Miller v. Drug Enforcement Administration , 566 F. App'x 395 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0360n.06
Case No. 12-6311
FILED
May 09, 2014
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
BILLY W. MILLER, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF TENNESSEE
D R U G E N F O R C E M E N T )
ADMINISTRATION, )
)
Defendant-Appellee.
Before: COLE and SUTTON, Circuit Judges; and CLELAND, District Judge.*
CLELAND, District Judge. Plaintiff Billy W. Miller seeks to set aside the completed
forfeiture of $182,064.35 in funds seized by Defendant Drug Enforcement Administration (“DEA”).
The relevant statute precludes relief where the claimant has actual notice of the seizure. Because
Plaintiff asserted facts in his pleadings revealing actual notice, the district court did not err in finding
that he in fact had notice of the seizure. We AFFIRM the judgment of the district court in all
respects.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 12-6311, Miller v. Drug Enforcement Administration
I. BACKGROUND1
On or about April 20, 2007, officers with the Jackson, Tennessee Police Department
commenced investigation of a theft of property from the Jackson Wellness Clinic. Sergeant Marla
Taylor, who was assigned to the case, took a report from the victim, the Plaintiff in this case. He
advised that a black Tournamax bag had been stolen. According to Miller, the bag contained a large
amount of cash, antique jewelry and coins, and credit cards. He identified the thieves as Bethany
April Thompson and Claude Allen Wells. (Page ID 134.)
Five days after the theft, Thompson and Wells were arrested in Oceanside, California and
the currency in their possession was seized. Over the next couple of days, Officer Taylor learned in
a series of phone calls with Detective Brian Bruce of the Oceanside Police Department that Bruce
planned to seize the money as drug proceeds. On May 7, 2007, the DEA office in San Diego,
California adopted the seizure and subsequently submitted a report to the office of DEA’s Forfeiture
Counsel, which accepted the case for administrative forfeiture. (Id.)
Within a few days of the arrest, Miller asked Taylor when his funds would be returned. She
passed on to him the information received from Bruce and advised Miller thusly: “[W]e would have
to wait. At this point in time it was, you know, evidence either of the crime committed here in
Jackson or the crime that occurred in California. That they would retain that evidence, and at some
point we would find out the disposition.” Taylor was informed by Bruce that the DEA would attempt
to seize the moneys, which would be shared with Oceanside. According to Taylor, final word from
1
Both parties relied on the district court’s well-stated facts, and we adopt them verbatim as
well.
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No. 12-6311, Miller v. Drug Enforcement Administration
Bruce that DEA would make a seizure of the funds was received by her and transmitted to Miller
within a month of the initial incident report. The report, which contained Plaintiff’s personal contact
information, was provided to the authorities in Oceanside. With respect to the seizure, Taylor
advised Miller that “whatever arrangements there were to be made would be made between him and
the DEA in California.” (Id. at Page ID 135.)
Miller spoke to Bruce directly by telephone. The Plaintiff testified at trial that the detective
called him to advise that the money had been located and that he was working on getting it returned
as soon as some paperwork was completed. He could not remember exactly when the conversation
occurred. Miller related that Bruce made no mention of a forfeiture proceeding and he was not made
aware of it until he was informed later by Sergeant Taylor. He recalled that she told him he would
get something from DEA and would have to sign for it, but nothing ever came. (Id.)
On May 31, 2007, DEA sent written notice of the seizure by certified mail, return receipt
requested, to Thompson at Post Office Box 11431, Jackson, Tennessee 38308-0123. The United
States Postal Service returned the notice stamped “Return to Sender – Unclaimed” on June 18, 2007.
DEA also sent written notice of the seizure to Thompson by certified mail, return receipt requested,
at the Vista Detention Facility, 325 South Melrose Drive, Vista, California 92083-6696 on May 31,
2007. On June 5, 2007, an individual accepted delivery of the notice. Notice of seizure was
published in the Wall Street Journal, a newspaper of general circulation in the Southern District of
California and the Western District of Tennessee, once a week for three successive Mondays: June
11, 18, and 25, 2007. On July 5, 2007, DEA sent written notice by certified mail, return receipt
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requested, to Wells at George Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego,
California 92158-0002. Delivery was accepted on July 9, 2007. (Id.)
The published and mailed notices explained the option of filing a claim with the DEA
Forfeiture Counsel in order to contest the forfeiture action in the United States District Court. They
advised that the deadline for filing a claim was August 9, 2007 or, if the mailed notice was not
received, July 26, 2007. The published notices also provided information concerning the option of
filing a petition for remission or mitigation of forfeiture. It is undisputed that no written notice of
the seizure was mailed to the Plaintiff. On August 21, 2007, after no properly executed claim for the
funds had been received, and after the time for filing a claim had expired, DEA declared the property
administratively forfeited pursuant to 19 U.S.C. §1609. (Id. at Page ID 136.)
II. STANDARD OF REVIEW
We review the district court’s factual findings for clear error, and its conclusions of law de
novo. See United States v. $677,660.00 in U.S. Currency, 513 F. App’x 531, 532, (6th Cir. 2013);
United States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005).
III. ANALYSIS
A. 18 U.S.C. § 983(e)
Plaintiff initiated this action under 18 U.S.C. § 983(e), which is “the exclusive remedy for
seeking to set aside a declaration of forfeiture under a civil forfeiture statute.” 18 U.S.C. §
983(e)(5). The statute provides:
(1) Any person entitled to written notice in any nonjudicial civil forfeiture
proceeding under a civil forfeiture statute who does not receive such notice may file
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No. 12-6311, Miller v. Drug Enforcement Administration
a motion to set aside a declaration of forfeiture with respect to that person's interest
in the property, which motion shall be granted if--
(A) the Government knew, or reasonably should have known, of the
moving party's interest and failed to take reasonable steps to provide
such party with notice; and
(B) the moving party did not know or have reason to know of the
seizure within sufficient time to file a timely claim.
Id. § 983(e). The statute thus provides that Plaintiff’s motion fails if either the Government did not
take reasonable steps to provide him with notice, despite knowing of his interest or Plaintiff knew
or should have known of the seizure within sufficient time to file a timely claim. Here, the district
court correctly found that Plaintiff, by his own admissions, had actual notice of the seizure of the
subject funds, which precludes any right to relief under § 983(e).
There is no reasonable dispute here that Plaintiff had actual notice of the seizure. Although
he testified at trial that he did not know of the possibility of seizure, the complaint indicates to the
contrary. (Page ID 7-8.) As the district court held, Plaintiff is bound by the factual allegations in
the complaint. See Hughes v. Vanderbilt Univ., 215 F.3d 543, 549 (6th Cir. 2000). Moreover, trial
testimony of Sergeant Taylor corroborated Plaintiff’s initial factual allegations that he was notified
that the currency was being seized as drug proceeds by May 2007, after the DEA adopted the seizure
and began the administrative forfeiture process. The district court’s findings to this end were not
clearly erroneous but were, instead, abundantly supported by the record. As the claim deadline was
July 26, 2007, Plaintiff knew or had reason to know “of the seizure within sufficient time to file a
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timely claim.” 18 U.S.C. § 983(e)(1)(B).2 The district court correctly denied his motion on this
basis.
B. Due Process
Plaintiff devotes the bulk of his appeal to arguing that publication of the seizure in the Wall
Street Journal was insufficient under the facts of this case to satisfy the Due Process Clause of the
United States Constitution. Having found Plaintiff does not have a remedy under § 983(e), to accept
Plaintiff’s argument we would have to find he has an independent and alternative entitlement to
relief under the Due Process clause. It might be an interesting academic exercise to think about how
this argument squares with the language in § 983(e)(5) (providing the exclusive remedy for setting
aside a declaration of forfeiture). But that exercise would be futile. Plaintiff did not bring a Due
Process claim, but only a claim under § 983(e). Plaintiff did not seek to amend his complaint, nor
was there any mention of Due Process in the final pretrial order. Rather, on the day of trial, Plaintiff
attempted to inject a Due Process clause claim. That avenue of complaint amendment –or claim
insertion– was not open to him under any reading of Federal Rule of Civil Procedure 15. No Due
Process claim is properly presented.
IV. CONCLUSION
We AFFIRM.
2
Under the plain language of the statute, it is irrelevant whether Plaintiff had actual notice of
the forfeiture proceedings, and his attempt to so argue is misguided. It is only notice of the seizure that
is controlling.
6