United States v. McGlory

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

2-1-2000

USA v. McGlory
Precedential or Non-Precedential:

Docket 97-3057

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Filed February 1, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3057

UNITED STATES OF AMERICA

v.

REGINALD MCGLORY,
Appellant

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

Originally Argued April 5, 1999
Before: SLOVITER and ALITO, Circuit Judges,
ALARCON, Senior Circuit Judge*

Argued en banc November 8, 1999

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,
GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,
MCKEE, RENDELL, and BARRY, Circuit Judges

(Filed February 1, 2000)

Michael A. Young (Argued)
165 Christopher Street
New York, NY 10014

Attorney for Appellant
_________________________________________________________________

* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation when this case originally
was
argued April 5, 1999.
 Mary Houghton
Assistant United States Attorney
Harry Litman (Argued)
United States Attorney
Bonnie R. Schlueter
Assistant United States Attorney
633 United States Post Office and
Courthouse
Pittsburgh, PA 15219

Attorneys for Appellee

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
constitutionally adequate notice for the administrative
forfeiture of certain property seized by officers of the Drug
Enforcement Administration ("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 byfiling 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,1 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
_________________________________________________________________

1. Also before the en banc court are consolidated 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. Although those appeals involve the identical
parties and similar fact patterns as the present appeal, they raise
distinct legal issues and will be addressed hereafter in a separate
opinion.

2
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.

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 property, 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, federal 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, conspiracy 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
superseding indictment which added additional criminal
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

3
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 confinement at each
facility. This court has reviewed 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 the
purpose of this appeal. We note other references that
suggest that from approximately 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. S 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 administrative
forfeiture proceedings regarding the property covered by
DEA seizure numbers 52425 ($8,800 cash), 65613
(assorted clothing), 65615 (Louis Vuitton luggage), 2 66651
(Louis Vuitton luggage/briefcase), 65323 (miscellaneous
jewelry), and 67065 (cellular phone).3

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 receipt
_________________________________________________________________

2. The luggage is misnamed throughout the record as Louis Vitton. The
brand name is well known and the accurate name is Louis Vuitton.

3. 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 property listed at these seizure numbers
was seized from individuals other than McGlory, and McGlory does not
contend otherwise in this appeal. In addition, one other administrative
forfeiture (66645) involved 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.

4
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 between
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 property
seized until April 11, 1994 when he filed a pro se motion
under Rule 41(e) for the return of the seized property. 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) motion for the return of
the seized property to a Magistrate Judge 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 forfeitures, where we held that the notice given to
McGlory in two of three judicial forfeiture proceedings did
not satisfy 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 judicial 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 "correctly denied the Rule 41(e)
motion" and ordered 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 "[t]he
administrative forfeiture proceedings did not suffer from the
same defective notice problem as the judicial forfeiture
proceedings, see United States v. $184,505.01 In U.S.

5
Currency, 72 F.3d 1160 (3d Cir. 1995), since petitioner 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 order
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 reconsideration,
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 jurisdiction
to review the District Court's order of September 22, 1998.
We do not. McGlory only appealed the January 3, 1997
order.

The Federal Rules of Civil Procedure do not specifically
refer to a motion to reconsider but such motions, iffiled
within ten days of judgment, are generally 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).

Federal Rule of Appellate Procedure 4(a) provides 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 order 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 motion. See Fed. R.
App. P. 4(a)(4)(B)(i). However, 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

6
McGlory's Rule 59(e) motion on September 22, 1998,
McGlory could proceed 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, 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.

II.

The government states in its brief that "[t]he district court
may have lacked subject-matter jurisdiction over the entire
claim." United States Brief at 19. As we understand 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.

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 return of the property on the ground that such

7
 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
government return property seized from him and forfeited
by the DEA in administrative and judicial proceedings,4 as
well as property seized from him for which no forfeiture
proceedings had been instituted and for which the
government has failed to provide an accounting.

The civil forfeiture of property that constitutes the
proceeds of drug transactions is authorized by 21 U.S.C.
S 881(a).5 When the seized property is $500,000 or less, the
government may use the administrative forfeiture process
governed by the customs laws; this process entails no
judicial involvement. See 19 U.S.C. S 1607;6 21 U.S.C.
_________________________________________________________________

4. In this appeal, McGlory has not renewed his challenge to the notice
provided in the judicial forfeiture proceedings, although that issue is
before the court in the related appeals referred to in note 1 supra.

5. Section 881(a) provides in pertinent part:

The following shall be subject to forfeiture to the United States
and
no property right shall exist in them . . .

(6) All moneys, negotiable instruments, securities, or other things
of
value furnished or intended to be furnished by any person in
exchange for a controlled substance or listed chemical in violation
of
this subchapter, all proceeds traceable to such an exchange, and
all
moneys, negotiable instruments, and securities used or intended to
be used to facilitate any violation of this subchapter. . . .

6. Section 1607 provides:

If . . . the value of such seized vessel, vehicle, aircraft,
merchandise,
or baggage 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.

8
S 881(d).7 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 party known to have an
interest in the property. See 19 U.S.C.S 1607(a). If a
claimant files a claim and a cost bond within 20 days after
the first publication, 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, see 19 U.S.C. S 1608, which is the procedure
automatically followed for property valued over $500,000.
See 19 U.S.C. S 1610. 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. S 1609(a). This administrative
declaration has the same effect as a final decree and order
of forfeiture entered in a judicial proceeding. See 19 U.S.C.
S1609(b).

A district court ordinarily lacks jurisdiction to review the
DEA's administrative forfeiture proceedings. See Linarez v.
United States Dep't of Justice, 2 F.3d 208, 212 (7th Cir.
1993) ("[O]nce 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 return of property.").
However, "the federal courts have universally upheld
_________________________________________________________________

7. Section 881(d) states:

The provisions of law relating to the seizure, summary and judicial
forfeiture, and condemnation of property for violation of the
customs
laws; the disposition of such property or the proceeds from the
sale
thereof; the remission or mitigation of such forfeitures; and the
compromise of claims shall apply to seizures and forfeitures
incurred, or alleged to have been incurred, under any of the
provisions of this subchapter, insofar as applicable and not
inconsistent with the provisions hereof; except that such duties as
are imposed upon the customs officer or any other person with
respect to the seizure and forfeiture of property under the customs
laws shall be performed with respect to seizures and forfeitures of
property under this subchapter 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 officer.

9
jurisdiction to review whether an administrative 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 appropriate 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. Claggett, 3 F.3d 1355, 1356 (9th Cir. 1993) (reasoning
that "[i]f notice of the pending forfeiture was inadequate,
. . . 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)
("Whereas most challenges to forfeiture 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 judicial
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"[w]here
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 have ended should be
liberally 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 a district court has jurisdiction to consider a

10
claim that a person received inadequate notice of completed
administrative forfeiture proceedings, notwithstanding that
the claim was styled as a Rule 41(e) motion andfiled after
criminal proceedings had been completed. Accordingly, we
conclude that the District Court had jurisdiction to
consider McGlory's claim that he received inadequate notice
of the DEA's administrative forfeiture proceedings.

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 notice 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 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 office in the
Pittsburgh courthouse, a practice that McGlory contends
does not comport with due process.

The government argues that due process was satisfied 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 certified 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 19-20.8 Thus the parties are
_________________________________________________________________

8. Because McGlory has not contended in his brief on this appeal that
due process required more of the government than sending certified
mail, return receipt requested, to him at his place of confinement, we are
not faced with the issue before the court in United States v. Assorted
Jewelry, No. 98-3579, namely, whether the government must ensure
actual notice or take additional steps to increase the likelihood of
actual
notice, to prisoners in its custody. 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).

11
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 forward notice to the detainee when
the government, in whose custody the detainee is
committed, is uniquely well situated to ascertain the
detainee's whereabouts.

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 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 allegedly 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.

The statute governing administrative forfeitures requires,
in addition to notice by publication, "[w]ritten notice . . . to
each party who appears to have an interest in the seized
article." 19 U.S.C. S 1607(a). That this notice must be one
that satisfies the Due Process Clause is beyond
peradventure. A half century ago, the Supreme Court
declared that "[a]n elementary and fundamental
requirement 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." Mullane v. Central Hanover Bank
& Trust Co., 339 U.S. 306, 314 (1950).

Twenty-three years later, in Robinson v. Hanrahan, 409
U.S. 38 (1972), the Court addressed the question whether
a notice of forfeiture, mailed to a prisoner's home address
by the government entity in whose custody the 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:

12
 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 circumstances, it
cannot be said that the State made any effort to
provide notice which was `reasonably calculated' to
apprise appellant of the pendency of the forfeiture
proceedings.

Id. at 40. In so ruling, the Court suggested that the notice
provided "with respect to an individual whose name and
address are known or easily ascertainable," id., must be
such notice that can be put to practical use. It cited its
earlier decision in Covey v. Town of Somers, 351 U.S. 141
(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 (1983), that "[n]otice 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 interests 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.2d 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, "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 delegate
its responsibility by mailing notice to the Marshals Service

13
in Pittsburgh when the forfeiting agency is aware that the
intended recipient is confined elsewhere. Even assuming
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.

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, address and direct 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 institution 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., 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) ("When the
government is aware that an interested party is
incarcerated, 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) ("[I]f the DEA
had desired 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.

14
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
detainees are often moved between detention facilities and
McGlory could have been moved after the DEA ascertained
his whereabouts and sent the mail, "sending notice via the
Marshals Service was the most reasonable and efficient
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 notices, and the
government introduced no such evidence, using the
Marshals Service as a conduit for forfeiture notices may
exacerbate rather than cure the problem 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 duplicates 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 thefirst
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 little
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 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

15
hand a method more "reasonably calculated, under 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 notice 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
directed the notices to him at that address."9

We thus hold that, at a minimum, due process requires
that when a person is in the government's custody and
_________________________________________________________________

9. 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, "[c]ertified mail is dispatched and handled in transit as ordinary
mail." United States Postal Service, Domestic Mail Manual, Issue 54,
S912.1.1 (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
receipt, 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 manner. 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 adequate 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 circumstances,
notice by ordinary mail is sufficient to discharge the government's due
process obligations."); 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
magnitude between these types of mail. See, e.g., Tulsa Prof 'l Collection
Servs., Inc. v. Pope, 485 U.S. 478, 490 (1988) ("notice by mail"
sufficient
to provide actual notice of probate proceedings); Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 318-19 (1950) (trust
beneficiaries had to be notified "at least by ordinary mail" . . . which
is
"recognized as an efficient and inexpensive means of communication").
16
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
judgment to the government with regard to DEA seizure
numbers 52425, 65613, 65615, 66651, 65323 and 67065
and remand to the District Court for further proceedings
consistent with this opinion.10
_________________________________________________________________

10. 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
subjected to administrative or judicial forfeiture, although 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 reconsideration, did address
ten household items, and having determined that the government had
properly accounted for all but two of the ten disputed items, determined
that the government should return 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 forfeited is not before us. The District Court may
address them on remand.

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ALITO, Circuit Judge, dissenting:

I dissent from the judgment of the court and from part III
of the court's opinion, which concerns the constitutionality
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 inconsistent 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 question1
and then sent the notices of forfeiture to McGlory at those
locations 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
_________________________________________________________________

1. At no time in this appeal has McGlory disputed the fact that he was
moved from one facility to another during the relevant period. Indeed, in
a submission filed shortly before the en banc argument, McGlory stated:
"[T]he 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 government to house federal
prisoners." Appellant's Oct. 25, 1999, Letter-Brief at 4 (emphasis added).

18
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 correct and the standard practice of the
Marshals Service was followed, notice of the forfeitures was
mailed to McGlory at his place of confinement by first-class
mail -- precisely what the majority says that due process
demands.

Why, then, does the majority think that due process was
violated? The majority provides no express explanation. The
majority opinion appears to hint at two possible
explanations, but neither is supportable. First, the majority
may believe that it is essential that the notice be sent to the
detainee's place of confinement by "the forfeiting agency,"
Maj. Op. at 11, in this case the DEA, rather than the
Marshals Service. Compare Weng v. United States, 137 F.3d
709, 715 (3d Cir. 1998)(treating the forfeiting agency, the
DEA, and another component of the Justice Department,
the Bureau of Prisons, as one entity for the purpose of due
process notice requirements in administrative forfeiture of
property of detainee). 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 decision 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 doubles the
time until . . . receipt [by the detainee]." Maj. Op. at 15. But

19
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 leading
up to the mailing is a matter for the Executive, not the
Judiciary.2

In sum, the en banc majority has rendered a decision
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 apparent. 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 notices 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,3 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
_________________________________________________________________

2. The majority's suggestion that its decision is supported by Robinson v.
Hanrahan, 409 U.S. 38 (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.

3. Rather, the main thrust of McGlory's argument, 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.

20
majority that due process was not provided. But if the
Court finds that the Marshals Service did send the notices,
I would hold that due process was satisfied.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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