Opinion
CIVIL NO. 97-817 (JBS)
April 6, 1999
Mr. Willie Tamakloe, FCI Schuylkill, Plaintiff pro se.
Faith Hochberg, United States Attorney, by: Peter G. O'Malley, Assistant United States Attorney, for Defendant.
O P I N I O N
On March 27, 1997, plaintiff pro se, Willie Tamakloe, filed a Complaint in this Court seeking the return of property and money which defendant, the United States Customs Service, seized and administratively forfeited, plus any applicable interest. Plaintiff argues that though he was aware of the seizure itself, he did not receive notice of administrative forfeiture, and that because this constitutes a due process violation, he is entitled to a return of his property. Presently before the Court is a motion by defendant, the United States Customs Service, for summary judgment pursuant to Fed.R.Civ.P. 56. Defendant agrees that notice was not properly given, but argues that the proper remedy is not for the Court to automatically return plaintiff's property, but rather for this Court to determine whether the forfeiture itself was nonetheless valid. Defendant further argues that summary judgment for the defendant is appropriate because the forfeiture itself was clearly warranted. For the reasons stated herein, I will deny summary judgment for the defendant and instead enter judgment for the plaintiff.
I. BACKGROUND
On September 19 and 20, 1991, United States Customs Officials seized some of plaintiff's property in connection with plaintiff's arrest on drug charges and pursuant to search warrants obtained from both this Court and the Southern District of New York. This property included: $25,159.72 in United States currency, 129 Cedes from Ghana (valued at $172.00 in United States currency), 120 English pounds ($209.00 in United States currency), 125 dollars in notes from Singapore ($76.00), 29,000 francs from Africa ($102.00), $6,000 in Travelers checks, and $28,135 represented by a bank check in that amount drawn by the Banque Nationale De Paris, 200 Liberty Street, New York, New York payable to Desimone LTD by order of Willie Tamakloe.
A criminal complaint was filed against plaintiff, and after trial, plaintiff was convicted on a four count indictment of conspiracy to import in excess of 1 kilogram of heroin in the United States; importing in excess of 1 kilogram of heroin into the United States; conspiring to possess, with intent to distribute, in excess of 1 kilogram of heroin; and possessing with intent to distribute in excess of 1 kilogram of heroin. (O'Malley Decl. Ex. H, I.) Judge Thompson, who tried the criminal case, denied plaintiff's motion for a new trial. (O'Malley Decl. Ex. J.) Plaintiff is currently serving a twenty year prison sentence and was fined $20,000. (Id.) He has been in custody since his arrest on September 19, 1991. (Pl.'s Br. at 3.)
As stated in the Complaint and in plaintiff's opposition brief, and as defendant does not deny, defendant administratively forfeited plaintiff's seized property without plaintiff having received actual notice of the forfeiture. Though notices of pending administrative forfeiture were mailed to plaintiff's Marlton home, the defendant was aware that plaintiff was not at that address, but rather was in jail, under arrest based on charges that defendant had filed against him. Though legal notices were posted in the Philadelphia Daily News and in the U.S. Customshouse (See Complaint Exs. A-9 and A-10), plaintiff, who was in jail in northern New Jersey (Union County Jail in Elizabeth), plaintiff had no access to that newspaper or that customshouse, and thus, though he was aware of the original seizure, he received no notice of the forfeiture.
On March 27, 1997, plaintiff filed the instant Complaint seeking to recover the forfeited property because defendant violated his due process rights by failing to give notice of the forfeiture. Defendant now seeks summary judgment, arguing that while there was a due process violation, the overall forfeiture itself was valid. Defendant's argument for summary judgment is unavailing.
II. DISCUSSION
It is clear that defendant's failure to provide notice to the plaintiff of the pending administrative forfeiture violated plaintiff's due process rights. United States v. $184,505.01 in U.S. Currency, 72 F.3d 1160, 1163-1164 (3d Cir. 1995) (government is required by due process to at least attempt to serve the notice of forfeiture proceedings to plaintiff in prison when it knows he is in prison), cert. denied., 519 U.S. 807 (1996). The question is not whether his rights were violated, but, rather, what is the proper remedy for this infringement of his due process rights. The Third Circuit has not given instruction as to the proper remedy. When faced with the due process violation in $184,505,01 in U.S. Currency, the Third Circuit simply remanded for "further proceedings not inconsistent with this opinion." 72 F.3d at 1171. This Court, thus, must determine what that proper remedy is.
Defendant argues that the proper remedy is a decision on the merits of the forfeiture in the district court, citing Boero v. Drug Enforcement Admin., 111 F.3d 301 (2d Cir. 1997), and Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1103 (9th Cir. 1990), in which the Second and Ninth Circuits found that it was proper for the district court to hear the merits of forfeiture. However, not all courts are in agreement with the Second and Ninth Circuits that the plaintiff's complaint should be transformed into a judicial forfeiture proceeding. Some courts have found that the district court must set aside the declaration of forfeiture and either order the government to return the property or begin judicial forfeiture proceedings. See United States v. Volanty, 79 F.3d 86, 88 (8th Cir. 1996); United States v. Giraldo, 45 F.3d 509 (1st Cir. 1995). Others have simply directed the district court to vacate the administrative forfeiture without providing further instructions as to what should happen to the property. See Armendariz-Mata v. DEA, 82 F.3d 679, 683 (5th Cir.), cert. denied, 117 S.Ct. 317 (1996).
I decline to transform plaintiff's due process violation Complaint into defendant's judicial forfeiture proceeding. While it would be possible for this Court to review the merits of the forfeiture itself, forfeiture is a disfavored remedy, and the goal here should not be efficiency, but rather fairness. Here it is undisputed, as a matter of fact and law, that the plaintiff's Fifth Amendment Due Process Clause rights were violated when his property was forfeited without adequate notice to him so he could challenge the propriety of forfeiture. This Court's role is to give plaintiff the opportunity to challenge that forfeiture now, as if it was occurring in the first instance. In the first instance, such a challenge would come before the Customs Service itself in its administrative forfeiture proceedings, and that is the body that should first hear any challenge now. The proper remedy, then, as the First and Eight Circuits have noted, would be for this Court to vacate the entry of forfeiture and order defendant either to return plaintiff's property or begin forfeiture proceedings anew, this time giving plaintiff the opportunity to challenge such forfeiture.
It would appear that judgment should be entered for the plaintiff, such that the defendant should be ordered to either return the property or begin forfeiture proceedings. Though plaintiff did not formally cross-move for summary judgment, this Court may enter summary judgment for him nonetheless so long as the Court is assured that the original movant, the defendant, has had an adequate opportunity to show that there is a genuine issue and that the opponent, plaintiff, is not entitled to judgment as a matter of law. See 10a Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2720 (1998). See also Banks v. Lackawanna County Comm'rs, 931 F. Supp. 359, 363 n. 7 (M.D.Pa. 1996); Weil Ceramics Glass, Inc. v. Dash, 618 F. Supp. 700, 716 (D.N.J. 1985), rev'd in part, vacated in part on other grounds, 878 F.2d 659 (3d Cir. 1989); DeFelice v. Philadelphia Bd. of Educ., 306 F. Supp. 1345 ( E.D. Pa. 1969), aff'd per curiam, 432 F.2d 1358 (3d Cir. 1970). This Court's usual practice in such a situation would be to order the movant to show cause why summary judgment should not be entered for the nonmovant, so that the movant has an opportunity to show that there really is some genuine dispute in light of the Court's interpretation of applicable law, and so the movant is not surprised by procedural turnabout. In the instant case, however, though the parties obviously dispute the constitutionality of the forfeiture itself, it is undisputed that plaintiff's due process rights were violated. Defendant had the opportunity to argue that whether due process was violated was in dispute, and defendant specifically chose not to do so, conceding that the Third Circuit considers lack of notice under these circumstances to be a constitutional violation. It is only the appropriate remedy that is in dispute, and defendant fully briefed the applicable law on this subject, citing both to those courts which would convert the complaint to a judicial forfeiture and to those courts which would simply vacate entry of forfeiture.
Though no formal cross-motion was made, in his brief, plaintiff not only asks this Court to deny defendant's summary judgment motion, but also to order defendant to return his property, with interest as of September 19, 1991 (the date of seizure). (Pl.'s Br. at 18.)
It is clear that this court may enter declaratory relief upon plaintiff's claim, declaring that the defendant's administrative forfeiture of plaintiff's property without adequate notice to plaintiff was procedurally deficient because the defendant failed to comport with due process. The accompanying Order will contain this declaratory relief.
The appropriate remedy for lack of procedural due process is to afford to the plaintiff all process that is due in an administrative forfeiture, in accordance with the Giraldo and Volanty cases, supra. Thus, the defendant will be required to either return the property to plaintiff or to institute new forfeiture proceedings within ninety (90) days of today's date, including actual notice to Mr. Tamakloe and observance of all his procedural rights in the matter. If Mr. Tamakloe has not received actual notice of the new administrative forfeiture proceedings within ninety (90) days of today's date, he may petition this court for post-judgment relief including a final order to return the subject property to him.
III. CONCLUSION
For the foregoing reason, defendant's motion for summary judgment will be denied, and, because no reasonable factfinder could find that plaintiff's due process rights were not violated, this Court will enter summary judgment for the plaintiff, declaring that defendant's administrative forfeiture of plaintiff's property was in violation of plaintiff's procedural due process right to adequate notice and opportunity to be heard. The administrative forfeiture will be vacated, without prejudice to defendant's right to reinstitute such administrative forfeiture proceedings. The defendant shall be ordered to return the subject property to plaintiff unless, within 90 days hereof, it institutes an appropriate administrative forfeiture proceeding and gives actual notice of same to Mr. Tamakloe in strict observance of his due process rights.
ORDER
This matter having come before the Court upon defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56; and the Court having considered the parties' submissions; and for the reasons expressed in the Opinion of today's date;
IT IS this day of April 1999, hereby
ORDERED that defendant's motion for summary judgment be, and hereby is, DENIED; and it is further
ORDERED and DECLARED that the defendant's administrative forfeiture of plaintiff's property violated plaintiff's procedural due process right to adequate notice and opportunity to be heard; and it is further
ORDERED that summary judgment be, and hereby is, GRANTED for the plaintiff, vacating the administrative forfeiture without prejudice to defendant's right to reinstate a new administrative forfeiture proceeding; and it is further
ORDERED that defendant shall either return plaintiff's forfeited property or defendant shall commence forfeiture proceedings and deliver actual notice of same to plaintiff within ninety (90) days of today's date; and it is
ORDERED that plaintiff may petition this court for post-judgment relief including a final order requiring the defendant to return the subject property to him if, within ninety (90) days of today's date, he has not received actual notice of the new administrative forfeiture proceedings; and it is
ORDERED that the case is closed, without prejudice to plaintiff's right to reopen if the defendant fails to comply with this Order.