United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 29, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-60275
_____________________
TERRELL MARTA TAYLOR,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this appeal, Terrell Taylor challenges the district court’s
determination that the Government satisfied the Due Process Clause
in notifying him of the administrative forfeiture of $13,000,
seized from Taylor upon his arrest for serious drug crimes.
Because on this record the Government has failed to meet its burden
to show that its notice was “reasonably calculated, under all the
circumstances, to apprise” Taylor of the forfeiture, Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), we
reverse and remand for an evidentiary hearing.
I
Taylor was stopped for a traffic violation on March 22, 2001
in Biloxi, Mississippi. The patrol officer who stopped Taylor was
a Drug Enforcement Administration (“DEA”) task force agent. The
arresting officer and other agents searched Taylor’s car and
discovered a large amount of cocaine base and $13,000 in cash. The
agents seized these items and also took possession of a Rolex ring
and a cell phone Taylor was carrying.
Following his arrest, Taylor was given a ride home by the
agents and he consented to a search of his apartment at 2823
Bienville Boulevard, #47, in Ocean Springs, Mississippi. The
agents discovered and seized two guns, a microwave oven and various
other items believed to be related to narcotics distribution.
On April 24, DEA began administrative forfeiture proceedings
for the $13,000 seized.1 Using certified mail, DEA sent a
forfeiture notice to 1228 King Henry Drive, also in Ocean Springs.
DEA received a return receipt indicating the notice had been
delivered on May 2.
DEA also sent a forfeiture notice to David Daniels, an
attorney in Biloxi, and received confirmation that the notice had
been delivered on April 30. Lourrie Stafford (presumably of
1
The district court granted Taylor’s motion to return all
items in the Government’s possession other than the $13,000 and the
Government does not appeal that decision; the only property in
question in this appeal, then, is the $13,000.
2
Daniels’ office; the record is unenlightening) signed for the
letter.
Following departmental regulations and the command of 19
U.S.C. § 1607, DEA also published a notice in the Wall Street
Journal on May 7, 14, and 21. The DEA having heard nothing from
Taylor, a declaration of forfeiture of the $13,000 was entered on
July 10.
On August 22, Taylor was charged in a sealed, two-count
indictment. The first charge was related to the cocaine base and
the second was a forfeiture count for the $13,000. Upon being
informed in October that the money had already been
administratively forfeited, the district court dismissed the second
count.
Some five months later, on March 19, 2002, Taylor was charged
in a superceding indictment on conspiracy, drug and firearm
charges. He pled guilty in May to possession with intent to
distribute more than 50 grams of cocaine base. Taylor was
sentenced in November to a prison term of 360 months.
In April 2003, Taylor first filed a motion seeking the return
of his seized property. After a flurry of responses and replies,
the case appears to have sat dormant until August 2004, when the
district court ordered Taylor’s motion converted into a civil
action, since the criminal case against him had been closed and
there remained “issues of fact which require further development in
this case.” Another period of inactivity followed -- it appears
3
that Taylor was unaware he needed to serve process on the
Government again -- before the Government replied to the civil case
in September 2005. No new evidence was submitted. The district
court ruled in January 2006, entering a one-page order holding that
Taylor’s personal possessions should be returned but that the part
of his motion related to the $13,000 was denied. No reasons were
assigned. After his motion for reconsideration was denied, Taylor
filed this timely appeal.
II
A
The issue in this appeal is whether the district court erred
in ruling that Taylor was given constitutionally adequate notice of
the administrative forfeiture of the $13,000. Although Taylor
filed his motion as part of his closed criminal case, “the district
court properly construed it as a civil complaint and the denial of
the motion as a grant of summary judgment.” United States v.
Robinson, 434 F.3d 357, 361 (5th Cir. 2005). We review the grant
of a motion for summary judgment de novo. Id.
The Government may use the administrative forfeiture procedure
when seized property has a value under $500,000 or is in the form
of U.S. currency. 19 U.S.C. § 1607(a) (2006). The statute
requires the Government to publish the notice for three successive
weeks and also commands that “[w]ritten notice of the seizure
together with information on the applicable procedures shall be
4
sent to each party who appears to have an interest in the seized
article.” Id.
After notice is given, a party has 20 days in which to file a
claim. Robinson, 434 F.3d at 362. If a claim is filed,
administrative forfeiture is cancelled and the matter is referred
to the relevant U.S. Attorney to begin judicial forfeiture. Id.
“If no claim is filed, the property is summarily forfeited to the
Government.” Id.
“Once an administrative forfeiture is complete, a district
court may review only ‘whether the forfeiture comported with
constitutional due process guarantees.’” Id. (quoting Kadonsky v.
United States, 216 F.3d 499, 506 (5th Cir. 2000)). To withstand
scrutiny under the Due Process Clause, the Government’s notice must
be “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, 339 U.S. at
314.
B
Taylor advances two arguments. The first is that the DEA
notice fails to pass constitutional muster and the forfeiture
should be voided as a matter of law. Alternatively, he contends
that there are issues of material fact that are unresolved and that
the district court should have held an evidentiary hearing to
determine if notice was constitutionally adequate. As his
arguments in support are identical, we address them together.
5
With regard to the notice mailed to 1228 King Henry Drive,
Taylor states that he did not live at that address and, since DEA
gave him a ride to his actual residence on Bienville Boulevard and
searched it, they were well aware of his correct address. The
residence at 1228 King Henry Drive, Taylor claims, is the home of
his mother and sister. Concerning the return receipt DEA received
from the post office, Taylor points to the fact that the signature
of the recipient is illegible and no printed name appears. In
addition, Taylor’s mother and sister filed sworn affidavits with
the district court in June 2003 stating that (1) they were the only
residents at that address (other than the sister’s minor son), (2)
neither had signed the certified mail receipt and (3) neither was
home on May 2. The Government has no explanation for this mailing
other than the unsupported assertion that Taylor maintained two
residences.
As for the forfeiture notice sent to Daniels, the Biloxi
attorney, Taylor argues that he did not engage Daniels until
October 16, 2001, nearly six months after the notice was mailed.
Taylor does not offer a sworn affidavit of Daniels or anyone in his
office to this effect. He does point out that he was not
incarcerated and DEA knew that he was not. This is relevant, he
says, because forfeiture notice to an attorney might make more
sense if the party is in jail. The Government only says that DEA
must have had some information that Taylor was represented by
6
Daniels in April of 2001 because Daniels represented Taylor once an
indictment was filed.
As the Government correctly points out, actual notice to
Taylor is not required. Dusenbery v. United States, 534 U.S. 161,
170 (2002). Although the Government is not required to undertake
“heroic efforts,” it must fulfill Mullane’s command that the effort
be “reasonably calculated” to provide notice. Id. Dusenbery
concerned a prisoner to whom notice was sent (1) care of the prison
in which he was incarcerated, (2) to the residence at which he was
arrested, and (3) to an address in the town where his mother lived.
Id. at 164. Although prisoner mail records were not maintained and
it was unclear whether Dusenbery received actual notice, the
Supreme Court held that the prison’s procedures for receiving and
processing inmate mail were adequate to meet the requirements of
the Due Process Clause. Id. at 172-73. The court noted that there
was no indication that the mail to the prison had been returned
undelivered. See id.
We have also spoken on the adequacy of administrative
forfeiture. In Barrera-Montenegro v. United States, the Government
seized $240,678 in currency from Barrera’s car on July 22, 1992.
74 F.3d 657, 658 (5th Cir. 1996). Barrera was never charged with
a crime and his attorney twice (on August 6 and 24) contacted DEA
to inquire about the money and status of the case. Id. He was
told both times that no file had been created and he would be
7
informed if something happened. Id. The attorney provided DEA
with his and Barrera’s current addresses. Yet on August 10, DEA
had in fact commenced administrative forfeiture proceedings and
mailed notice to the address listed on Barrera’s driver’s license,
which was in New York, and the notice was returned unclaimed. Id.
We held that the DEA’s misrepresentation to Barrera’s attorney on
August 24 was dispositive of the case and demonstrated that the
Government had failed to comport with due process. Id. at 661. In
reviewing the legal standard, we reiterated that “when the
government has in its possession information which would enable it
to effect actual notice on an interested party, it is unacceptable
for DEA to ignore that information and rely on notification by
publication.” Id. at 660.
Our most analogous case to the one at bar is Armendariz-Mata
v. U.S. Dept. of Justice, Drug Enforcement Administration, 82 F.3d
679 (5th Cir. 1996). There the Government sent forfeiture notice
(1) by certified mail to the prison where Mata was incarcerated --
which was returned undelivered for unknown reasons -- and (2) to
his house, where it was signed for by his sister. Id. at 681. DEA
made no further effort to contact Mata other than to publish three
notices in USA Today. Id. We concluded that “[g]iven the
government’s knowledge of Mata’s whereabouts, the notice sent to
Mata’s home residence was not adequate.” Id. at 683. The notice
mailed to Mata in prison was also insufficient because DEA knew it
had been returned undelivered. Id.
8
Most recently, we considered a case in which the FBI first
sent a forfeiture notice to the claimant’s home address. Robinson,
434 F.3d at 359. The letter was returned marked “UNCLAIMED,” which
led the Government to search an address database and discover four
additional addresses associated with Robinson, to which letters
were then sent. Id. Each was returned undelivered. Id. at 360.
Several months later, the FBI tried again, resending to one address
and adding two new ones. All letters were again returned
unclaimed. Id. The district court noted that at least three of
the addresses were acknowledged to be valid by Robinson, id. at
361, and he could not explain why the letters to these addresses
went unclaimed, id. at 367. Under these circumstances, we held
that the Government could not be faulted for its efforts at direct
notification through the mail and its efforts satisfied the Due
Process clause. Id. at 367.
III
On the record before us, we conclude for several reasons that
Taylor deserves an evidentiary hearing. First, DEA knew where
Taylor lived; it had given him a ride there and then searched his
apartment. This fact relates to Barrera-Montenegro, where the
Government ignored correct information it had and sent notice to
another address. 74 F.3d at 658. In that case, the Government at
least used an address on the driver’s license. Id. Here, the
Government offers no explanation for sending the notice to an
address different from Taylor’s known address. Second, unlike in
9
Robinson, the Government sent notice to an address for which there
is no evidence that it was ever his residence, i.e., 1228 King
Henry Drive. See 434 F.3d at 361. Third, we have found that
notice provided to a claimant’s sister, at his correct residence,
was insufficient to pass constitutional muster. Armendariz-Mata,
82 F.3d at 683. Here, Taylor offers an uncontested, sworn
statement to show that notice was not received by a family member
at her residence. Finally, as regards the notice sent to Daniels’
office, an evidentiary hearing will develop facts on the date of
his engagement by Taylor and what happened to the notice after it
was received by that office.
In the final analysis, Taylor presents more than enough here
to remand the case for an evidentiary hearing. The Government has
not offered evidence to contradict Taylor’s submissions on the
notice mailed to the address on King Henry Drive or the notice
mailed to Daniels. At the evidentiary hearing, the Government will
have the burden, see Dusenbery, 534 U.S. at 161, to show that its
notice was “reasonably calculated, under all the circumstances, to
apprise” Taylor of the forfeiture, Mullane, 339 U.S. at 314.
IV
For the foregoing reasons, we REVERSE the judgment of the
district court and REMAND for an evidentiary hearing, not
inconsistent with this opinion.
REVERSED and REMANDED.
10
Taylor v. United States
Court: Court of Appeals for the Fifth Circuit
Date filed: 2007-03-29
Citations: 483 F.3d 385
Copy CitationsCombined Opinion