U.S. v. Ritchie

• Decision Date: 26 August 2003
• Docket Number: No. 01-35989.,01-35989.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Lawrence Ritchie, Defendant, Heather Horner, Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

342 F.3d 903

UNITED STATES of America, Plaintiff-Appellee, v. Donald Lawrence Ritchie, Defendant, Heather Horner, Claimant-Appellant.

No. 01-35989.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2003 — San Francisco, California.

Filed August 26, 2003.

COPYRIGHT MATERIAL OMITTED

Crandon Randell, James Barkeley, Office of the United States Attorney, Anchorage, Alaska, for the plaintiff-appellee.

Jeffrey Commisso, Luce Forward Hamilton and Scripps, San Diego, California, Heather Horner, pro se for the claimant-appellant.

Appeal from the United States District Court for the District of Alaska; H. Russel Holland, Chief Judge, Presiding. D.C. No. CR-99-00062-HRH.

Before: Michael Daly Hawkins, William A. Fletcher, Circuit Judges, and Charles R. Breyer,^* District Judge.

OPINION

W. FLETCHER, Circuit Judge:

After the conclusion of criminal proceedings, appellant Heather Horner sought the return of seized personal property pursuant to Federal Rule of Criminal Procedure 41(e). The district court denied relief, and we reverse. We hold that Horner's Rule 41(e) motion should have been treated as a complaint filed under the Federal Rules of Civil Procedure. Joining our sister circuits, we further hold that when a letter providing personal notice of a forfeiture proceeding is returned undelivered, the Drug Enforcement Administration ("DEA") must make reasonable additional efforts to provide personal notice of the proceeding.

I. Background

Appellant Horner was dating Donald Ritchie, a drug dealer. In the course of its investigation of Ritchie in 1999, the DEA obtained and executed a search warrant at Horner's apartment. The DEA found and confiscated $3,000 cash, a revolver, and other items. Ritchie was subsequently arrested and convicted of federal drug charges, but Horner was never charged or arrested. The DEA nonetheless administratively forfeited the cash and revolver it had taken from her apartment.

After the completion of criminal proceedings against Ritchie, Horner filed a pro se motion in federal district court on April 27, 2001 for the return of her property pursuant to Federal Rule of Criminal Procedure 41(e). Horner alleged that the DEA had not provided her adequate notice of the forfeiture proceedings, and she asked the court to vacate the forfeiture and to order the DEA to return the seized items to her.

On June 7, the government filed an opposition to Horner's motion. It contended that the DEA's notice procedures had been adequate and that, in any event, Horner had received actual notice of the forfeiture proceedings. To support its factual contentions, the government attached a variety of materials to its opposition. It attached a declaration of John Hieronymus, forfeiture counsel of the DEA, attesting to the DEA's attempts at notice. The declaration was not signed by Hieronymus, but rather by Vicki Rashid, who signed it "for" Hieronymus. Eighteen exhibits were attached to the Hieronymus declaration. Among them were copies of notices published in the USA Today and the Wall Street Journal, copies of letters sent by the DEA to Horner and Ritchie, and a copy of a "Petition for Return of Property" signed by Ritchie and sent to the DEA. The government contended, among other things, that the handwriting on the envelope containing Ritchie's petition was Horner's, and that Horner therefore must have had adequate notice of the impending forfeiture proceedings.

On July 5, the district court denied Horner's motion "[f]or the reasons and upon the authorities set out by the government in its opposition." The court specifically found that Horner was "duly and lawfully notified of the DEA forfeiture proceedings." On July 26, Horner filed a reply to the government's opposition, but the district court took no action in response to her reply. Horner appealed, and we appointed pro bono counsel.

We review de novo a district court's decision to deny a Rule 41(e) motion. United States v. Marolf, 173 F.3d 1213, 1216 (9th Cir.1999). If a Rule 41(e) motion is filed when no criminal proceeding is pending, the motion is treated as a civil complaint seeking equitable relief. United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987).

II. Discussion

A. Rule 41(e) Motion Treated as a Complaint

Horner contends on appeal that the district court erred by failing to treat her Rule 41(e) motion as a civil complaint. The government first argues that Horner waived this issue by failing to raise it below. Because Horner was proceeding pro se and because her motion was summarily denied, however, she had little meaningful opportunity to raise this issue in the district court. The government, moreover, itself raised the issue in the district court when it suggested in its opposition that Horner's complaint "[a]rguably. . . could be treated as a complaint invoking the court's equitable jurisdiction." In any event, we have discretion to hear an issue raised for the first time on appeal when the issue is purely a question of law and does not depend on the factual record developed below. See Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th Cir.1996). Whether Horner's Rule 41(e) motion should be treated as a civil complaint is purely a question of law and does not depend on facts not in the present record. For these reasons, we believe that it is appropriate for us to reach the issue.

The government argues that, if we reach the merits of Horner's contention, the district court had discretion to dismiss a free-standing Rule 41(e) motion based on a lesser showing than would have been required to dismiss a civil complaint. Our decisions indicate no such discretion. See Marolf, 173 F.3d at 1216 ("Rule 41(e) motions are treated as proceedings in equity when there are no criminal proceedings pending against the movant." (emphasis added)); Martinson, 809 F.2d at 1367("Such motions are treated as civil equitable proceedings even if styled as being pursuant to Fed.R.Crim.P. 41(e)." (emphasis added)). Our sister circuits follow the rule we established by Martinson. See, e.g., United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.1995); Weng v. United States, 137 F.3d 709, 711 n. 1 (2d Cir.1998); United States v. McGlory, 202 F.3d 664, 670 (3d Cir.2000); Hunt v. Dep't of Justice, 2 F.3d 96, 97 (5th Cir.1993); United States v. Duncan, 918 F.2d 647, 654 (6th Cir.1990); United States v. Solis, 108 F.3d 722, 722 (7th Cir.1997); Muhammed v. Drug Enforcement Agency, 92 F.3d 648, 651 (8th Cir.1996); United States v. Deninno, 103 F.3d 82, 85 (10th Cir.1996); United States v. Potes Ramirez, 260 F.3d 1310, 1314(11th Cir.2001).

To support its argument, the government relies on United States v. Elias, 921 F.2d 870 (9th Cir.1990), and United States v. Clagett, 3 F.3d 1355 (9th Cir.1993). In Elias, we affirmed the denial of a Rule 41(e) motion where the parties agreed that the claimant had proper notice of administrative forfeiture proceedings. 921 F.2d at 872. In Clagett, we reversed the district court's denial of a Rule 41(e) motion and remanded for a determination of whether the claimant had proper notice. 3 F.3d at 1356-57. Neither Elias nor Clagett indicates that a district court may treat a Rule 41(e) motion as something less than a civil complaint when there is no pending criminal proceeding. Rather, Elias and Clagett stand for the proposition that where a claimant has received adequate notice of an earlier administrative forfeiture proceeding, and thus has had an adequate remedy at law, the district court should deny a subsequent Rule 41(e) motion. In this case, because Horner alleged in her motion that she had not received adequate notice of the impending administrative forfeiture, the district court was required to treat the motion as a civil complaint governed by the Federal Rules of Civil Procedure.

The government contends that even if Horner's Rule 41(e) motion must be treated as a civil complaint, the district court properly dismissed it under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The government further contends that the district court appropriately considered the exhibits submitted by the government in its opposition and properly concluded that the DEA's notice was adequate. We disagree with both contentions.

When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond. See Fed.R.Civ.P. 12(b); Parrino v. FHP, Inc., 146 F.3d 699 706 n. 4 (9th Cir.1998). A court may, however, consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment. See Van Buskirk v. CNN, 284 F.3d 977, 980(9th Cir.2002); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.1994); 2 James Wm. Moore et al., Moore's Federal Practice § 12.34[2] (3d ed.1999). The government contends that the declaration and exhibits attached to its opposition could be considered under either the doctrine of incorporation by reference or the doctrine of judicial notice.

Certain written instruments attached to pleadings may be considered part of the pleading. See Fed.R.Civ.P. 10(c). Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim. See Van Buskirk, 284 F.3d at 980; Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002); Venture Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431(7th Cir.1993). The defendant may offer such a document, and the district court may treat such a document as...