U.S. v. Dusenbery

• Decision Date: 28 July 1998
• Docket Number: No. 5:91-CR-291-01.,5:91-CR-291-01.
• Citation: 80 F.Supp.2d 744
• Parties: UNITED STATES of America, Plaintiff, v. Larry Dean DUSENBERY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

80 F.Supp.2d 744

UNITED STATES of America, Plaintiff, v. Larry Dean DUSENBERY, Defendant.

No. 5:91-CR-291-01.

United States District Court, N.D. Ohio, Eastern Division.

July 28, 1998.

Elmer Angelo Giuliani, Cleveland, OH, for Edward Clouse, party in interest.

James R. Wooley, James L. Morford, Office of the U.S. Atty., Cleveland, OH, for U.S.

MEMORANDUM & ORDER

O'MALLEY, District Judge.

In 1990 and 1992, the government obtained administrative civil forfeiture of several pieces of property ostensibly owned by defendant Larry Dusenbery. Subsequently, Dusenbery filed a motion for return of this property, arguing he had not received notice of the forfeitures and was thus denied due process of law. Judge Bell of this Court denied Dusenbery's motion, but the Sixth Circuit Court of Appeals reversed and remanded.¹

The government now moves for summary judgment on the ultimate question of the propriety of the forfeitures (docket no. 557). For the reasons stated below, the Court finds the government's arguments well-taken. Accordingly, the government's motion for summary judgment is GRANTED, and Dusenbery's motion for return of his property is denied. Dusenbery's cross-motion for summary judgment (docket no. 566) is DENIED.

I. PROCEDURAL BACKGROUND

To understand the procedural background of this case, the Court must first refer to an earlier, separate case involving Dusenbery. In 1986, Dusenbery was convicted on narcotics charges involving the possession and distribution of cocaine. United States v. Dusenbery, case no. 86-CR-102 (N.D.Ohio 1986). In connection with this conviction, the government obtained civil forfeiture of several pieces of personal property, including $21,940.00 in U.S. currency and a 1984 Chevrolet Monte Carlo. Dusenbery later moved for a return of this property, claiming that the forfeited property was his and that the government's forfeiture proceedings were improper. Judge Dowd of this Court denied Dusenbery's motion for return of property, based on lack of jurisdiction, but the Sixth Circuit Court of Appeals reversed. See Dusenbery v. United States, 97 F.3d 1451, 1996 WL 549818 (6th Cir. 1996) (vacating Judge Dowd's order and remanding for further proceedings). Judge Dowd then conducted evidentiary hearings regarding Dusenbery's motion for return of property. See Dusenbery v. United States, Case No. 5:95-CV-1872, transcript at 2, 5, 22 (N.D.Ohio July 23, 1997) (Dowd, J.) (evidentiary hearing transcript). The Court refers below to all of these earlier proceedings as Dusenbery I.

Subsequently, in 1994, Dusenbery appeared before Judge Sam H. Bell of this Court and was convicted of engaging in a continuing criminal enterprise ("CCE") — the purpose of the enterprise being to distribute cocaine and cocaine base. This conviction and sentence were affirmed on appeal. United States v. Dusenbery, 89 F.3d 836, 1996 WL 306517 (6th Cir.1997), cert denied, 519 U.S. 956, 117 S.Ct. 375, 136 L.Ed.2d 264 (1996). In connection with Dusenbery's CCE conviction, the government again sought and obtained civil forfeiture of several items of Dusenbery's property. Specifically, these items included: (1) $18,672.74 in U.S. currency, seized on July 9, 1990, and forfeited on October 19, 1990; (2) $80,141.93 in U.S. currency, seized on July 9, 1990, and forfeited on October 19, 1990; (3) a 1990 Oldsmobile Delta 88 convertible, seized on October 10, 1991, and forfeited on April 20, 1992; (4) a 1956 Chevrolet Corvette convertible, seized on October 21, 1991, and forfeited on April 28, 1992; and (5) a $20,754.23 National City Bank Cashier's check, listed in the name of Dusenbery and Edward Clouse, seized on August 8, 1990, and forfeited on July 29, 1992.

As he had in Dusenbery I, Dusenbery filed a Rule 41(e) motion for return of property. Dusenbery asserted that the FBI had improperly seized the five items of his property because it had failed to adequately notify him of the proposed forfeitures. On August 5, 1996, Judge Bell denied Dusenbery's motion for return of property, concluding that the government had properly carried out the forfeiture process and that Dusenbery had received adequate notice of each proposed forfeiture. Dusenbery appealed this ruling, and the Sixth Circuit Court of Appeals found his appeal well-taken. The Court of Appeals held that, "under all the circumstances of this case, the record before this court does not establish that Dusenbery was provided constitutionally adequate notice of the seizures and impending forfeitures at issue." United States v. Dusenbery, 114 F.3d 1189, 1997 WL 321148 at *2 (6th Cir.1997). The Court of Appeals ended its opinion with the following mandate: "[t]he case is remanded for an evidentiary hearing as to the constitutional sufficiency of the government's notice[s of forfeiture] to Dusenbery. If the district court determines that [these] notice[s] [were] insufficient, Dusenbery should be given an opportunity to contest the forfeitures at this time." Id. at *3.

In preparation for the evidentiary hearing, this Court² ordered the government to file a list of those witnesses it intended to call at the evidentiary hearing, and also a copy of all documents upon which it intended to rely. The government did so. Just before the evidentiary hearing was scheduled to occur, however, the government filed the pending motion for summary judgment. In this motion, the government argues that even if its notices of forfeiture to Dusenbery were constitutionally insufficient, it is still entitled to forfeiture of the seized properties because there is no factual dispute that the properties are proceeds of criminal activity. The Court examines this argument below, in light of the undisputed facts in this case.

II. FACTUAL BACKGROUND

In Dusenbery I, Dusenbery was arrested and ultimately convicted on narcotics charges. The 1986 trial record reveals that, beginning in 1983, Dusenbery made his living by distributing cocaine. In connection with this 1986 conviction, Dusenbery was incarcerated at the Ashland Federal Correctional Institute in Kentucky. United States v. Dusenbery, 89 F.3d 836, 1996 WL 306517 at *1 (6th Cir.1996). Despite his incarceration, Dusenbery continued to oversee and operate his cocaine distribution business. Id.

In 1991, Dusenbery and seven co-defendants were charged in a twenty-seven count indictment with various drug trafficking offenses in connection with the drug-related activities Dusenbery conducted while imprisoned. Dusenbery was charged with conducting a continuing criminal enterprise ("CCE"), conspiracy to distribute cocaine, and unlawful use of communications facilities. Among Dusenbery's co-defendants were his mother, Mary Dusenbery, and his mother's boyfriend, Edward Clouse. After a four day trial, a jury found Dusenbery guilty of both the conspiracy and the CCE charges. On July 28, 1994, the trial court dismissed the conspiracy count on the government's motion, and sentenced Dusenbery to 480 months imprisonment on the CCE count. Dusenbery was to serve this sentence consecutively to the sentence he was currently serving.

On July 10, 1996, Dusenbery then filed his Rule 41(e) motion for the return of the five items of property seized and forfeited in connection with his CCE conviction. Dusenbery alleged that the FBI had denied him due process of law by failing to give him notice of the government's proposed forfeitures of his property. In response to Dusenbery's motion, the government argued that it had properly notified Dusenbery of the forfeiture proceedings. The government asserted that it sent personal notice to Dusenbery's mother as well as to Dusenbery himself at the Milan Federal Correctional Institute ("Milan FCI"), where the government maintained he was incarcerated at the time. The government also stated that it published notice of the proposed forfeitures in the Cleveland Plain Dealer. Finally, the government argued that Dusenbery had notice of the forfeiture proceedings through evidence presented at his criminal trial.

In his reply, Dusenbery argued that he never received the mailed forfeiture notices because two of them were sent to the wrong post office box in Milan, and the other three were sent to Milan FCI at a time when, as the government was aware, Dusenbery had been transferred to a local jail to await his trial. As mentioned, on August 5, 1996, Judge Bell denied Dusenbery's 41(e) motion. After Dusenbery filed his appeal, the case was remanded to this Court for an evidentiary hearing on the issue of the adequacy of notice. Just before the evidentiary hearing was to occur, the government filed its pending motion for summary judgment.

On July 23, 1997, Judge David Dowd conducted an evidentiary hearing with respect to the property seized in connection with Dusenbery I. At this hearing, Dusenbery testified under oath that, to purchase the 17 items of personal property and the 1984 Chevrolet Monte Carlo seized in connection with his 1986 conviction, he had used money he earned through selling drugs. Tr. at 11-22. Dusenbery also testified that the last time he was lawfully employed was between 1981 and 1982, when he worked at a bakery and helped another individual remodel houses. Id. at 16. Dusenbery has not been released from prison since his 1986 conviction.³

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....

Rule 56(e) specifies the materials properly submitted in connection with a motion for summary judgment:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively...