U.S. v. Rodgers

• Decision Date: 11 March 1997
• Docket Number: No. 96-5205,96-5205
• Citation: 108 F.3d 1247
• Parties: 97 CJ C.A.R. 384 UNITED STATES of America, Plaintiff-Appellee, v. Joe Earl RODGERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1247

108 F.3d 1247

97 CJ C.A.R. 384

UNITED STATES of America, Plaintiff-Appellee, v. Joe Earl RODGERS, Defendant-Appellant.

No. 96-5205.

United States Court of Appeals, Tenth Circuit.

March 11, 1997.

Submitted on the briefs: ^*

Stephen C. Lewis, United States Attorney, and Catherine Depew Hart, Assistant United States Attorney, Tulsa, OK, for Plaintiff-Appellee.

Joe Earl Rodgers, Pro Se.

Before BRORBY, EBEL and KELLY, Circuit Judges.

EBEL, Circuit Judge.

Appellant Joe Earl Rodgers ("Rodgers") brought this action to set aside the administrative forfeiture of $30,006.25 in United States currency, $1,951.00 in United States Currency, a 1979 Corvette, a 1977 Corvette, and a 1984 Ford Econoline van. Rodgers challenges the forfeiture on the ground that the United States Drug Enforcement Administration (the "DEA") did not provide him with proper notice of the forfeiture proceedings. The district court denied Rodgers's pro se "Motion for Return of Property" and determined that the DEA's attempts to provide Rodgers with notice were reasonably calculated, under all the circumstances, to apprise him of the pendency of the forfeiture proceedings. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). We disagree and REVERSE the district court's order. ¹

BACKGROUND

On February 16, 1991, local law enforcement officers in Oklahoma arrested Rodgers under state law for certain drug offenses and seized, inter alia, vehicles, currency, firearms, drug paraphernalia, knives, stereos, a surveillance camera, an answering machine, a typewriter, and a cellular phone from two of Rodgers' residences. Rodgers made bond and was released by Tulsa police, but he failed to appear at his trial date three days later. Rodgers remained a fugitive until August 17, 1991, when the United States Customs Service arrested him as he attempted to re-enter the United States from Mexico.

In the meantime, on March 8, 1991, federal law enforcement officers attempted to serve Rodgers with an arrest warrant issued pursuant to a federal indictment charging Rodgers with conspiracy to distribute cocaine. However, because Rodgers was a fugitive, the U.S. Marshal was unable to arrest Rodgers. Nonetheless, the federal authorities adopted for federal forfeiture many of the items seized by local law enforcement. ² These items included: (1) $30,006.25 in United States currency; (2) $1,951.00 in United States currency; (3) a 1977 Chevrolet Corvette; (4) a 1979 Chevrolet Corvette; and (5) a 1984 Ford Econoline van. ³ (D.Ct. Order, at 4-5).

The DEA did not forfeit all of the adopted items in bulk. Instead, the DEA forfeited each item separately, and it attempted to provide notice as to each forfeiture separately. Before the forfeiture of each item, the DEA published once a week for three consecutive weeks a notice of seizure and of its intent to forfeit Rodgers's property in the USA Today, a newspaper of general circulation in the judicial district in which the processing for forfeiture was brought. The DEA also mailed to Rodgers a written notice of the seizure, as detailed below, together with information on the applicable procedures Rodgers had to follow to claim an interest in the property.

DEA first mailed a seizure notice with regard to the $30,006.25 in United States currency, and it mailed that notice to Joe Rodgers, 4923 S. Yorktown # 38, Tulsa, Oklahoma, by certified mail. The post office attempted to deliver that notice on April 1, 1991 and again on April 6, 1991. These delivery attempts were unsuccessful and the letter was returned to the DEA unclaimed on April 17, 1991. The DEA administratively forfeited the $30,006.25 in United States currency on May 10, 1991.

The DEA next mailed a seizure notice with regard to the $1,951.00 in United States currency. The DEA again mailed its notice to The DEA also mailed seizure notices concerning the seized Corvettes to the Yorktown address. The post office attempted to deliver those notice letters on April 12, 1991 and April 17, 1991, but again each letter was returned to the DEA unclaimed on April 28, 1991. The DEA forfeited the Corvettes on May 24, 1991.

the Yorktown address, and the post office attempted to deliver that notice on April 11, 1991 and April 15, 1991. The notice was returned to the DEA unclaimed on April 26, 1991, and the DEA forfeited the $1,951.00 in United States currency on May 24, 1991.

Some three weeks after the post office returned to the DEA as unclaimed the notice letters concerning the first four items, the DEA mailed a seizure notice concerning the 1984 Econoline van to the Yorktown address. Not surprisingly, this notice also was returned unclaimed on June 1, 1991, after the post office unsuccessfully attempted to deliver the notice on May 16, 1991 and May 21, 1991. In addition, DEA mailed a notice to Joe Rodgers, 6650 N. Trenton, on May 20, 1991, but this letter was returned with the advisement that Rodgers had moved and left no forwarding address. The DEA forfeited the Econoline van on June 28, 1991.

DISCUSSION

I. Forfeiture Procedures Generally

The DEA forfeited the seized items on the ground that they were used or acquired as a result of a drug-related offense. See 21 U.S.C. § 881(a)(4) (1994) (allowing forfeiture of vehicles) and 21 U.S.C. § 881(a)(6) (1994) (allowing forfeiture of currency). Section 881 incorporates the forfeiture procedures provided in the Tariff Act of 1930, United States v. Woodall, 12 F.3d 791, 792 (8th Cir.1993) (citing 21 U.S.C. § 881(d)), which require the government to publish a notice of seizure and of its intent to forfeit seized property once a week for three consecutive weeks in a newspaper of general circulation in the judicial district in which the forfeiture proceedings is brought. 19 U.S.C. § 1607(a) (1994); 21 C.F.R. § 1316.75(a) (1996). In addition, the government must provide "[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. § 1607(a) (1994). Finally, the Constitution requires "notice 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." United States v. 51 Pieces of Real Property, Roswell, N.M., 17 F.3d 1306, 1316 (10th Cir.1994) (quoting Mullane, 339 U.S. at 314, 70 S.Ct. at 657). After adequate notice is given, and if no party files a claim asserting an interest in the property within twenty days of publication, the DEA must declare the property forfeited. United States v. Clark, 84 F.3d 378, 380 (10th Cir.1996) (citing 19 U.S.C. § 1609 (1994); 21 C.F.R. § 1316.77(b)).

Although Rodgers admits that he failed to file a claim asserting an interest in the seized property, Rodgers alleges that the DEA's attempts to provide him with notice of its intent to forfeit failed to satisfy statutory and due process requirements; and, accordingly, the DEA administrative forfeiture should be vacated. See Aero-Medical, Inc. v. United States, 23 F.3d 328, 331 (10th Cir.1994).

We have jurisdiction under 28 U.S.C. § 1331 to review whether DEA's administrative forfeiture satisfied statutory and due process requirements. Clark, 84 F.3d at 381. ⁴ Moreover, Rodgers' status as a criminal fugitive during DEA's forfeiture proceedings does not "disentitle" him from the right to pursue civil relief in this court. See Degen v. United States, 517 U.S. 820, ---- - ----, 116 S.Ct. 1777, 1780-83, 135 L.Ed.2d 102 (1996) (holding that a court in a civil forfeiture suit is not allowed to enter judgment against a claimant merely because he is a fugitive from a related criminal prosecution). ⁵

We review the district court's determination that the government employed means reasonably calculated to provide the claimant with actual notice for clear error. Clark, 84 F.3d at 381 (citing 51 Pieces of Real Property, 17 F.3d at 1316.).

II. DEA Compliance With Forfeiture Procedures

It is undisputed that the DEA's publications in USA Today satisfies the forfeiture statute's "notice by publication" requirement. The USA Today is a newspaper of general circulation, and the DEA published its notice once a week for three consecutive weeks. See 19 U.S.C. § 1607(a) (1994); 21 C.F.R. § 1316.75(a)(1996). Thus, the only issue we address is whether the DEA's attempts to give Rodgers actual notice were sufficient. We believe they were not. Rodgers maintained three different residences, and yet, the DEA only mailed seizure notices to two of those residences. Rodgers claims the DEA should have mailed him a seizure notice at the third residence and we agree.

For purposes of determining whether the government has made reasonable efforts to notify a claimant, we note that the government is not only chargeable with information it has within its possession but also with information it could have discovered by making reasonable efforts. In Clark we explained that "[w]hen the government can reasonably ascertain the name and address of an interested party, due process requires the government to send 'notice by mail or other means as certain to ensure actual notice.' " 84 F.3d at 380 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983)).

In this case, we charge the DEA with information concerning Rodgers provided in the local authorities' seizure records. Where property is initially seized by state authorities, and then turned over to the federal government for federal forfeiture of that property, it is reasonable to expect the federal government to obtain from the seizing authority whatever evidence it may have concerning the whereabouts of the defendant. Here, we believe that the record establishes that the DEA was aware of, or should reasonably have become aware of, three residences at which Rodgers kept his belongings.

First, Rodgers kept some...