United States v. Gonzalez Gonzalez

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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