Glasgow v. U.S. Drug Enforcement Admin.

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before WOLLMAN, LOKEN; LOKEN
• Citation: Glasgow v. U.S. Drug Enforcement Admin., 12 F.3d 795 (8th Cir. 1993)
• Decision Date: 28 December 1993
• Docket Number: No. 92-3602,92-3602
• Parties: Archie GLASGOW, Plaintiff-Appellant, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Larry Fox, Special Agent Timothy Brunholtz, Defendants-Appellees.

Page 795

12 F.3d 795

Archie GLASGOW, Plaintiff-Appellant, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Larry Fox Special Agent Timothy Brunholtz, Defendants-Appellees.

No. 92-3602.

United States Court of Appeals Eighth Circuit.

Submitted June 16, 1993.

Decided Dec. 28, 1993.

E.E. Edwards, Nashville, TN, argued, for plaintiff-appellant.

John James Ware, St. Louis, MO, argued, for defendants-appellees.

Before WOLLMAN, LOKEN, Circuit Judges, and HUNTER, ^* Senior District Judge.

LOKEN, Circuit Judge.

On November 23, 1988, Archie Glasgow flew from Indianapolis to visit his wife's family in Albuquerque. While awaiting a connecting flight in St. Louis, he was stopped by Drug Enforcement Administration agents Larry Fox and Timothy Brunholtz. The agents seized $66,700 in cash from his briefcase. Four months later, despite Glasgow's numerous attempts to recover his money, DEA declared the $66,700 forfeited under 21 U.S.C. Sec. 881. Glasgow commenced this action against DEA and the agents, claiming violations of his Fourth Amendment and due process rights. The district court granted summary judgment for all the defendants, concluding that Glasgow's claims were barred because he had adequate notice of the administrative forfeiture proceeding yet did not file a timely claim with the agency. Glasgow appeals. We reverse and remand.

I.

In reviewing the district court's grant of summary judgment, we view the facts most favorably to Glasgow. See Johnson v. Group Health Plan, Inc., 994 F.2d 543, 545 (8th Cir.1993).

Glasgow began his trip with $17,000 cash; jewelry sales and a successful poker game provided him with $66,700 for the trip home. At the Indianapolis airport, security personnel observed the cash in Glasgow's briefcase and informed a local police officer. Without talking to Glasgow, the officer alerted agents Fox and Brunholtz in St. Louis. When Glasgow arrived in St. Louis, agents Fox and Brunholtz stopped and questioned him, then took him to a distant room where they searched his briefcase and seized the cash. He was released in time to board his connecting flight. In Albuquerque, law enforcement officers again stopped Glasgow at the airport, searched his bags and car, but seized nothing and permitted him to leave. Glasgow was never charged with any crime.

The following week, Glasgow's attorneys began their efforts to recover his seized currency. Beginning with a phone call and letter to agent Brunholtz in St. Louis, these efforts included multiple Freedom of Information Act requests and numerous communications with DEA officials and attorneys in St. Louis and Washington, D.C. By the end of November 1988, and continuously thereafter, Glasgow's attorneys had unambiguously conveyed his intent to contest any attempt by DEA to forfeit the money.

On January 23, 1989, DEA sent a notice of seizure and intent to forfeit by certified mail to Glasgow and his attorneys. The notice advised:

In the alternative, you may contest the forfeiture of the seized property in UNITED STATES DISTRICT COURT. To do so, you must file a claim of ownership and bond with the DEA. Submit the bond in the amount shown above in a cashier's check or a certified check payable to the U.S. Department of Justice, or present satisfactory surety.

If you are indigent (needy and poor) you may not have to post the bond. To request a waiver of the bond, you must fully disclose your finances in a signed statement called a "Declaration in Support of Request to Proceed IN FORMA PAUPERIS " along with a claim of ownership of the property. Use the format of the pauperis declaration shown as Form 4 in the Appendix of Forms following Rule 48 of the Federal Rules of Appellate Procedure, or obtain a form from the DEA field office. The claim of ownership, with either bond or the "Declaration in Support of Request to Proceed IN FORMA PAUPERIS," must be filed within twenty (20) days of the first date of publication of the notice of seizure in the Wednesday edition of USA Today. The notice will be published three successive weeks. You should review that newspaper for the exact date.

(emphasis in original). The first publication turned out to be weeks later, on February 15, 1989. Glasgow and his attorneys missed it, and despite several conversations between the parties during this period, no one at DEA mentioned that the twenty-day claim period had begun. On March 17, Glasgow's counsel submitted a claim and bond. DEA rejected the claim as untimely, declared the money administratively forfeited, and summarily denied Glasgow's subsequent "petition for remission." ¹

Glasgow then filed this action against DEA and agents Fox and Brunholtz, alleging that the seizure violated his Fourth Amendment rights and that DEA's inadequate notice deprived him of due process in the administrative forfeiture proceeding. The district court denied defendants' motion to dismiss for lack of jurisdiction ² but granted their motion for summary judgment. The court held that the January 23, 1989, notice of seizure and intent to forfeit satisfied due process because it informed Glasgow that forfeiture proceedings had begun, warned him of time limits in which to file a claim and bond, and told him to review Wednesday editions of USA Today for the first date of publication. Therefore, the court concluded, Glasgow's Fourth Amendment claims were barred by his failure to raise them in the administrative forfeiture proceeding.

II.

DEA conducts administrative forfeitures using the procedures set forth in the Tariff Act of 1930. See 21 U.S.C. Sec. 881(d). The agency must publish notice of its intent to forfeit for three weeks in a newspaper of general circulation, and it must send "[w]ritten notice of seizure together with information on the applicable procedures ... to each party who appears to have an interest in the seized article." 19 U.S.C. Sec. 1607(a). ³ If an interested party files a claim and bond within twenty days after the first publication, the agency must refer the matter to the United States Attorney for the district in which the article was seized for commencement of a judicial forfeiture proceeding. See 19 U.S.C. Sec. 1608. Only if no claim and bond are filed may DEA itself declare the property forfeited. See 19 U.S.C. Sec. 1609.

As we noted in Woodall, a claimant's right to compel the agency to proceed by judicial forfeiture is an important statutory check on the government's power to forfeit private property. Therefore, DEA's compliance with statutory and constitutional notice requirements are essential components of the statutory regime. In Woodall, DEA violated those requirements by knowingly sending written notice to the claimant at the wrong address. In this case, Glasgow and his counsel admit they received DEA's written notice; the question is whether that notice was adequate.

The statute required that DEA send Glasgow personal written notice of its intent to forfeit "together with information on the applicable procedures." 19 U.S.C. Sec. 1607(a). Due process required that this notice be "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 Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Glasgow argues that the DEA notice failed to satisfy these standards because it omitted the one piece of information most critical to affording him a reasonable opportunity to be heard--the deadline for filing a claim and bond that would be timely under 19 U.S.C. Sec. 1608. We agree.

Although the DEA notice advised Glasgow of the existence of a procedure for contesting the forfeiture, it was sent well before the twenty day claim period began and did not disclose either the first or the last date of that period. The government argues that its written notice was sufficient because all Glasgow had to do was look in every Wednesday edition of USA Today until he found the first notice. We think that is an unreasonably narrow view of DEA's due process obligations. We have examined the Wednesday edition of USA Today in the record on appeal. It lists hundreds of seizures by federal judicial district and DEA six-digit seizure number. As this case illustrates, there is a high risk that a written notice that merely refers to an unspecified future edition of this publication will fail to give actual notice of the claim period to all but the most sophisticated claimants. We conclude that known claimants' property interests are too constitutionally significant to be satisfied by this type of notice, particularly since the agency can so easily advise known claimants of precisely when they must file their claims.

In this regard, we note that the written notices of other forfeiting agencies have included the information withheld from Glasgow. So have DEA's written notices in other proceedings. For example, in Willis v. United States, 787 F.2d 1089, 1093 (7th Cir.1986), a DEA written notice that the court upheld as adequate advised:

If you intend to place the matter in the United States District Court to contest the probable cause for this seizure, a claim and cost bond of $250.00 must be filed with this office on or before September 16, 1981.

(emphasis added.) Likewise, in Sammons v. Taylor, 967 F.2d 1533, 1546 (11th Cir.1992), an FBI forfeiture notice issued under 21 U.S.C. Sec. 881 advised the claimant: "If you want to contest the seizure or forfeiture of the property in court, you must file a claim ... with the FBI by SEPTEMBER 26, 1988." The regulations of the Customs...