U.S. v. All Monies from Account No. PO-204,675.0
| Decision Date | 29 November 1993 |
| Citation | 162 F.3d 1174 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.
Michael R. Murphy C.J.
In this civil forfeiture proceeding, Somateria Foundation ("Somateria"), Financiera Euro-Americana Corp. ("Financiera"), Jorge Hugo Reyes Torres ("Reyes Torres"), and Dayra Maria Levoyer Jimenez ("Levoyer Jimenez") (collectively "Claimants") appeal the district court's denial of their Motion to Set Aside Entry of Default and Default Judgment ("Motion to Set Aside") and motion to reconsider. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.
The United States filed the underlying civil forfeiture action on August 4, 1993. In its Verified Complaint for Forfeiture In Rem ("Verified Complaint"), the United States alleged that the funds in two defendant bank accounts were the proceeds of drug trafficking and money laundering activities conducted by the Reyes Torres family of Ecuador.
A Notice of Arrest and Procedure ("Notice of Arrest") was filed on August 17, 1993. That same day, copies of the Notice of Arrest, the Verified Complaint, an Order for Arrest of Property In Rem, and a Warrant for Arrest of Property In Rem were sent, by registered mail, to Claimant Somateria, at both a Liechtenstein address and in care of the Swiss Bank Corporation in Zurich; to Claimant Financiera, at both a British Virgin Islands address and in care of the Bank von Ernst and Cie in Zurich; and to Claimant Reyes Torres at an Ecuador prison. Additionally, the government published notice of the seizure and pending forfeiture of the two defendant accounts in The Denver Post on August 11, 18, and 25, 1993 and September 1, 1993. According to the published notice, the deadline for filing a claim was 10 days after "first publication" of the notice.
Claimants did not file a claim or answer and on September 14, 1993, the government filed a Motion for Default Judgment and Final Order of Forfeiture. The district court granted the motion and on October 25, 1993, the court entered a Default Judgment and Final Order of Forfeiture. An Amended Judgment was entered on October 28, 1993. The total amount forfeited was $11,499,068.34.
On October 21, 1994, Claimants filed a Motion to Set Aside Entry of Default and Default Judgment ("Motion to Set Aside"). On December 1, 1994, the government filed a response to Claimants' motion. On December 12, 1994, Claimants filed a motion requesting leave to file a reply brief to the government's response to the Motion to Set Aside or, in the alternative, requesting a hearing. On December 15, 1994, the district court entered an order denying Claimants' Motion to Set Aside without ruling on Claimants' motion requesting leave to file a reply brief. Claimants subsequently filed a Motion for Reconsideration of Denial of Claimants' Motion to Set Aside Entry of Default and Default Judgment ("Motion for Reconsideration"), which the court denied by minute order.
Claimants appealed the district court's denial of their Motion to Set Aside. In an unpublished disposition, this court reversed the district court's denial of Claimants' Motion to Set Aside, holding that the district court should have ruled on Claimants' motion to file a reply brief before it ruled on the merits of the Motion to Set Aside. See United States v. All Monies from Account No. PO-204,675.0, No. 95-1095, 1996 WL 375393, at * 2-3 (10th Cir. July 5, 1996). This court therefore remanded the case "with direction that the district court, after hearing, consider, and rule on, claimants' motion to file a reply brief before ruling on the motion to set aside." Id. at * 3.
On remand, the district court granted Claimants' motion requesting leave to file a reply brief. A hearing was conducted on May 9, 1997. At the conclusion of the hearing, the district court granted Claimants' Motion to Reconsider, but again denied Claimants' Motion to Set Aside as untimely. This appeal followed.
On appeal, Claimants allege that (1) the default judgment is void as to Claimant Levoyer Jimenez because she was not mailed notice; (2) the judgment is void because the notice mailed to the other Claimants was deficient in that it failed to provide enough information to enable Claimants to determine the deadline for filing a claim; and (3) the district court abused its discretion by denying Claimants' Motion to Set Aside as untimely.
Claimant Levoyer Jimenez contends the default judgment is void as to her because the government's failure to mail her notice of the forfeiture proceedings violated her due process rights. 1 It is undisputed that Levoyer Jimenez was not mailed notice of the forfeiture proceeding at the Ecuador prison where she was incarcerated at all relevant times. The government argues, however, that reasonable notice was provided to Levoyer Jimenez through Somateria.
Due process requires "notice 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 v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); see also United States v. Rodgers, 108 F.3d 1247, 1250 (10th Cir.1997). When the name and address of an interested party are reasonably ascertainable, due process requires the government to send "[n]otice by mail or other means as certain to ensure actual notice." Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); see also Rodgers, 108 F.3d at 1251. "Due process does not require, however, that the interested party actually receive notice." United States v. 51 Pieces of Real Property, 17 F.3d 1306, 1316 (10th Cir.1994). "So long as the government 'acted reasonably in selecting means likely to inform [the] persons affected, ... then it has discharged its burden.' " Id. (alterations in original) (quoting Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir.1988)).
This court reviews due process issues which call for legal conclusion de novo. See United States v. Clark, 84 F.3d 378, 381 (10th Cir.1996). Whether the government used means that were reasonably calculated to provide actual notice, however, is a factual determination this court reviews for clear error. See id.
Claimant Levoyer Jimenez does not contend that the money from either account was in her name, but instead argues that she was entitled to notice of the forfeiture proceeding because she was both an authorized signer and beneficiary of one of the two forfeited accounts, the Somateria account. 2 Levoyer Jimenez asserts that because the government had knowledge of her whereabouts, it was required to mail notice directly to her.
Under the particular facts of this case, we reject Claimant Levoyer Jimenez's contention that the government was required to mail notice directly to her. To the extent that Levoyer Jimenez was an interested party, the government discharged its burden of providing her notice. The government mailed notice to Claimant Somateria, who was the owner of the Somateria account at the time of the seizure. Notice to Somateria was mailed both to the Liechtenstein law firm, which managed Somateria's affairs, and to the Swiss bank, which held the funds. Levoyer Jimenez testified that she executed an agreement with the Liechtenstein law firm giving individuals at the firm the power to act on her behalf in all matters related to the Somateria Foundation. Under these circumstances, notice to Somateria at the Liechtenstein law firm, which had power of attorney to act on Levoyer Jimenez's behalf, was reasonably calculated to provide Levoyer Jimenez actual notice of the proceeding. 3
Based on the above, we conclude the means utilized by the government to provide notice to Claimant Levoyer Jimenez were "as certain to ensure actual notice" as mailing notice to her at the Ecuador prison, 4 especially in light of her and Reyes Torres' testimony that mail sent to them in prison was not always delivered. This court therefore rejects Levoyer Jimenez's contention that the judgment is void because she did not receive adequate notice of the forfeiture proceeding.
Claimants Somateria, Financiera, and Reyes Torres argue that the Notice of Arrest mailed to them was inadequate because it did not specify a deadline for filing a claim and thus violated their due process rights. Alternatively, they argue that because the notice published in The Denver Post stated that all claims must be filed within ten days after the "first publication" of the notice and the date of first publication was August 11, 1993, the deadline for filing a claim was August 21, 1993. They therefore contend that the Notice of Arrest mailed to them on August 17, 1993 was untimely because it did not provide them with adequate time to file a claim before the August 21, 1993 deadline.
The Notice of Arrest mailed to Claimants on August...
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