Whiting v. U.S.

Decision Date31 July 2000
Docket NumberNo. 99-1141,99-1141
Citation231 F.3d 70
Parties(1st Cir. 2000) DARRYL WHITING, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee. Heard
CourtU.S. Court of Appeals — First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert E. Keeton, U.S. District Judge] [Copyrighted Material Omitted]

Darryl Whiting on brief pro se.

Elizabeth L. Prevett, Federal Defender Office, with whom Leo T. Sorokin was on brief for the Federal Defender Office, Amicus Curiae.

Richard L. Hoffman, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for the United States.

Before Boudin and Lipez, Circuit Judges, and Casellas,* District Judge.

BOUDIN, Circuit Judge.

This appeal raises the question of what is constitutionally adequate notice to a prisoner of civil proceedings to forfeit assets related to federal drug crimes. The story begins with the indictment, on December 11, 1990, of Darryl Whiting for a series of drug-related offenses. Less than a year later, on July 24, 1991, Whiting was convicted of cocaine distribution, 21 U.S.C. 841(a)(1) (1994), conducting a continuing criminal enterprise, id. 848, and money laundering, 18 U.S.C. 1956(a)(1) (1994). This court affirmed Whiting's conviction and sentence on appeal. United States v. Whiting, 28 F.3d 1296, 1312 (1st Cir. 1994).1

On December 12, 1990, the day after Whiting's indictment, the United States filed a civil complaint for forfeiture in rem of a piece of real property--the so-called Crown Social and Recreation Hall--that Whiting (and two others) owned at 48 Geneva Avenue in Roxbury, Massachusetts. Federal law authorizes forfeiture of real property that is used or intended to be used to commit or facilitate the commission of drug offenses. 21 U.S.C. 881(a)(7) (1994).

The district court directed that notice of the forfeiture proceeding be published in a local newspaper and that the complaint and related papers be served upon Whiting by certified mail at his home address and at the Deer Island House of Correction, a Massachusetts state facility where Whiting was then being held. Notice was published in The Boston Globe three times within the next thirty days. The government mailed notices as directed, but the certified mailing to Whiting's home was returned unopened; the government now concedes that the Deer Island mailing was also sent but not delivered, and eventually returned by the Marshals Service.

Whiting having failed to object to the forfeiture, the government on March 28, 1991, moved for entry of default as to the 48 Geneva Avenue property. See Fed. R. Civ. P. 55(a). Notice of the default was sent shortly thereafter to Whiting by certified mail at the Plymouth County House of Correction to which Whiting had been transferred from Deer Island on December 21, 1990. A copy of the government's default motion was also sent to Whiting's counsel in his criminal case.

At Whiting's arraignment in the criminal case on April 24, 1991, multiple references to the civil forfeiture action were made in Whiting's presence by the court, the government, and Whiting's own counsel. At the request of Whiting's attorney, the government re-sent the original complaint and related papers by certified mail to the Plymouth County House of Correction. Although the government received a return receipt card postmarked May 9, 1991, signed by a prison official, Whiting denies ever having received the mailing and while he admits he knew of the government's earlier motion for default and discussed it with his attorney, he says he thought that the default would be withdrawn until he had been served with a complaint and related papers.

Since Whiting took no action to challenge the default, a default judgment and order of forfeiture were entered against the property on July 8, 1991, during the course of Whiting's criminal trial. See Fed. R. Civ. P. 55(b). Many months later, on April 20, 1992, Whiting wrote to the U.S. Attorney who had handled the civil forfeiture proceeding, claiming to have seen a newspaper notice that the property was shortly to be auctioned. Whiting said that he had been "waiting for a date or notice from the court" to challenge the forfeiture and referred to a lawyer whom he had hired on the matter. Neither Whiting nor his lawyer took any further action, and the United States conveyed the property to purchasing mortgagees on October 14, 1992.

A second forfeiture proceeding is also at issue on this appeal. It concerns two gold and diamond rings allegedly belonging to Whiting that the Drug Enforcement Administration ("DEA") seized from Whiting's then-fiancee, Deirdre McGraw, on March 22, 1991. By statute, valuables obtained in exchange for, or traceable to, drug transactions are subject to forfeiture. 21 U.S.C. 881(a)(6) (1994). Because the value of the rings was thought to be $500,000 or less, DEA sought to forfeit the rings by administrative proceedings rather than through court process. 21 U.S.C. 881(d) (1994); 19 U.S.C. 1607(a), 1608, 1609 (1994); 21 C.F.R. 1316.75, 1316.77 (2000).

On June 3, 1991, DEA sent notice of both the seizure and proposed administrative forfeiture of the rings to Whiting by certified mail at his home address and at the Plymouth County House of Correction. The DEA separately mailed notice to McGraw. The notices sent to the separate home addresses of Whiting and McGraw were returned unopened, but DEA received a certified mail receipt card postmarked June 11, 1991, signed by the "mail officer" at the Plymouth County House of Correction. Following the certified mailings, DEA also published notice of the proposed forfeiture in USA Today on three occasions in June 1991. See 19 U.S.C. 1607(a) (1994); 21 C.F.R. 1316.75 (2000).

An affidavit later supplied by the mail officer who signed for Whiting's certified mailing said that, under the officer's routine procedure, receipt of that mailing should have produced an acknowledgment form signed by Whiting, which should then have been kept in the jail's records. However, the officer did not recollect the particular delivery to Whiting, nor could prison officials later find the form that would normally be signed by the inmate. The affiant added that the prison official who searched for the form speculated that "the form may have been lost or misplaced" when the Plymouth County House of Correction was relocated around June 1994.

The notice prescribed a July 2, 1991, deadline for contesting the administrative forfeiture, and also allowed thirty days from receipt of the notice to request remission or mitigation. When both deadlines had apparently expired without any objection, DEA, on July 22, 1991, declared the rings forfeited to the United States. See 19 U.S.C. 1609 (1994); 21 C.F.R. 1316.77 (2000). Nearly a year later, on June 9, 1992, Whiting wrote to the U.S. Attorney's Office in Boston, asking about the forfeiture status of the rings. In response, he was advised to make inquiry of a named DEA agent, but Whiting then waited three years until November 1995 to write to the agent asking for return of the rings. In the meantime, on November 25, 1992, the rings had been sold by the United States for $4,000.

This brings us to the proceedings in the district court that led directly to this appeal. On March 6, 1996, Whiting filed in the district court a pro se motion for return of property. See Fed. R. Crim. P. 41(e). The clerk's office in the district court apparently filed the motion as part of Whiting's then-pending habeas action, Whiting v. United States, Civ. A. No. 95-11885-REK, which the district court dismissed on October 24, 1996. When this court affirmed the denial of Whiting's habeas petition, it remanded the matter to the district court to consider Whiting's motion for return of property. Whiting v. United States, 215 F.3d 1313, 1998 WL 1281294, at *2 (1st Cir. 1998) (per curiam) (unpublished table decision).

Although the motion for return of property was originally addressed to the rings, Whiting moved after our remand to include in his demand the return of the 48 Geneva Avenue property, as well as listed personal property which he alleged to have been located at that premises (the government denies ever having seized such property). Whiting v. United States, 29 F. Supp. 2d 25, 27-28 (D. Mass. 1998). On November 30, 1998, the district court allowed the motion to amend the complaint but denied the motion for return of property as amended. Id. at 27, 31-32.

In its decision, the district court denied Whiting's motion for an evidentiary hearing on the matter, because there was no adequate proffer of specific, material evidence or other reason to believe that anything material would be adduced. Whiting, 29 F. Supp. 2d at 27-28. Then, in an orderly fashion, the court found that Whiting was precluded from attacking the forfeiture of the rings because he had had sufficient notice of the forfeiture and, independently, because his claim to the rings was barred by laches. Id. at 30-31. As to the 48 Geneva Avenue property, the court found that adequate notice had been given and, independently, that Whiting had had "notice in fact" of the forfeiture proceeding. Id. at 31-32.

Whiting now appeals from the district court's judgment, and we affirm. The basis for our decision is that Whiting received constitutionally adequate notice of both forfeitures because notice was given by certified mail properly addressed to him at the prison in which he was actually being held, and the forfeitures therefore rested upon valid judicial or administrative rulings. We reach and decide this constitutional issue only because the alternative grounds (actual notice and laches) given by the district court do not themselves suffice to decide the entire case. To explain why this is so, we begin with the alternative grounds adopted by the district court.

With respect to the 48 Geneva...

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