Weng v. U.S., 1780

• Decision Date: 24 February 1998
• Docket Number: No. 1780,D,1780
• Citation: 137 F.3d 709
• Parties: Yeung Mung WENG, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 96-2918
• Court: U.S. Court of Appeals — Second Circuit

Page 709

137 F.3d 709

Yeung Mung WENG, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 1780, Docket 96-2918.

United States Court of Appeals, Second Circuit

Submitted July 16, 1997.

Decided Feb. 24, 1998.

Yeung Mung Weng, Pro Se, Ray Brook, NY, for Plaintiff-Appellant.

Zachary W. Carter, United States Attorney for the Eastern District of New York, Brooklyn, NY (David C. James, Leonard Lato, Assistant United States Attorneys, of counsel), for Defendant-Appellee.

Before WINTER, Chief Judge, JACOBS and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

Yeung Mung Weng, acting pro se and in forma pauperis, appeals from an order of the United States District Court for the Eastern District of New York (Dearie, J.), dismissing his civil complaint for the return of personal property purportedly forfeited to the government in connection with his conviction on narcotics charges. Although Weng claimed to have received no notice of the government's intent to forfeit his property, the district court found that a mailing by the Federal Bureau of Investigation ("FBI") to a prison where Weng was believed to be incarcerated satisfied the government's obligation to give notice. We conclude that at least when a property owner is in federal custody on the very charges that gave rise to the seizure of his property, absent special justifying circumstances, notice of forfeiture sent to him at the federal institution will not be deemed sufficient unless actually received by him. We therefore vacate the judgment and remand.

Background

On November 8, 1990, Weng was arrested by agents of the FBI at his residence in Queens, New York, on narcotics charges. He was taken into federal custody. Charges were instituted against him in the United States District Court for the Eastern District of New York, and on January 22, 1991, he was convicted on his guilty plea. See Weng v. United States, No. 95-CV-4295, 1996 WL * 711 480851 (E.D.N.Y. Aug.15, 1996) (habeas action). Weng remained in federal custody serving his sentence on these charges throughout the time of the events pertinent to this appeal.

At the time of Weng's arrest, FBI agents seized jewelry valued at $19,150 and $65,900 in currency from his residence. Under the authority of 21 U.S.C. § 881, the FBI subsequently initiated forfeiture proceedings against the currency and the jewelry, utilizing the administrative procedure provided by 19 U.S.C. § 1607. An FBI official prepared and sent two written Notices of Intent to Forfeit the property, one for the currency and one for the jewelry. The Notice of Intent to Forfeit the currency ("the currency notice") was mailed on January 25, 1991. The Notice of Intent to Forfeit the jewelry ("the jewelry notice") was mailed on March 4, 1991. These notices were sent by certified mail both to appellant's last known address and to the Metropolitan Correctional Center ("MCC"), a federal detention facility in New York City. As to why the notices were sent to the MCC, the government's papers in support of its motion to dismiss asserted conclusorily that Weng was incarcerated there. No substantiation was given for that assertion, and papers submitted by Weng to this court during the appeal suggest that that assertion may have been inaccurate, at least in the case of the jewelry notice. The copies mailed to Weng's last known address were returned undelivered. The copy of the currency notice mailed to the MCC, according to the certified mail receipt, was received by the MCC on January 29, 1991. As to the jewelry notice, the MCC received its copy on March 8, 1991. In addition, the government published the notices once per week for three successive weeks in newspapers of general circulation. No claims were made for either the currency or the jewelry. On March 22, 1991 and May 31, 1991 respectively, the FBI declared the currency and the jewelry administratively forfeited pursuant to 19 U.S.C. § 1609.

In 1995, Weng instituted this action by filing a complaint, in the form of a letter written in Chinese and translated into English, in the United States District Court for the Eastern District of New York, seeking the return of his property. ¹ The complaint asserted that the property, for which he had received no accounting from the FBI, was purely personal and unrelated to drug dealings. By order dated January 25, 1995, the district court (Dearie, J.) ordered the government "to show cause by the filing of a detailed written response why the relief should not be granted" and referred the case to Magistrate Judge John L. Caden. Eighteen months later, in June 1996, the government filed a one-page letter by way of response, stating that Weng had conceded, in papers filed in another proceeding, that the government had successfully forfeited the property. After being informed by the magistrate judge that this letter was not a sufficient response, the government moved to dismiss Weng's complaint. The government argued that the district court lacked subject matter jurisdiction to review the forfeiture because Weng had received the constitutionally required notice of the government's intent to forfeit, and the forfeiture had been perfected. It argued that "due process does not require that the claimant receive actual notice of a forfeiture proceeding, but rather, that the Government act reasonably in selecting and employing a means likely to inform the claimant of the proceeding."

In a Report and Recommendation dated October 2, 1996, Magistrate Judge Caden adopted the government's view that the court was without jurisdiction to review the forfeiture. Noting that Weng "does not appear to dispute the fact that he was present at the MCC when the notice was received," the magistrate judge concluded that the government had acted reasonably in attempting to notify Weng of the forfeiture of his property by mailing notice to the MCC. ²

By Order dated October 17, 1996, Judge Dearie adopted the magistrate judge's report in its entirety, noting that Weng had failed to file objections within the prescribed 10 day period. However, on October 15--in the interim between the magistrate judge's report and the district court's ruling--the court received Weng's answer to the government's motion to dismiss and objections to the magistrate judge's ruling. (Weng contends both were mailed within 10 days of the magistrate judge's report.) Weng's answering affidavit stated that he had never received notice of the intended forfeitures. He further stated that he was transferred several times during 1991 between the MCC and the Federal Correctional Institution at Otisville, New York ("FCI Otisville") and that, accordingly, "it [is] very questionable whether [he] was in [the] MCC at the[ ] particular dates in which the MCC received the notices." In response to the magistrate judge's report, ³ Weng objected, inter alia, to the magistrate judge's finding that Weng did not dispute that he was present at the MCC when the notices were received. Because of the transfers between the MCC and FCI Otisville, Weng reiterated, it was "very questionable" whether he was in fact at MCC on the relevant dates. Information apparently from the Bureau of Prisons submitted by Weng on his appeal shows that although he was at the MCC when the currency notice was delivered there on January 29, 1991, he was not at the MCC but at FCI Otisville on March 8, 1991 when the jewelry notice was delivered to the MCC.

The district court, by Memorandum and Order dated November 11, 1996, reaffirmed its October 17 order. Acknowledging Weng's assertion that he had been transferred between the MCC and FCI Otisville, the court nevertheless found that Weng had "fail[ed] to raise any possibility that the government had information indicating that in 1991, plaintiff was anywhere other than the MCC." In any event, the court concluded, "due process is satisfied even if the claimant does not receive notice due to a prison transfer." ⁴

Discussion

Pursuant to 21 U.S.C. § 881, the United States is authorized to forfeit the proceeds of drug transactions by civil proceedings. See generally, Boero v. Drug Enforcement Admin., 111 F.3d 301, 304 (2d Cir.1997); Torres v. $36,256.80 U.S. Currency, 25 F.3d 1154, 1155 (2d Cir.1994). For property valued at $500,000 or less, the government may employ an administrative process, rather than the more exacting route of judicial forfeiture. See 19 U.S.C. § 1607; 21 U.S.C. § 881(d); 21 C.F.R. §§ 1316.75-77; Boero, 111 F.3d at 304. Such property "may be forfeited by the seizing agency if proper notice of the seizure and intent to forfeit is given and no person files a claim to the property, accompanied by a cost bond, within the allotted time period." United States v. Idowu, 74 F.3d 387, 394 (2d Cir.) (citing 19 U.S.C. § 1609), cert. denied, 517 U.S. 1239, 116 S.Ct. 1888, 135 L.Ed.2d 182 (1996). "Where no person files a claim or bond within the statutory period, the agency is authorized to declare the property forfeited." Id. (citing 19 U.S.C. § 1609).

"The overwhelming weight of authority supports the position that a federal court lacks jurisdiction to review the merits of administrative forfeiture decisions...." United States v. One 1987 Jeep Wrangler, 972 F.2d 472, 480 (2d Cir.1992). "[N]evertheless, an exception to this general rule lies if the property is taken accidentally, fraudulently, or improperly. Put another way, if an administrative forfeiture is procedurally deficient, the court has jurisdiction to correct the deficiency." Onwubiko, 969 F.2d at 1398 (citation omitted). Accordingly, federal courts have jurisdiction to determine whether the government provided legally adequate notice of forfeiture. See Boero, 111 F.3d at 305; Torres, 25 F.3d at 1160-61.

"[N]otice [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.... [W]hen notice is a...