Dusenbery v. U.S.
| Decision Date | 25 September 1996 |
| Docket Number | No. 95-4188,95-4188 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Larry Dean DUSENBERY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
N.D.Ohio, No. 95-01872; David D. Dowd, Jr., Judge.
Before: GUY, RYAN, and MOORE, Circuit Judges.
Larry Dean Dusenbery appeals a district court order denying his motion for return of property filed pursuant to Fed.R.Crim.P. 41(e). The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
In 1993, Dusenbery filed his Rule 41(e) motion, requesting the return of property seized by the Federal Bureau of Investigation (FBI) in April 1986. The district court determined that it lacked jurisdiction to entertain Dusenbery's motion because a Rule 41(e) motion was not the proper remedy for seeking return of his property. Consequently, the court denied the motion. Dusenbery has filed a timely appeal.
Upon review, we determine that the district court improperly concluded that it lacked jurisdiction to consider Dusenbery's Rule 41(e) motion. This court reviews a district court's determination that it lacked jurisdiction to consider a Rule 41(e) motion for an abuse of discretion. See Frazee v. Internal Revenue Serv., 947 F.2d 448, 449 (10th Cir.1991).
The district court abused its discretion in denying Dusenbery's motion for lack of jurisdiction. In his Rule 41(e) motion, Dusenbery alleged that the defendant forfeited his property without giving him adequate notice of the forfeiture. While the district court concluded that it lacked jurisdiction because Dusenbery had not followed the procedures for seeking judicial relief set forth in the forfeiture statute and regulations, Dusenbery argues that he was unable to comply with these procedures because he never received notice of the forfeiture of his property.
Since Dusenbery was raising a due process challenge to the forfeiture, the district court had jurisdiction to consider his claims. While most judicial challenges to a forfeiture are foreclosed by the plaintiff's failure to use the mechanism provided in the forfeiture statute and regulations, the federal courts have jurisdiction to entertain collateral due process attacks on administrative forfeitures, including challenges to the adequacy of notice. United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.1995) (per curiam); Toure v. United States, 24 F.3d 444, 445-46 (2d Cir.1994) (per curiam); United States v. Woodall, 12 F.3d 791, 793 (8th Cir.1993). Although Dusenbery cannot pursue his claim in a Rule 41(e) motion because criminal proceedings against him have been completed, the district court should have construed his motion as a civil complaint seeking equitable relief. Thompson v. Covington, 47 F.3d 974, 975 (8th Cir.1995) (per curiam); Giraldo, 45 F.3d at 511; Toure, 24 F.3d at 445.
Additionally, in order to assist the district court upon remand, we make several comments concerning the current state of the record. The record reveals that, in April 1986, the FBI conducted a search of Dusenbery's trailer in Atwater, Ohio and seized $21,940, a 1984 Chevrolet Monte Carlo, and a large number of Dusenbery's personal items. The government acknowledges that it subsequently forfeited this property as proceeds of drug trafficking. Although Dusenbery argues that he was not aware of these forfeiture proceedings, the government submits that it provided Dusenbery with adequate notice of the forfeiture of his property.
Before the government forfeits property, due process requires that the government provide notice which is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Giraldo, 45 F.3d at 511. Further, if the government is incarcerating a property owner when it elects to pursue a forfeiture action against his property, fundamental fairness requires that the defendant receive actual notice of the agency's attempt to forfeit. Id.; Woodall, 12 F.3d at 794-95. The government cannot assert that it was unaware of a property owner's...
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Dusenbery v U.S.
... ... 424 U.S., at 335. The United States, on the other hand, urges us to apply the method set forth in Mullane, supra, which espouses a more straightforward test of reasonableness under the circumstances. Brief for United States 27 ... We think Mullane supplies the appropriate analytical framework. The Mathews balancing test was first conceived in the ... ...
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Keszthelyi v. U.S.
...construe Rudolf Keszthelyi's 18 U.S.C. § 983(e) motion as a civil complaint for equitable relief based on Dusenberry v. United States, 97 F.3d 1451 (text in 1996 WL 549818 (6th Cir. Sept. 25, 1996)). The Sixth Circuit has held that although Fed. R. Crim. P. 41(g) (formerly Fed. R. Crim. P. ......
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