213 F.3d 147 (3rd Cir. 2000), 98-3578, United States v. One Toshiba Color Television

Docket Nº:*Reginald McGlory, Appellant in No. 98-3578 *(Pursuant to Rule 12(a), F.R.A.P.) (D.C. Civ. No. 90-cv-00138)
Citation:213 F.3d 147
Case Date:May 24, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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213 F.3d 147 (3rd Cir. 2000)




*Reginald McGlory, Appellant in No. 98-3578 *(Pursuant to Rule 12(a), F.R.A.P.) (D.C. Civ. No. 90-cv-00138)




*Reginald McGlory, Appellant in No. 98-3579 *(Pursuant to Rule 12(a), F.R.A.P.) (D.C. Civ. No. 90-cv-00370)

Nos. 98-3578 and 98-3579

United States Court of Appeals, Third Circuit

May 24, 2000

ARGUED EN BANC: November 8, 1999

Submitted Under Third Circuit LAR 34.1(a) July 13, 1999

On Appeal From the United States District Court For the Western District of Pennsylvania District Judge: Honorable D. Brooks Smith

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[Copyrighted Material Omitted]

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MICHAEL A. YOUNG, ESQUIRE (ARGUED) 165 Christopher Street New York, NY 10014, Counsel for Appellant

HARRY LITMAN, ESQUIRE (ARGUED) United States Attorney BONNIE R. SCHLUETER MARY McKEEN HOUGHTON, ESQUIRE Assistant United States Attorney 633 United States Post Office and Courthouse Pittsburgh, PA 15219 Counsel for Appellees

Submitted Under Third Circuit LAR 34.1(a) July 13, 1999

Before: BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.

ARGUED EN BANC: November 8, 1999


Filed May 24, 2000


BECKER, Chief Judge.

In these consolidated appeals Reginald McGlory challenges the results of two forfeiture proceedings. The first appeal requires that we revisit the question of the notice that the United States must provide when it pursues forfeiture proceedings against the property of an incarcerated defendant in its custody. The second concerns the District Court's use of the doctrine of laches to prevent McGlory from challenging a forfeiture proceeding in which the notice given for the forfeiture is later discovered to be constitutionally inadequate.

In the first appeal, which concerns forfeiture of certain items of jewelry, the government directed notice by certified mail to the facility in which McGlory was incarcerated. McGlory maintains that he did not receive the notice, and that the government should have ensured that he received personal notification of the proceedings against his property. In United States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc), which involved different property of McGlory's that was subject to administrative forfeiture, this Court ruled that merely sending notice to the Marshals Service, in whose custody McGlory was held, did not satisfy the Constitution. We held that "at a minimum, due process requires that when a person is in the government's custody and detained at a place of its choosing, notice of a pending administrative forfeiture proceeding must be mailed to the detainee at his or her place of confinement." Id. at 674. We noted, however, that "[w]hether anything more is required is not presently before us." Id. This appeal squarely presents the question whether "more" is required. McGlory asks that we rule the judicial forfeitures at issue in this case invalid because he did not receive actual notice of the proceedings.

As in all cases in which proper notice under the Due Process Clause is at issue, the touchstone of analysis is whether the notice was "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 (1950). The government urges that mailing a letter by first-class mail to the location of the interested party is always sufficient. McGlory, in contrast, argues that a higher standard should prevail when the party is held in custody by the same government that wishes to serve notice upon him. He maintains that the government was in the position to ensure actual notice of the proceedings. Such notice has been required by several of our sister circuits, most notably by the Second Circuit in Weng v. United States, 137 F.3d 709 (2d Cir. 1998).

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Though there is much to recommend the actual notice standard when the United States Attorney is dealing with federal prisoners and detainees, we are not prepared to require the government to bear the evidentiary burden of establishing actual notice in all cases. Such a demonstration could impose needless litigation costs, especially if the due process challenge arises years after the conclusion of the initial proceedings. Moreover, the Supreme Court has never required the demonstration of actual notice. At all events, the jurisprudence of constitutional notice appropriately focuses not on what actually occurred, but rather on the procedures that were in place when notice was attempted. Evaluating the adequacy of these procedures requires consideration of the context in which they occur.

We conclude that the circumstances surrounding the federal government's incarceration of a prisoner require greater efforts at ensuring notice than would be expected for individuals at liberty in society. When one is in prison, the relative difficulty to the government to effect actual notice is reduced, while the ability of prisoners to ensure that they receive notices directed to them suffers. However, we stop short of the Weng standard and adopt an approach that focuses on the extent that procedures are reasonably likely to effect actual notice. Under this regime, the government's obligations do not end at the mailbox. Rather, we hold that if the government wishes to rely on direct mail, it bears the burden of demonstrating that procedures at the receiving facility were reasonably calculated to deliver the notice to the intended recipient. On this record, we cannot determine whether such a system was in place in McGlory's facility. We will therefore vacate the judgment and remand to the District Court for further factual findings on the sufficiency of the notice.

In the second forfeiture now before us, which concerns certain electronic equipment, the notice provided to McGlory concededly fell short of the constitutional minimum. The government contends, however, that McGlory's attempt to recover the forfeited property is barred by the doctrine of laches, and the District Court agreed. We conclude that the doctrine of laches should not be considered when the issue is whether a judgment is void. If McGlory unreasonably delayed in seeking the recovery of his property, the proper time to raise the issue is in a proceeding in which he seeks recovery from the government. The District Court will have to consider whether such recovery is available by a motion to vacate that arises under Fed. R. Civ. P. 60(b) or if McGlory will have to proceed by other means. We will therefore vacate the District Court's judgment that McGlory's action was barred by laches.


This is the third time that forfeitures of McGlory's property have come before this Court, and the facts surrounding his arrest and detention are described several times in the Federal Reporter, most recently in United States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc); see also United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 1995); United States v. McGlory, 968 F.2d 309 (3d Cir. 1992) (upholding McGlory's criminal conviction and sentence). We therefore need not rescribe this story save for the highlights.

On September 8, 1989, Pittsburgh police officers and Drug Enforcement Administration agents arrested McGlory for conspiracy to possess heroin with intent to distribute. He was ultimately convicted of conspiracy to possess and distribute heroin, possession of heroin with intent to distribute, possession of a firearm by a convicted felon, use of a firearm in a drug trafficking operation, and laundering drug proceeds. He received a life sentence. On the date of his arrest, the officers searched several residences used by McGlory and seized numerous items of property, including, at issue in this appeal,

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one Toshiba color television set, two answering machines, one Health Tech computer, and assorted jewelry. In 1990, the United States Attorney instituted civil judicial forfeiture actions against these items under 21 U.S.C. S 881.

Until McGlory was sentenced on February 11, 1991, he was in the custody of the United States Marshals Service, and was housed in various detention facilities with which it had contracted. In initiating the forfeiture against the jewelry, the government mailed notice of the action to McGlory care of the Ohio County Jail in Wheeling, West Virginia, where he was apparently being held at the time. The notice was received at the jail on November 9, 1990 and signed for by one of the jail's officers. The government also sent notice to the jail by regular mail and mailed notice by certified mail to one of McGlory's pre-incarceration residences. That letter was not accepted. Finally, the government sent notice to McGlory's ex-wife, and to an attorney by the name of William Magann,1 and it published notice for three consecutive weeks in a general circulation newspaper. No one filed a claim or answer as directed by the notice to those seeking to contest the forfeiture. A default judgment was entered in the government's favor on January 7, 1991. The government ultimately sold the jewelry for $9,950.

The government also initiated forfeiture proceedings against the television set and the other equipment, mailing the notice to an address used by McGlory. The government also sent notice to McGlory's mother and Magann and published notice in a newspaper. This proceeding was resolved by default judgment in the government's favor on May...

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