United States v. Gagliardi

Opinion

[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1078

UNITED STATES,

Appellee,

v.

JOHN P. GAGLIARDI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Lipez, Circuit Judge.

John P. Gagliardi on brief pro se. Donald K. Stern, United States Attorney, and Kevin P. McGrath, Assistant U.S. Attorney, on brief for appellee.

June 24, 1999

Per Curiam. Pro se claimant John Gagliardi (Gagliardi) appeals a district court order that summarily denied his post-conviction motion for the return of property pursuant to Fed. R. Crim. P. 41(e). In this case, the parties urge this court to decide an important question, i.e., whether an administrative declaration of forfeiture may survive a collateral due process attack absent proof that the incarcerated property owner actually received a notice of the forfeiture that was sent to him, at his place of incarceration, by certified mail. Two circuits have held that when the government has commenced a forfeiture proceeding while the property owner is incarcerated on related drug charges, the government must prove that it provided actual notice to the property owner or his criminal defense counsel in order for the forfeiture to survive such a collateral attack. See, e.g., Weng v. United States, 137 F.3d 709, 713-15 (2d Cir. 1998); United States v. Cupples, 112 F.3d 318, 320 (8th Cir. 1997); Bye v. United States, 105 F.3d 856, 857 (2d Cir. 1997)(per curiam); United States v. Woodall, 12 F.3d 791, 794-95 (8th Cir. 1993). In contrast, two other circuits have held that the certified mailing of a forfeiture notice to the facility at which the property owner is incarcerated satisfies due process even if the owner denies actual receipt. See United States v. Clark, 84 F.3d 378, 380-81 (10th Cir. 1996); United States v. Real Property, 135 F.3d 1312, 1316 (9th Cir. 1998). See also United States v. Small, 136 F.3d 1334, 1336 (D.C. Cir. 1998)(noting that "the Due Process Clause does not demand actual, successful notice, but it does require a reasonable effort to give such notice"). We recognize that the Ninth Circuit has cited United States v. One Urban Lot Located at One Street A-1, 885 F.2d 994, 998 (1st Cir. 1989), and that the Second Circuit has cited United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995)(per curiam), in support of their respective, opposing positions. But both of these cases presented facts that differ significantly from those with which we are now confronted. Indeed, this court has never before confronted the precise issue presented here. Nor do we think this an appropriate case in which to resolve it. Thus, we conclude that, although the district court should have acted more deliberately, the denial of relief was proper on this record for the reasons set forth below. I. Gagliardi was convicted after pleading guilty to conspiracy to possess with intent to distribute marijuana and related offenses, including a criminal forfeiture count. Under the terms of his plea agreement, Gagliardi agreed that the amount that was subject to criminal forfeiture exceeded two million dollars and that all of his assets were forfeitable. Notwithstanding Gagliardi's guilty plea, the government did not pursue an order of criminal forfeiture, apparently due to Gagliardi's limited financial resources. Five months after this court affirmed Gagliardi's conviction, Gagliardi filed a motion under Fed. R. Crim. P. 41(e) seeking the return of approximately $2600 that was seized from him at his arrest. The motion alleged that the money did not constitute the proceeds of narcotics or other illicit activity and lawfully belonged to Gagliardi. Gagliardi also asserted that he was entitled to the equitable return of the money because he had never received notice of a forfeiture. The government filed an opposition to Gagliardi's motion which alleged that the district court lacked jurisdiction because the money had been administratively forfeited after due notice to Gagliardi. In support of its assertions, the government submitted a "Computer Asset Program printout" which, according to the unsworn allegations of the Assistant U.S. Attorney, showed that a forfeiture notice had been sent to Gagliardi at the Plymouth County House of Corrections (PCHC) on December 12, 1994. The government also submitted a copy of the DEA's Declaration of Forfeiture. This simply announced that the DEA had declared the money forfeited on January 27, 1995, after notice had been issued in accordance with 19 U.S.C. 1607 and absent receipt of any claims to the funds. The government's opposition did not include any evidence which showed that the forfeiture notice mailed to Gagliardi had been received by anyone. Nor did it include proof that Gagliardi was indeed incarcerated at the PCHC when the forfeiture notice was issued. Nevertheless, before Gagliardi had sufficient time to reply, the district court entered a margin order that summarily denied his Rule 41(e) motion for the reasons stated in the government's opposition. Three days later, the court docketed Gagliardi's reply. Therein Gagliardi argued that the district court had jurisdiction because the government had failed to prove that he had received notice of the forfeiture, even though he did not deny that he was incarcerated at the PCHC when the notice was sent there. Gagliardi asked the district court either to direct the government to prove that he personally received notice of the forfeiture or to return the money to him. One week after filing that reply, Gagliardi filed a timely notice of appeal from the order denying his Rule 41(e) motion. After Gagliardi filed his notice of appeal, but before his appeal was docketed in this court, the government supplemented its opposition by filing an affidavit by Vicki L. Rashid, Acting Forfeiture Counsel of the DEA, in the district court. Attorney Rashid averred that, according to the DEA's file, on December 12, 1994, the DEA sent written forfeiture notices by certified mail to Gagliardi at the PCHC and at his former home address (i.e, 102 Wellesley Street, Medford, MA). Copies of the forfeiture notices and the signed return receipts evincing delivery of same were attached to Rashid's affidavit. However, the return receipts showed that on December 24, 1994, someone other than Gagliardi signed for the notice that was sent to the PCHC. On December 22, 1994, another unidentifiable individual with the apparent last name of "Gagliardi" signed for the forfeiture notice that was sent to Gagliardi's home. Attorney Rashid further averred that notices of the forfeiture and the procedures for filing a claim were published in USA Today on 12/21/94, 12/28/94, and 1/4/95 and that the DEA declared the money forfeited after the claim period expired without a response. Gagliardi filed nothing in response to Rashid's affidavit. II. On appeal, Gagliardi argues that the district court erred by denying his motion before he had a chance to reply to the government's opposition and that the order denying relief was unwarranted because there is a genuine issue of material fact as to whether he actually received notice of the forfeiture. In contrast, the government argues that its efforts to provide Gagliardi with notice satisfied due process and that any procedural error that the district court might have made was harmless. We agree that the district court erred procedurally. It is well established that district courts have jurisdiction to review collateral due process attacks on administrative forfeitures. Where criminal proceedings have concluded, a district court should treat a Rule 41(e) motion that mounts such an attack as a civil complaint for equitable relief from the forfeiture. See, e.g., United States v. Marolf, 1999 WL 198913 at *2, to be reported at 173 F.3d 1213, (9th Cir. 1999); Boero v. DEA, 111 F.3d 301, 303-05 & n. 1 (2d Cir. 1997); United States v. Rodgers, 108 F.3d 1247, 1250 & n. 4 (10th Cir. 1997); United States v. Giraldo, 45 F.3d at 511; United States v. Woodall, 12 F.3d at 793; United States v. Mosquera, 845 F.2d 1122, 1126 (1st Cir. 1988)(per curiam); Willis v. United States, 787 F.2d 1089, 1092-93 (7th Cir. 1986). In a similar case, United States v. Mosquera, 845 F.2d at 1125-26, this court held that the district court should not have summarily denied a prisoner's post-conviction motion for the return of property based only on the government's conclusory allegations that the prisoner received actual notice of the forfeiture, as evidenced by the fact that a petition for remission had been filed. Here, the government's original opposition and supporting documents contained little more than the sort of conclusory allegations held insufficient in Mosquera. Moreover, here, as in Mosquera, the district court did not wait for Gagliardi to file a response to the government's opposition before it denied relief. This was error. See, e.g., Viqueira v. First Bank, 140 F.3d 12, 16-17 (1st Cir. 1998)(citing Berrios v. Department of the Army, 884 F.2d 28, 33 (1st Cir. 1989)("Where the defendant has challenged the plaintiff's assertion of federal jurisdiction, under Rule 12(b)(1), the court should give the plaintiff an opportunity to present facts in support of his jurisdictional contention.")). At a minimum, the district court should have waited for the government to supplement its opposition with proof of the notice it alleged was sent to Gagliardi and for Gagliardi to have a reasonable time to reply. Nevertheless, having carefully reviewed Gagliardi's reply to the government's opposition, as well as his brief on appeal, we conclude that this procedural error was harmless. Even if we were to assume that notice, by certified mail, admittedly sent to and received at the institution at which the property owner was incarcerated, was constitutionally inadequate, Gagliardi is not entitled to relief on this record. In the context of his plea agreement, Gagliardi has admitted that all of his assets were forfeitable and that the total sum for which he was liable exceeded two million dollars. Apart from the alleged lack of notice, Gagliardi has utterly failed to state any grounds upon which he could contest this forfeiture on the merits. Even the Second Circuit has upheld a forfeiture under similar circumstances. See Adames v. United States, 171 F.3d 728, 732-33 (2d Cir. 1999)(affirming summary judgment for government despite fact that forfeiture was preceded by inadequate notice where claimant's plea allocution established currency's forfeitability). See also United States v. Dennino, 103 F.3d 82, 85-86 (10th Cir. 1996)(upholding forfeiture despite alleged due process violation where claimant had no basis to defeat forfeiture on the merits). Gagliardi's previous admissions, coupled with his failure to assert any grounds upon which to attack the forfeiture on the merits, persuade us that to upset the forfeiture now and put the government to its proof would be a useless exercise. The government need only refer to Gagliardi's plea agreement to prove the validity of the forfeiture. Thus, to paraphrase the Tenth Circuit, "[u]psetting the forfeiture because of the alleged procedural faults, when Mr. [Gagliardi] appears to have no basis for the return of the property once the faults are remedied in new proceedings, would serve no purpose other than to waste limited judicial resources." Dennino, 103 F.3d at 86. We decline to require such a waste. Thus, we conclude that the denial of relief was proper on this record, wholly apart from the notice issue that the district court implicitly resolved in the government's favor. See Dennino, 103 F.3d at 85, n. 3 (court of appeals may affirm for any reason supported by the record). Affirmed. See Local Rule 27.1.