USA. v. McGlory, 97-3057

• Citation: 202 F.3d 664
• Decision Date: 01 February 2000
• Docket Number: No. 97-3057,97-3057
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. REGINALD MCGLORY, Appellant Originally
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 664

202 F.3d 664 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. REGINALD MCGLORY, Appellant

No. 97-3057

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Originally Argued April 5, 1999

Argued en banc November 8, 1999

Filed February 1, 2000

On Appeal from the United States District Court For the Western District of Pennsylvania (D.C. Crim. No. 89-cr-00144) District Judge: The Honorable D. Brooks Smith

Attorney for Appellant: Michael A. Young (Argued) 165 Christopher Street New York, NY 10014

Attorneys for Appellee: Mary Houghton Assistant United States Attorney Harry Litman (Argued) United States Attorney Bonnie R. Schlueter Assistant United States Attorney 633 United States Post Office and Courthouse Pittsburgh, PA 15219

Originally Argued April 5, 1999 Before: SLOVITER and ALITO, Circuit Judges, ALARCON, Senior Circuit Judge^*

Argued en banc November 8, 1999

Before: BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, MCKEE, RENDELL, and BARRY, Circuit Judges

SLOVITER, Circuit Judge.

The issue before the en banc court in this case is whether the appellant Reginald D. McGlory received constitutionally adequate notice for the administrative forfeiture of certain property seized by officers of the Drug Enforcement Administration ("DEA").

McGlory was arrested, tried, convicted, and sentenced to life imprisonment for various drug and firearm offenses. Incident to his arrest various of his property was seized and most of the seized property, but apparently not all, was subjected to administrative or judicial forfeiture by the DEA. McGlory first challenged the forfeiture by filing a motion for return of property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. Before we can consider the adequacy of the particular administrative forfeiture notices that are the subject of this appeal,¹ we must decide whether the District Court had jurisdiction to consider McGlory's Rule 41(e) motion. Only if it had can we consider the important, albeit narrow, issue whether adequate notice of administrative forfeiture proceedings is provided to a prisoner who is in local detention facilities by mailing the notices to an office of the United States Marshals Service.

I.

On September 8, 1989, DEA agents and local Pittsburgh officers arrested McGlory for conspiracy to possess heroin with intent to distribute. At that time, and pursuant to search warrants, the officers seized property, including cash, from McGlory's apartment at 236 South Negley Avenue in Pittsburgh, Pennsylvania, his mother's home at 4267 Bryn Mawr Road in Pittsburgh, Pennsylvania, and his wife's residence at 285 Suncrest Drive in Verona, Pennsylvania. On September 15, 1989, the Magistrate Judge ordered that McGlory be detained by the United States Marshals Service pending trial. By arrangement between federal and state authorities, federal pretrial detainees are often housed in state detention facilities.

McGlory was indicted by a federal grand jury on October 4, 1989. He was charged with possession of a firearm after having been convicted of a felony, conspiracy to distribute heroin, and possession of heroin with intent to distribute. McGlory pled not guilty, and the court ordered a trial by jury to begin December 11, 1989, which was later continued to February 20, 1990.

On December 13, 1989, the government filed a superseding indictment which added additional criminal charges against McGlory. McGlory was arraigned on the superseding indictment on December 21, 1989. He again pled not guilty to each charge. McGlory's trial began on April 25, 1990. On May 16, 1990, the jury returned its verdict finding McGlory guilty of each of the charges set forth in the superseding indictment.

McGlory was sentenced on February 11, 1991 and was remanded to the custody of the Bureau of Prisons less than two weeks later. He therefore remained in the custody of the United States Marshals Service from the date of his arrest on September 8, 1989 until February 22, 1991, almost all of that time as a pretrial detainee. McGlory has stated that during this time he was housed in various pretrial detention facilities, but neither he nor the government introduced evidence of the facilities in which he was confined or the dates of his confinement at each facility. This court has reviewed the record of McGlory's criminal trial and finds references to McGlory's initial detention on September 11, 1989 and thereafter on December 11, 1989 in Hancock County Jail, West Virginia, which suggests that he was detained there during that period. This encompasses the relevant period for the purpose of this appeal. We note other references that suggest that from approximately May 18, 1990 until at least August 2, 1990 he was housed in Fayette County Jail, Uniontown, Pennsylvania. By November 9, 1990, he had been moved to the Ohio County Jail in Wheeling, West Virginia. Since February 22, 1991, he has been in a federal prison designated by the Bureau of Prisons serving his term of life imprisonment. See 18 U.S.C. S 3621(a) and (b).

Before McGlory's criminal trial began, and during the time McGlory was in the custody of the United States Marshals Service, the DEA initiated administrative forfeiture proceedings regarding the property covered by DEA seizure numbers 52425 ($8,800 cash), 65613 (assorted clothing), 65615 (Louis Vuitton luggage),² 66651 (Louis Vuitton luggage/briefcase), 65323 (miscellaneous jewelry), and 67065 (cellular phone).³

The DEA provided notice of these administrative forfeiture proceedings by three methods. One was by published notice in a newspaper of general circulation. The DEA also sent notice by certified mail, return receipt requested, to McGlory's last known address at 236 S. Negley Avenue, Pittsburgh, Pennsylvania, and his mother's residence at 4267 Bryn Mawr Road, Pittsburgh, Pennsylvania. Finally, the DEA sent notice by certified mail, return receipt requested, addressed to McGlory to or in care of the United States Marshals Service at the federal courthouse located at 7th and Grant Street, Pittsburgh, Pennsylvania. Those notices were mailed between September 26, 1989 and November 15, 1989. McGlory claims that he received none of these notices. The government has made no attempt to show otherwise.

McGlory did not take steps for the return of the property seized until April 11, 1994 when he filed a pro se motion under Rule 41(e) for the return of the seized property. This was after the completion of the criminal trial proceedings on February 11, 1991. On February 3, 1995, the District Court referred McGlory's Rule 41(e) motion for the return of the seized property to a Magistrate Judge for a report and recommendation. While the matter was pending, this court decided United States v. $184,505.01 In U.S. Currency, 72 F.3d 1160 (3d Cir. 1995), another challenge by McGlory to different forfeitures, where we held that the notice given to McGlory in two of three judicial forfeiture proceedings did not satisfy due process. On December 17, 1996, the Magistrate Judge filed his report recommending that McGlory's Rule 41(e) motion be denied without prejudice to the judicial forfeiture actions. On December 30, 1996, before the District Court ruled on the Report and Recommendation, McGlory's counsel filed a motion for permission to file an amended Rule 41(e) motion and to stay any further proceedings on McGlory's pro se Rule 41(e) motion.

On January 3, 1997, the District Court determined that the Magistrate Judge "correctly denied the Rule 41(e) motion" and ordered that "the plaintiff 's Rule 41(e) motion is dismissed without prejudice to the pending civil forfeiture actions." United States v. McGlory, No. 89-144, Slip op. at 1, 4 (W.D. Pa. Jan. 3, 1997). The court opined that "[t]he administrative forfeiture proceedings did not suffer from the same defective notice problem as the judicial forfeiture proceedings, see United States v. $184,505.01 In U.S. Currency, 72 F.3d 1160 (3d Cir. 1995), since petitioner was personally served with notice of those actions." Id. at 2 (emphasis added). The court did not explain what constituted the "personal service" on McGlory to which it referred, nor did it expressly rule on McGlory's motion to file an amended Rule 41(e) motion.

On January 13, 1997, McGlory, through counsel, filed a motion for reconsideration of the January 3, 1997 order denying his Rule 41(e) motion. On January 14, 1997, he filed a notice of appeal from that same order without waiting for any order from the District Court. We stayed the appeal pending resolution of the motion for reconsideration, which the District Court denied on September 22, 1998, when it also adopted the Magistrate Judge's Report and Recommendation on a wide range of issues relating to the forfeitures. Both parties assume that we have jurisdiction to review the District Court's order of September 22, 1998. We do not. McGlory only appealed the January 3, 1997 order.

The Federal Rules of Civil Procedure do not specifically refer to a motion to reconsider but such motions, if filed within ten days of judgment, are generally treated as motions to alter or amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure. See Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir. 1986); Campbell v. Bartlett, 975 F.2d 1569, 1580 n.15 (10th Cir. 1992). We therefore analyze McGlory's motion to reconsider, which was timely, as though he had filed it under Rule 59(e).

Federal Rule of Appellate Procedure 4(a) provides that a notice of appeal filed before the disposition of one of the motions specified in Rule 4(a)(4)(A), including a Rule 59(e) motion, will become effective upon entry of the order disposing of the motion. Because McGlory filed his notice of appeal from the court's January 3, 1997 order while the Rule 59(e) motion was pending, the notice of appeal became effective on September 22, 1998 -the date the District Court entered...