Forfeiture - Procedure – Notice of Seizure

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

Dusenberry v. United States, 534 U.S. 161 (2002)

The government satisfied its burden under the Due Process Clause by sending notice of seizure by certified mail to the prison where the defendant was incarcerated. The proper test is whether the notice was “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.”

Lucas v. United States, 775 F.3d 544 (2d Cir. 2015)

Pursuant to 18 U.S.C. § 982(e)(1), a person may move to reopen a forfeiture proceeding that was closed if the person can show that inadequate notice of the seizure and pending forfeiture was provided to the person.

United States v. Real Properties Locted at 7215 Longboat Drive, 750 F.3d 968 (8th Cir. 2014)

The government seized property that was titled in the name of an LLC. The government knew the LLC had dissolved and that its registered agent had died. The government did not make sufficient efforts to locate the registered agent’s estate to provide notice of the pending forfeiture. An attorney contacted the AUSA and informed the AUSA that he might be retained to represent the estate in the forfeiture proceeding. The government did not send notice to the attorney. The Eighth Circuit held that the letter from the attorney did not reflect “actual notice” of the forfeiture proceeding, because the lawyer did not acknowledge that he was actually representing the estate. The government failed to comply with Rule G’s notice requirement and thus the untimely filed claim would be given effect.

Nunley v. Department of Justice, 425 F.3d 1132 (8th Cir. 2005)

Notices sent to the defendant (who was in jail) and to his last known address were not sufficient to put him on notice of the government’s forfeiture proceedings.

Clymore v. United States, 164 F.3d 569 (10th Cir. 1999)

The government failed to provide adequate notice to the claimant of the pendency of the forfeiture proceeding. Prior to the claimant filing a Rule 41(e) motion, the statute of limitations for filing a forfeiture action expired. See 19 U.S.C. § 1621. The Tenth Circuit holds that the statute of limitations should be enforced in this situation. Note that this is a pre-CAFRA case.

United States v. Ritchie, 342 F.3d 903 (9th Cir. 2003)

When a letter providing personal notice of a forfeiture proceeding is returned undelivered, the DEA must make reasonable additional efforts to provide personal notice of the proceeding.

Small v. United States, 136 F.3d 1334 (D.C. Cir. 1998)

The defendant was arrested at Union Station in D.C. and $1,813.10 was seized from him. He was detained in the D.C. jail. A notice of seizure was sent to the defendant's home address; another notice was published in U.S.A. Today; and another notice was sent to the jail, but returned to the DEA undelivered. These attempts at notice were insufficient and the forfeitureproceeding would be reinstated. Sending a notice to the defendant's home, when the government knows the claimant is in jail is insufficient.

Krecioch v. United States, 221 F.3d 976 (7th Cir. 2000)

After the DEA learned that the defendant was in custody, sending notice of proposed forfeitures to his house was insufficient notice and violated his right to due process.

Polanco v. U.S. DEA, 158 F.3d 647 (2d Cir. 1998)

Six years after currency was seized from him, the defendant filed a lawsuit seeking the return of the money. The Second Circuit held that this type of action was governed by the six year statute of limitations found in 28 U.S.C. § 2401 for lawsuits against the United States. The accrual date was the date on which he learned the money was subject to forfeiture without sufficient notice. This was later than the date of seizure.