4th Cir. 2000)); United States v. Five
Thousand Dollars in U.S. Currency, 184 F.3d 958, 959-60 (8th
Cir. 1999) (federal prison); United States v. Woodall, 12 F.3d
791, 794-95 (8th Cir. 1993) (notice to local jail insufficient
where inmate says that he was on bail at a different residence
known to the government).

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knowledge is probably widespread among defendants in drug cases

that the government does look to harvest assets from drug

dealers incident to criminal cases. Still, it would be more

comforting to see the government turn square corners and secure

notice of actual receipt. At oral argument, we were encouraged

to think that the government may be moving in this direction.

Affirmed.

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