UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10453
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARENCE ROBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
March 8, 1996
Before REYNALDO G. GARZA, WIENER AND STEWART, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Appellant Clarence Robinson ("Robinson") claims that the
district court erred in denying his "Motion for the Return of U.S.
Currency" because the United States failed to prove that it
complied with the statutory notice provisions of 19 U.S.C. § 1607
in a prior administrative forfeiture action. Because we hold that
the evidence filed by the United States failed to prove that the
statutory notice provisions were fulfilled, we REVERSE and REMAND
for further proceedings in accordance with this opinion.
I.
FACTS
Clarence Robinson ("Robinson") was arrested for possession
with intent to distribute cocaine base. At the time he was
arrested, he had $3,586 on his person. This money was seized from
him at the time he was arrested. He later pleaded guilty to
possession with intent to distribute cocaine base.
Before Robinson pleaded guilty, while he was in the Lubbock
County jail, the Drug Enforcement Agency ("DEA") instituted a civil
forfeiture proceeding against the $3,586. On February 14, 1994,
the government sent a Notice of Seizure by certified mail to
Robinson at the Lubbock County Jail. The return receipt for the
notice was signed by Ray Cox, a Lubbock County employee. Robinson
claims that he never received the Notice of Seizure.
Another Notice of Seizure was sent to Robinson's last known
address on February 14, 1994. This notice was returned unclaimed,
which is not surprising because Robinson was incarcerated and
therefore was not home. Robinson never received this notice
either.
At the time that the DEA instituted the civil forfeiture
proceedings, Robinson was represented by an attorney in the
criminal case arising out of his arrest. The DEA neither sent the
Notice of Seizure to Robinson's attorney nor informed the attorney
of the forfeiture proceedings.
The DEA had notice of the seizure and the DEA's intent to
forfeit published in the USA TODAY newspaper on February 23, 1994.
The parties dispute whether the notice was published again.
Robinson claims that it was not, and the government claims that it
was published twice more during the next two weeks.
On April 1, 1994, the DEA entered a final Declaration of
Forfeiture, forfeiting the $3,586. Robinson claims that he never
received notice of the pending forfeiture action before the DEA
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entered this declaration.
On March 27, 1995, Robinson filed a Motion for the Return of
U.S. Currency, praying that the $3,586 be returned to him because
the DEA did not give him proper notice of the forfeiture
proceedings. The government filed its response to his motion on
May 9, 1995. In that response, the government presented the return
receipts of the notices sent to Robinson's home and to the Lubbock
County Jail, as well as a copy of the notice published in the USA
TODAY on February 23, 1994. The government's response stated that
the February 23 published notice was the "first published notice,"
and that "notice of seizure had been published in accordance with
19 U.S.C. § 1607." The district court denied Robinson's motion on
May 9, 1994, the same day on which the government filed its
response to the motion.
II.
STANDARD OF REVIEW
Robinson made his Motion for the Return of U.S. Currency
pursuant to Fed. R. Crim. P. 41(e). Actually, he should have filed
a civil action seeking to recover the money. United States v.
Giraldo, 45 F.3d 509, 511 (1st Cir. 1995). However, his pro se
pleading must be treated liberally as seeking the proper remedy.
United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983). Thus,
this Court will treat his motion as a civil complaint, and the
district court's denial of that motion as a summary judgment.
This Court reviews a grant of summary judgment de novo.
Nowlin v. Resolution Trust Corp., 33 F.3d 498, 501-02 (5th Cir.
1994). Summary judgment is appropriate under Federal Rule of
Civil Procedure 56 if the record discloses "that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Randolph v. Laeisz,
896 F.2d 964, 969 (5th Cir. 1990). In reviewing the summary
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judgment, we apply the same standard of review as did the district
court. Id. We must review the facts drawing all inferences most
favorable to the party opposing the motion. Id. Where the record
taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for trial. Id.
Further, conclusory statements—that is, statements that are merely
conclusions of law or ultimate facts—are insufficient to support
summary judgment. Galindo v. Precision Am. Corp., 754 F.2d 1212,
1221 (5th Cir. 1985).
III.
DID THE GOVERNMENT ESTABLISH THAT THE DEA
COMPLIED WITH THE STATUTORY NOTICE PROVISIONS?
19 U.S.C. § 1607 ("Section 1607") requires the government to
provide notice before forfeiting property valued at less than
$500,000. Specifically, the government must (1) "cause a notice of
the seizure of [the property] and the intention to forfeit . . .
the same . . . to be published for at least three successive weeks
[in a newspaper of general circulation];" and (2) send "[w]ritten
notice of seizure, together with information on the applicable
procedures . . . to each party who appears to have an interest in
the seized [property]."
The government failed to establish the fact that it published
notice of the seizure in a newspaper of general circulation for
three successive weeks. The government only presented evidence of
one publication, which it claimed was the "first publication." The
only evidence that it published the notice during the next two
weeks was the government's conclusionary statement that "notice of
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seizure had been published in accordance with 19 U.S.C. § 1607."
Such a conclusionary statement cannot support a summary judgment.
Because the government failed to prove that it published
notice of seizure in a newspaper for three successive weeks, the
district court erred in denying Robinson's Motion for the Return of
U.S. Currency. Consequently, we REVERSE the district court's
denial of Robinson's motion, and REMAND this case for further
proceedings to determine whether Robinson received proper notice of
forfeiture.1
1
Robinson also claimed that "minimum due process standards"
required that notice either be received by him personally or sent
to his attorney. The district court should consider this claim on
remand. As § 1607 is written in the conjunctive, requiring the
government both to publish notice and to send written notice to the
parties, the district court should examine the government's actions
in not sending notice to known counsel of record for Robinson, and
in sending Robinson's notice to (1) his home address, when the
government knew he was in jail, and (2) the jail, where the
likelihood of his receiving it was anything but certain. See
United States v. Woodall, 12 F.3d 791 (8th Cir. 1993).
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