United States Court of Appeals
For the First Circuit
No. 00-1564
MANUEL GONZALEZ-GONZALEZ,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Selya and Lynch,
Circuit Judges.
Judith H. Mizner for appellant.
Lena Watkins, Trial Attorney, Narcotic and Dangerous Drug
Section, Criminal Division, United States Department of Justice,
for appellee.
July 23, 2001
SELYA, Circuit Judge. Challenging the constitutional
sufficiency of the process employed by the government in
forfeiting two motor vehicles, petitioner-appellant Manuel
González-González (González) moved in the district court for
recovery of the seized property. See Fed. R. Crim. P. 41(e).
The district court properly treated González's Rule 41(e) motion
as a civil complaint and summarily dismissed it. González
appeals. Sua sponte dismissals are strong medicine, and should
be dispensed sparingly. Given the circumstances of this case,
a sua sponte dismissal cannot be justified. Consequently, we
vacate the lower court's order and remand for further
proceedings.
I. BACKGROUND
The record is sketchy, and we paste together the facts
surrounding the forfeitures as best we can. We take the
controverted facts — at least, those controverted facts that are
neither inherently incredible nor flatly contradicted by the
record — in the light most favorable to González's theory of the
case. See Estelle v. Gamble, 429 U.S. 97, 99 (1976); Dartmouth
Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989).
A decade ago, the Federal Bureau of Investigation (FBI)
mounted a full-court press in an endeavor to dismantle an
extensive drug-smuggling operation headquartered in Puerto Rico.
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See United States v. González-González, 136 F.3d 6, 7-8 (1st
Cir. 1998) (providing an account of the ring's illegal
activities and the government's response). On September 29,
1993, a federal grand jury handed up a sealed indictment that
charged González and fifteen other individuals with a myriad of
offenses, including importation of large quantities of cocaine
and marijuana, as well as conspiracy to possess and distribute
both drugs. See 21 U.S.C. §§ 841, 846, 952. The indictment
also charged González with several counts of money laundering.
See 18 U.S.C. § 1956. The government based four such counts, in
part, on the testimony of a cooperating witness who said that
González had dipped into drug proceeds to fund the purchase of
four motor vehicles (two Mitsubishi Monteros and two Toyota
Corollas). He added that one of González's confederates had
provided false names and addresses for use in registering the
vehicles.
On October 5, 1993, the district court unsealed the
indictment. The FBI promptly arrested eleven of the sixteen
defendants and seized the two cars at issue here — a 1993
Montero and a 1993 Corolla — from individuals residing in
Trujillo Alto. The agents furnished each of these individuals
with a notice that outlined the basis for the seizure and the
procedure for contesting forfeiture. Subsequent appraisals
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indicate that, when seized, the Montero was worth approximately
$25,300 and the Corolla approximately $13,900. See 21 C.F.R. §
1316.74 (providing for post-seizure appraisals of property
slated for forfeiture).
Despite the indictment, González eluded arrest. That
was not surprising; in 1980, he had been indicted for narcotics
offenses, but not apprehended, in the Southern District of
Florida. He remained a fugitive and was convicted in absentia
in the Florida case. González was still at large when the
government proceeded, in the winter of 1993-1994, to effect an
administrative forfeiture of the confiscated automobiles. See
21 U.S.C. § 881.
As a first step, the United States sent notice by
certified mail to the persons named on the vehicles'
registrations, at the addresses specified thereon. See 19
U.S.C. § 1607(a) (directing, in relevant part, that "[w]ritten
notice of seizure together with information on the applicable
procedures [for contesting forfeiture] shall be sent to each
party who appears to have an interest in the seized article").
Each notice explained the reasons for both the seizure and the
planned forfeiture, detailed the appropriate procedure for
contesting forfeiture, and designated March 14, 1994 as the
deadline for taking preventative action. These letters were
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mailed on January 26, 1994, but there is nothing in the record
to indicate whether they reached their intended destinations.
On February 13, 20, and 27, the government published
a notice of the forfeiture proceedings in consecutive Sunday
editions of the New York Times. See id. (requiring such
publication in a newspaper of general circulation). The notice
allowed thirty days from the date of the first publication
within which to request relief from the planned forfeiture.1 See
21 C.F.R. § 1316.79. On April 20, 1994, both cars were declared
forfeit to the United States. See 19 U.S.C. § 1609(a); 21
C.F.R. § 1316.77(b).
The government acknowledges that it gave no personal
notice to González, but asserts that FBI agents were unable to
locate him until August 10, 1994 (when they finally arrested him
in Miami). González demurs, alleging that the government knew
all along where he was living (or, alternatively, where notice
by mail could efficaciously be given to him). Moreover,
testimony at González's bail hearing indicates that the
government may have known his whereabouts but eschewed an arrest
1
Although the record does not contain a copy of the
published notice, we take the dates of publication and the
description of the text from the declaration of forfeiture. We
assume, on the same basis, that the contents of the published
notice complied with the applicable regulations. See 21 C.F.R.
§ 1316.75(b).
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for some time in order to avoid compromising a related
investigation.
On November 2, 1994, the government obtained a
superseding indictment which, despite other modifications, left
the four money laundering counts intact. On January 17, 1995,
González moved to dismiss the indictment on the ground that
forfeiture of the two cars constituted punishment for the
offenses charged (and, therefore, that the Double Jeopardy
Clause barred prosecution). The district court denied the
motion. After a nineteen-day trial, a jury found González
guilty on all counts and the district court sentenced him to
life imprisonment. We affirmed the conviction and sentence.
González-González, 136 F.3d at 7.
Nearly six years after the initial seizure of the two
vehicles and more than five years after the administrative
forfeiture proceedings had been completed, González filed a pro
se motion for return of the automobiles or, in lieu thereof,
their cash value when seized. See Fed. R. Crim. P. 41(e)
(authorizing "[a] person aggrieved by an unlawful . . . seizure
or by the deprivation of property" to move "for the return of
the property on the ground that such person is entitled to
lawful possession of [it]"). In this motion (filed on July 19,
1999), he argued that the notices of forfeiture were
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constitutionally defective since the government knew his
whereabouts at the time and failed to make any real effort to
notify him by mail or otherwise. On August 18, 1999, the
district court, acting sua sponte, rejected González's entreaty
without comment. González now appeals from the court's summary
denial of both his original motion for return of property and
his subsequent motion for reconsideration.
II. DISCUSSION
In the pages that follow, we limn the nature of
administrative forfeiture proceedings, elaborate the notice
required to satisfy due process, and verify the posture in which
this appeal arises. We then resolve the instant dispute.
A. Administrative Forfeiture Proceedings.
Congress has provided for the civil forfeiture of money
or property traceable to the avails of drug trafficking. See 21
U.S.C. § 881(a)(6). To facilitate such forfeitures, Congress
incorporated by explicit reference the venerable procedures for
civil forfeiture set out in the customs laws. Id. § 881(d).
Under this regimen, the government may forfeit property worth
$500,000 or less administratively. See 19 U.S.C. § 1607. If
the government chooses to travel this path, it must publish
notice of its intent to forfeit the property for three
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successive weeks and supplement that publication by sending
written notice to any party known to have an interest in the
property. Id. § 1607(a); 21 C.F.R. § 1316.75.
The giving of notice shifts the burden of going forward
to those persons who persist in claiming an interest in the
property. Claimants have twenty days from the first published
notice within which to file claims. 19 U.S.C. § 1608. A timely
claim, accompanied by a cost bond, aborts the administrative
process and forces the government to proceed in court. See id.;
see also 21 C.F.R. § 1316.76(b). If no interested party files
such a claim, however, the government can proceed to declare the
property forfeit without judicial intervention. See 19 U.S.C.
§ 1609.
Despite Congress's erection of this framework for
administrative forfeitures, the judiciary continues to play a
limited role in such matters. Pertinently, district courts
retain the authority to entertain constitutional challenges to
administrative forfeitures. See United States v. Giraldo, 45
F.3d 509, 511 (1st Cir. 1995) (per curiam); see also United
States v. Mosquera, 845 F.2d 1122, 1126 (1st Cir. 1988) (per
curiam) (noting that district courts have federal question
jurisdiction over due process challenges to administrative
forfeitures). The fact that a claimant cloaks his
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constitutional challenge in the garb of a Rule 41(e) motion does
not alter this reality; in that event, the court simply will
treat such a motion as a civil complaint. Giraldo, 45 F.3d at
511.
B. Reasonable Notice.
The Fifth Amendment to the Constitution states that
"[n]o person shall . . . be deprived of life, liberty, or
property, without due process of law." U.S. Const. amend. V.
These words require "notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
[a legal] action and afford them an opportunity to present their
objections." Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950). Accordingly, "[t]he essence of due
process is the requirement that a person in jeopardy of serious
loss [be given] notice of the case against him and opportunity
to meet it." Matthews v. Eldridge 424 U.S. 319, 348 (1976)
(citation and internal quotation marks omitted).
Consistent with these precepts, due process, in the
forfeiture context, minimally requires that the government
provide an individual with "notice and an opportunity to be
heard" before confiscating his property. United States v. James
Daniel Good Real Prop., 510 U.S. 43, 46 (1993). Because due
process is an infinitely flexible concept, there is no
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infallible test for determining the adequacy of notice in any
particular situation. The touchstone is reasonableness: the
government must afford notice sensibly calculated to inform the
interested party of the contemplated forfeiture and to offer him
a fair chance to present his claim of entitlement. See Mullane,
339 U.S. at 314. Whether the notice actually given is or is not
reasonable invariably depends on the circumstances of the
individual case. See Garcia v. Meza, 235 F.3d 287, 291 (7th
Cir. 2000); cf. Morrissey v. Brewer, 408 U.S. 471, 481 (1972)
(explaining that due process "calls for such procedural
protections as the particular situation demands").
That said, the precedents shed some light on the
government's obligation to notify parties in interest. For
instance, the case law has begun to define what the government
must do when it seeks to forfeit property belonging to a prison
inmate. See Whiting v. United States, 231 F.3d 70, 76 (1st Cir.
2000) (holding sufficient notice by certified mail to both home
address and place of immurement); Giraldo, 45 F.3d at 511
(noting that would-be confiscator must take affirmative steps to
locate owner who is in government custody). Even fugitives may
be entitled to efforts at personal notice. See United States v.
Rodgers, 108 F.3d 1247, 1253-54 (10th Cir. 1997) (declaring
attempted notice to fugitive unreasonable when sent to invalid
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address and not sent to known residence). The precedents also
suggest the value of a pragmatic approach to issues of notice.
If, say, an interested party has actual knowledge of ongoing
forfeiture proceedings from other sources, inadequacies in the
notice afforded by the government will not work a deprivation of
due process. Whiting, 231 F.3d at 74.
C. The District Court's Order.
Because the criminal case no longer was pending when
González sought relief from forfeiture, the lower court
appropriately treated González's Rule 41(e) motion as a civil
complaint. See Giraldo, 45 F.3d at 511. Thus, the government
had sixty days to reply to it. See Fed. R. Civ. P. 12(a)(3)(A).
The court, however, did not wait for the government to respond;
it issued what amounted to an order of dismissal before the
government acted (and well before the sixty-day deadline
arrived).2 Consequently, we have no choice but to treat the
court's summary order as a sua sponte dismissal.
2González argues that the response time had expired because
the district court's local rules allow only ten days to reply to
a motion. See D.P.R. R. 311(5). That rule, however, specifies
the general response time for motions, not for civil complaints.
González happily took advantage of the district court's
willingness to exercise jurisdiction by treating his Rule 41(e)
motion as a civil complaint, and he cannot now argue that the
time limit for answering a complaint was inapposite. After all,
"[h]aving one's cake and eating it, too, is not in fashion in
this circuit." United States v. Tierney, 760 F.2d 382, 388 (1st
Cir. 1985).
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The type of sua sponte dismissal here at issue — a
dismissal on the court's own initiative, without affording the
plaintiff either notice or an opportunity to be heard — is
disfavored in federal practice. If a defendant files a motion
to dismiss for failure to state a claim, see Fed. R. Civ. P.
12(b)(6), the plaintiff, as a practical matter, has notice of
the motion and an opportunity to amend the complaint as of
right, see Fed. R. Civ. P. 15(a). But where, as here, a court
jettisons an action sua sponte, the dismissal deprives the
plaintiff of these core protections. Thus, the standard for
upholding such a sua sponte dismissal is more rigorous than the
"failure to state a claim" standard of Rule 12(b)(6). Cf.
Neitzke v. Williams, 490 U.S. 319, 327 (1989) (explaining that
sua sponte dismissal under 28 U.S.C. § 1915 is warranted only if
a complaint is "based on an indisputably meritless legal theory"
or is "clearly baseless").
This does not mean, of course, that every sua sponte
dismissal entered without prior notice to the plaintiff
automatically must be reversed. If it is crystal clear that the
plaintiff cannot prevail and that amending the complaint would
be futile, then a sua sponte dismissal may stand. Curley v.
Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001); Wyatt v. City of
Boston, 35 F.3d 13, 15 n.1 (1st Cir. 1994); Smith v. Boyd, 945
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F.2d 1041, 1043 (8th Cir. 1991); Shockley v. Jones, 823 F.2d
1068, 1072-73 (7th Cir. 1987). But haste makes waste, and it
will be the rare case in which a sua sponte dismissal — at
least, a sua sponte dismissal without leave to amend — will be
upheld. See Razzoli v. Fed. Bureau of Prisons, 230 F.2d 371,
377 (D.C. Cir. 2000); Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir.
1988); Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir.
1973); see also Clorox Co. v. Proctor & Gamble Comm'l Co., 228
F.3d 24, 32 (1st Cir. 2000) (emphasizing that considerations of
"basic fairness," as well as "sound prudential reasons," counsel
against most uses of the power to dismiss cases sua sponte).
In short, sua sponte dismissals are risky business.
We will uphold a sua sponte order of dismissal only if the
allegations contained in the complaint, taken in the light most
favorable to the plaintiff, are patently meritless and beyond
all hope of redemption. We must measure the district court's
dismissal of González's Rule 41(e) motion by this yardstick.
D. The Bottom Line.
We afford de novo review to orders for sua sponte
dismissal. Cf. Beddall v. State St. Bank & Trust Co., 137 F.3d
12, 16 (1st Cir. 1998) (applying de novo review to an order of
dismissal under Rule 12(b)(6)). The United States argues that
the lower court's order survives such review. Its central theme
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is that we should pay no heed to González's allegations because
the record itself refutes them. This argument lacks force.
González's allegations are reasonably specific and the nisi
prius roll, in its present sparsely developed form, provides
little more than food for speculation.
We need not rehearse every pertinent detail, for one
example will suffice. A crucial area of dispute involves the
extent of the government's knowledge, in late 1993 and early
1994, anent González's whereabouts. González has made specific
assertions that the FBI knew his whereabouts all along; that, at
any rate, the agents had available to them addresses at which
notice might effectively have been given to him; and that the
government disregarded this knowledge, preferring instead to
give notice to the vehicle custodians (whom it had every reason
to believe were mere straws) and to send letters to addresses
that its own informant had disclosed were contrived.
The government, in its brief and at oral argument,
offers a much different version of the facts. It claims that it
could not locate González even to arrest him, let alone to
notify him of the commencement of forfeiture proceedings, and
that it did not know how to ensure that he receive personal
notice. In a nutshell, the government says that it did the best
that it could.
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These dueling versions of the facts set the parties on
a collision course. That, in turn, ends this aspect of our
inquiry. While it is curious to think that the government
effectively could serve notice on a fugitive, the law required
the district court, before essaying a sua sponte dismissal, to
assume the truth of González's fact-specific averments. If the
government knew how to notify González directly and did not
utilize that information, notification given in hand to the
cars' custodians (known by the government to be placeholders)
and mailed to the cars' registered owners (known by the
government to be fictitious persons) might well fall short of
the constitutional minimum, even when coupled with the
publication of a notice in a newspaper that, in fairness,
González was unlikely to read. See United States v. Woodall, 12
F.3d 791, 794 (8th Cir. 1993) ("When the government has actual
knowledge of an interested party's whereabouts at the time
forfeiture is commenced, failure to direct the statutorily
required personal notice to that address cannot be considered
compliance with either the statute or minimum due process
standards."). Further proceedings are needed to permit a
reasoned resolution of this factual conflict.
The government has a fallback position. It argues
that, regardless of what the FBI knew, the record conclusively
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demonstrates that González had actual notice of the seizure.
Building on this foundation, the government, citing United
States v. One 1987 Jeep Wrangler Auto., 972 F.2d 472, 482 (2d
Cir. 1992), posits that the district court's disposition was
justified because actual knowledge of a seizure precludes a
notice-based constitutional challenge to an ensuing forfeiture.
We reject this proposition. Assuming, arguendo, that
the government can show actual notice of the vehicles' seizure
on González's part at the relevant time, the Second Circuit
apparently has retreated from its earlier precedent and
intimated that actual knowledge of forfeiture is required to
excuse a due process shortfall. See Ikelionwu v. United States,
150 F.3d 233, 238 (2d Cir. 1998). Wholly apart from the Second
Circuit's view, we ourselves believe that the actual knowledge
required to defeat a notice-based due process challenge is
advance notice-in-fact of forfeiture proceedings, as opposed to
notice-in-fact of seizure. See Whiting, 231 F.3d at 74 (so
stating, albeit in dictum). Here, González asserts that he was
not aware of the forfeiture until the end of 1994 (well after
the forfeiture proceedings were complete). Because the
government identifies nothing in the record which categorically
contradicts that assertion, a sua sponte dismissal cannot be
justified on the basis of actual knowledge.
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The government makes a last-ditch effort to preserve
its district court victory. Pointing to the five-and-one-
quarter year gap between the forfeiture of the cars and the
commencement of this action, the government asseverates that
González's complaint is barred by laches. This asseveration
need not detain us. Laches is an affirmative defense. K-
Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1st Cir.
1989) (citing Fed. R. Civ. P. 8(c)). Accordingly, the burden
of proving it rests with its proponent. See id. There is no
principled way that the district court, without better
information than it had before it in August of 1999, could grant
judgment for the government on such a factbound theory.
III. CONCLUSION
We need go no further. González invites us to declare
the forfeiture void, whereas the government invites us to
confirm its validity. We decline both invitations. The facts
asserted in the Rule 41(e) motion, taken in the light most
favorable to González, invite skepticism, but we cannot say that
they reveal a patently meritless claim. That means that the
district court's sua sponte order for dismissal cannot endure.
It does not mean, however, that González is entitled to
judgment. Since the district court foreclosed the government
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from telling its side of the story, we must remand the case for
further proceedings.
On remand, the court should fix a time for the
government to respond to the complaint and, in due course,
should determine whether, in the particular circumstances of
this case, the government's efforts to notify González of the
forfeiture proceedings were reasonable. If the court finds that
the government's actions did not attain the constitutional
minimum, the court should then consider the government's
affirmative defenses (including but not limited to actual
knowledge and laches). We take no view on any of these
questions.
Vacated and remanded. No costs.
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