United States v. Rodgers ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 11 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-5205
JOE EARL RODGERS,
Defendant-Appellant.
Appeal from the United States District Court
for the N.D. Okla.
(D.C. No. 91-CR-23-E)
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.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause therefore is ordered
submitted without oral argument.
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 (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’
1
The district court granted appellant’s request to proceed in forma pauperis on
appeal. Appellant should note that because this appeal was filed after April 26, 1996,
the recently enacted Prison Litigation Reform Act of 1995 (“PLRA”) is applicable.
Thus, petitioner will be assessed for his filing fee in accordance with the partial
payment plan described in § 804(a) of PLRA. See PLRA § 804(a), 28 U.S.C.A.
§ 1915(b) (West Supp. 3 1996).
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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
2
When local authorities voluntarily deliver seized property to the DEA, the DEA
is said to “adopt” the property. 21 U.S.C. § 881 (1994 & Supp. 1996) grants the DEA
jurisdiction to forfeit adopted property. See United States v. Woodall, 12 F.3d 791, 794
n.2 (8th Cir. 1993).
3
The non-adopted items were forfeited by Pawnee and Tulsa County authorities
pursuant to Oklahoma forfeiture procedures. Those forfeitures are not before us.
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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 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.
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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.
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
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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)). 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
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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, 116 S.Ct. 1777, 1780-83 (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.).
Although Rodgers brought his motion under Fed. R. Crim. P. 41(e), we have
4
held that “‘[w]here criminal proceedings against the movant have already been
completed, a district court should treat a Rule 41(e) motion as a civil complaint [under
28 U.S.C. § 1331].’” Clark, 84 F.3d at 381 (quoting Onwubiko v. United States, 969
F.2d 1392, 1397 (2d Cir. 1992)).
5
Rodgers argues that his status as a state fugitive should not bear on his rights
in a federal proceeding. However, because Degen provides that even federal fugitives
have rights in civil forfeiture proceedings, we need not address whether Rodgers was a
state or federal fugitive.
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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 (1983)).
In this case, we charge the DEA with information concerning Rodgers
provided in the local authorities’ seizure records. Where property is initially
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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 belongings at 4923 Yorktown #38, Tulsa, OK, an
apartment apparently leased by an indicted co-conspirator, Donald Lee Rogers,
located above a night club in Tulsa which Rodgers used to own. The DEA
concedes knowledge of the Yorktown address. The DEA mailed several notice
letters to the Yorktown apartment, and the $30,006.25 in United States currency
was seized from that address.
Second, Rodgers kept a cabin at 6650 N. Trenton, Tulsa, Oklahoma. The
record indicates that the DEA also knew of the Trenton address because it mailed
one notice letter to that address pertaining to the 1984 Econoline van. In
addition, the list of seized items made by local law enforcement includes an
electric bill receipt mailed to Joe Rodgers, 6650 N. Trenton, an automobile
insurance form mailed to Joe Rodgers, 6650 N. Trenton, and a cellular phone
application filled out under an apparently assumed name, Kenny Rodgers, 6650 N.
Trenton.
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However, the strongest evidence in the record suggests that Rodgers
maintained his primary residence at a house owned by his mother in Terlton,
Oklahoma, a town situated on the outskirts of Tulsa, in Pawnee County,
Oklahoma. Inexplicably, the DEA never sent a notice letter to Rodgers at the
Terlton address, although the record reveals that the DEA was aware of the
Terlton address. The 1984 Econoline van was seized from Terlton and the
“Notice of Seizure” the DEA mailed to the Trenton and Yorktown addresses
indicates as much by listing “Terlton” as the “Seizure Place.” Second, the list of
items seized at the Terlton address by local law enforcement officers includes a
water bill and a past due notice mailed to Joe Rodgers, Rt. 1, Box 267, Terlton; a
collection of thirty-five bills and letters addressed to Joe Rodgers, Terlton; and a
“paper license tag” 6 for the Econoline van issued to Joe Rodgers, Terlton.
Finally, the United States describes Joe Rodgers’ Terlton residence as “the
residence of Joe Rodgers” in its brief (Govt. Brief, at 4; Govt. Ex. 27 --
“Application for Order of Seizure”); the Pawnee County District Attorney
described the Terlton address as “the Joe Rodgers residence” in state forfeiture
proceedings, (Govt. Ex 27 -- “Application for Order of Seizure”); and, in an
affidavit prepared for those proceedings, the Undersheriff of Pawnee County
6
It is not clear from the record what a “paper license tag” is. Presumably, it is a
temporary form of vehicle registration.
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described the Terlton address as “under the control and maintained as residence
by one Joe Rodgers.” (Id.) 7
We recognize that in today’s transient society the government often will
have difficulty determining where to mail its notice letters. We believe, however,
there are several factors to which the government can look in deciding whether to
mail its notice letters to a particular address. Factors to consider include: (1)
whether there is physical evidence linking the claimant to the address, such as the
storage of the claimant’s personalty; (2) whether there are other indicia of
residency, such as the receipt of mail, the listing of a phone number, or the
payment of utilities; (3) whether the claimant has a real property interest in the
property represented by the address, either a leasehold or ownership interest; (4)
whether there is any direct evidence linking the claimant to the address, such as
informant testimony or eyewitness observation; (5) whether there is evidence
suggesting that a notice letter mailed to the address will be forwarded to the
claimant; and (6) whether there are alternative methods of providing actual notice
7
Although neither the government, the district attorney, nor the undersheriff
specifically mentioned “Terlton,” it is clear from the record that the residence to which
they refer is the Terlton residence. The United States refers to the residence as the one
from which certain firearms were seized, and the district attorney notes that that
residence is located in Pawnee County. (Govt. Exhibit #27). The Undersheriff provides
a more precise description by noting that the “residence [is] located in Pawnee County.
Section 28, Township 20, Range 8, W1/2 - E1/2 -W1/2 - N1/4.” (Govt. Exhibit #27).
We take judicial notice of the fact that Terlton is in Pawnee County, whereas Rodgers’
two other addresses are in Tulsa County.
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that may be available to the government. These factors are neither exhaustive nor
mandatory; however, they serve as guideposts in a murky terrain.
Applying the factors described above, we believe that the DEA acted
unreasonably when it failed to mail a notice letter to Rodgers at his Terlton
address. First, there was evidence suggesting that Rodgers stored personalty at
the Terlton address. Specifically, Rodgers’ Econoline van and several of his guns
were seized from there. Second, Rodgers paid the utilities for the Terlton address
and received mail there. Third, both the DEA and the local seizing authority have
acknowledged in various of their papers that Rodgers maintained a residence at
Terlton.
We recognize that Rodgers’ Tulsa addresses also satisfied some of the
factors discussed above; however, the Terlton address was the most reasonable
address to which to mail a notice letter. The government primarily relied on its
mailings to the Yorktown apartment to give Rodgers notice, but the only evidence
in the record which suggests that Rodgers once lived at the Yorktown apartment
is the fact that some of his possessions were seized from there. The apartment
was apparently leased by one of Rodgers’ employees and there is no indication
that Rodgers paid utilities for the Yorktown apartment or that he received mail
there.
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Moreover, even assuming that the DEA properly sent notice letters to
Rodgers’ Tulsa addresses, those notice letters were all returned as undelivered,
thereby informing the DEA that they were not adequate to provide actual notice.
As we made clear in Aero-Medical, Inc. v. United States, 23 F.3d 328 (10th Cir.
1994), the DEA must take reasonable steps to locate a civil claimant when its
initial mailings are returned unclaimed.
In Aero-Medical, the DEA seized an airplane allegedly used in connection
with drug distribution activities and then forfeited that airplane after no one
claimed an interest in it. Id. at 329. The DEA had published notice for three
consecutive weeks in USA Today and it mailed a notice letter to the claimant at
his business address, as kept in FAA records. The notice letter was returned with
the advisement that claimant has moved and left no forwarding address. Id. In
addition, DEA mailed notice to the home of the claimant’s predecessor in interest,
but that notice was also returned unclaimed.
We vacated the DEA’s administrative forfeiture after determining that the
government had not employed means reasonably calculated to provide the
claimant actual notice of the proceedings. Id. at 331. We noted that “[t]he DEA
was not only aware that the [business] address was not a current business address
for plaintiff, but was also aware of the identity of plaintiff’s registered agent.” Id.
at 330. Moreover, “[p]laintiff’s current address was easily ascertainable, not
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requiring extra inquiry, investigation, or effort, and an additional notice attempt
would not have placed an undue burden on the DEA.” Id. at 330-331 (citing
Schroeder v. City of New York, 371 U.S. 208, 212-13 (1962)).
Similarly in this case, the DEA was aware that the Yorktown address was
not being used by Rodgers when it mailed its notice letters there. In its brief, the
government does not dispute that it knew the Yorktown address was invalid; it
only claims that it had no other address to which it could have mailed a notice
letter. (Govt. Brief, at 8). The record reveals, however, that the DEA did have
Rodgers’ Terlton address, or at least that “[Rodgers’ Terlton] address was easily
ascertainable, not requiring extra inquiry, investigation, or effort, and an
additional notice attempt would not have placed an undue burden on the DEA.”
Aero-Medical, 23 F.3d at 330-331. We hold that it was unacceptable for the DEA
to rely upon notice by publication while failing to use the information it
possessed, or should have possessed, from the beginning of the forfeiture process
to notify Rodgers. See Id. at 331(finding it unacceptable for the DEA to rely
upon notice by publication while failing to use information it possessed to notify
claimant) (citing Mennonite Bd. of Missions, 462 U.S. at 800); see also Woodall,
12 F.3d at 794-95 (vacating a DEA administrative forfeiture where the
government knew the claimant’s current address, but mailed notice letters to other
invalid addresses).
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We recognize that Rodgers’ fugitive status is also a factor to be considered
in determining what notification steps are reasonable. However, the DEA cannot
rely upon a claimant’s fugitive status as an excuse for failure to give notice that
might reasonably result in actual notice to the fugitive. The Supreme Court has
determined that a criminal fugitive has the right to participate in civil forfeiture
proceedings, see Degen, 116 S.Ct. at 1780-83, and the government threatens to
eviscerate that right through the back door when it provides inadequate
notification to fugitives. Although here there is the possibility, because of
Rodgers’ fugitive status, that a notice mailed to the Terlton address might also
have been returned, there are adequate indicia that Rodgers had been using the
Terlton address as a residence. On this record, it was unreasonable not to attempt
to give notice to Rodgers at the Terlton address.
Our holding today is consistent with our decisions in United States v.
Clark, 84 F.3d 378 (10th Cir. 1996) and United States v. 51 Pieces of Real
Property, Roswell, N.M., 17 F.3d 1306 (10th Cir. 1994). In Clark, we upheld an
administrative forfeiture where the FBI sent by return-receipt, certified mail, a
notice letter to the claimant at his address in jail. 84 F.3d at 381. Although the
letter was delivered to the jail, the claimant claimed he should have been served
personally because “‘most of the time a certified letter is never received by the
person who is incarcerated.’” Id. (quoting claimant) (internal punctuation
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omitted). We held that the claimant had “not shown the sort of exceptional
circumstances that would have required the FBI to employ a means other than
certified mail.” Id.In this case, Rodgers is not asserting that the DEA should have employed
means other than certified mail; he is only claiming that the DEA should have
mailed its certified letter to a valid address when it had within its possession
information concerning that address. Moreover, the DEA’s mailings to other
addresses were returned unclaimed, whereas the FBI’s mailings in Clark were
successfully delivered. Thus, unlike the government in Clark, the DEA in this
case knew that Rodgers did not receive notice of the pending forfeitures.
In 51 Pieces of Real Property, the government mailed a notice letter to the
claimant in care of a third party at an invalid address in LaJolla, California, and it
also mailed a notice letter to the claimant’s alter-ego at another address. 17 F.3d
at 1316-17. We upheld the forfeiture because although the letter mailed to the
LaJolla address was returned unclaimed, the letter mailed to the claimant’s alter-
ego was successfully delivered. We noted that had the government only sent
notice to the LaJolla address, “we might be inclined to agree with [the claimant]
that the government’s actions were not reasonably calculated to give [the
claimant] actual notice of the forfeiture proceedings.” Id. at 1317. In this case,
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the government only sent notices to addresses determined to be invalid, and thus,
we confront this factual scenario.
With regard to every seized item except the van, the government concedes
that it mailed notices to an address at which it knew Rodgers could not be
reached. Thus, Aero-Medical directly addressed Rodgers’ claim as to the United
States currency and the Corvettes when it held “[i]t is unreasonable for the
government to ignore information in its possession and deliberately mail notice
to an invalid address.” 23 F.3d at 330 (citing Robinson v. Hanrahan, 409 U.S. 38,
40 (1972) (per curiam) (finding a Mullane violation where the government mailed
notice of a forfeiture proceeding to the claimant’s parent’s address when the
government knew the claimant was not at the address, and knew he could not get
to that address because of his incarceration)); accord Torres v. $36,256.80 U.S.
Currency, 25 F.3d 1154, 1161 (2d Cir. 1994).
Whether the government took reasonable efforts to give notice of the van’s
seizure and pending forfeiture is more complicated because in addition to mailing
notice letters to the Yorktown address, an address the DEA knew was invalid, the
government also mailed a notice letter to Joe Rodgers, 6650 N. Trenton. The
record does not reveal whether the government knew that 6650 N. Trenton was an
invalid address when it mailed a notice letter there. However, the government
certainly knew the Trenton address was invalid when the letter was returned with
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the advisement that Rodgers had moved, and we believe “[i]t was unreasonable
for the DEA to ignore its discovery that [Rodgers] had not received the original
mailed notice.” Montgomery v. Scott, 802 F. Supp. 930, 936 (W.D.N.Y. 1992).
“[A]fter the DEA discovered that [Rodgers] had not received the notice it
sent . . ., it should have taken additional steps to notify him,” id., such as mailing
a notice letter to his Terlton address. See also Torres, 25 F.3d at 1161 (2d Cir.
1994) (vacating an administrative forfeiture where the mailed notice was returned
undelivered, where the government knew the claimant was in government
custody, and where the government took no efforts to locate the claimant). In this
case, the Econoline van was seized from the Terlton address, the DEA knew
Rodgers maintained a residence there, and the DEA’s mailings to other addresses
were returned undelivered; thus, it was unreasonable for the DEA not to mail a
notice letter concerning the seizure of the Econoline van to the Terlton address.
Finally, the government does not dispute Rodgers’ claim that he did not
have actual notice of the forfeiture proceedings. This fact distinguishes Rodgers
from the claimant in 51 Pieces of Real Property, who “never denied receiving
actual notice of the forfeiture proceedings and of the steps it should take to
defend against those proceedings,” 17 F.3d at 1317, but only “argued that the
government did not send notice to it at the proper address.” Id.; see also Sarit v.
United States Drug Enforcement Admin., 987 F.2d 10, 15 n.3 (1st Cir.), cert
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denied, 510 U.S. 888 (1993) (noting that the claimant had actual notice of the
forfeiture proceedings, notwithstanding the claim that the DEA did not use
reasonable efforts to give the claimant notice, in upholding an administrative
forfeiture).
CONCLUSION
Because we find it “unacceptable for the DEA to rely upon notice by
publication while failing to use the information it possessed from the beginning of
the forfeiture process to notify plaintiff,” Aero-Medical, 23 F.3d at 331, we
REVERSE the judgment of the district court and REMAND the case with
instructions to vacate the DEA administrative forfeitures.
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