United States v. Giraldo

Opinion

USCA1 Opinion

January 19, 1995  UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 94-1454

                                    UNITED STATES,
                                      Appellee,

                                          v.

                                   JAMES GIRALDO,
                                Defendant, Appellant.

____________________

ERRATA SHEET

This opinion of  this court  issued on January  19, 1995  is
          amended as follows:

               On  page 4, line 20,  replace the word  "know" with the word
          "known."



UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 94-1454

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    JAMES GIRALDO,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ____________________

            James Giraldo, on motion.
            _____________

____________________
                                   January 19, 1995
                                 ____________________



Per Curiam.    Appellant James Giraldo appeals from
                      __________

            the denial by the district court of his motion for the return

            of property seized by the United States Customs Service.

                                          I.
                                          _

                      Giraldo  was  stopped  for  inspection  by  Customs

            officials at  the Luis  Munoz Marin International  Airport in

            Puerto  Rico in February  1993.  He  had arrived on  a flight

            from Aruba,  N.A.   An  x-ray,  to which  Giraldo  consented,

            showed  bulges  in  his intestines.    He  then  was given  a

            laxative and expelled  about 50  pellets of heroin.   He  was

            charged with one  count of possessing heroin with  the intent

            to  distribute it in violation  of 21 U.S.C.    841(a)(1) and

            one count  of importing heroin into the  Customs Territory of

            the United States from  Colombia in violation of 21  U.S.C.  

            952(a).   The court appointed  a Federal  Public Defender  to

            represent Giraldo.  On March 31, 1993, Giraldo pleaded guilty

            to  both  counts.   On  June  28,  1993,  the district  court

            sentenced him  to concurrent terms of  57 months imprisonment

            and four years of supervised release.

                      Almost one  year later,  on March 1,  1994, Giraldo

            filed a motion for the return of property under Fed. R. Crim.

            P.  41(e).1   He claimed  that when  he was  arrested at  the

                                
            ____________________

            1.  Rule 41(e) provides that  "[a] person aggrieved by .  . .
            the deprivation of property  may move the district  court for
            the  district in which the property was seized for the return
            of the property on the ground that such person is entitled to
            lawful possession of the property."

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airport,  government  agents seized  $2,126 in  United States

            currency and about $60,000 in Colombian pesos (the equivalent

            of about $179 in United States dollars).  Giraldo argued that

            his Fourth Amendment rights had been violated by the  seizure

            and that the currency was not  related to drug activity.   He

            also  asserted  that the  government  had  not commenced  any

            forfeiture  proceedings  and that,  as  a  result, the  money

            should be returned to him.

                      The government  responded that the  Customs Service

            had,   in  fact,   initiated  an   administrative  forfeiture

            proceeding  concerning   the  money.      According  to   the

            government,  notice of  this  proceeding had  been mailed  to

            Giraldo  in February  and December 1993  and returned  by the

            United States Post Office  to the Service.  When  Giraldo did

            not respond  in accordance with  the procedures set  forth in

            the  letter  of December  1993,  the money  was  forfeited in

            January 1994.  Therefore,  the government argued, Giraldo was

            prevented from pursuing any judicial remedies.

                      Giraldo filed  a rebuttal  in which he  pointed out

            that he  had  been incarcerated  in  December 1993  when  the

            letter  was  mailed  and   that  the  government  knew  this;

            nonetheless, the Customs Service sent the letter to Giraldo's

            home address  in Flushing, New  York.  Having  never received
            ____ _______

            notice of  the administrative forfeiture,  Giraldo maintained

            that he had not had a meaningful opportunity to object to the

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forfeiture.  Further, Giraldo averred, the district court had

            "ancillary" jurisdiction  to  consider his  motion and  could

            treat it as a civil equitable action.

                      The district denied Giraldo's motion by endorsement

            on March 24, 1994.  This appeal ensued.

                                         II.
                                         __

                      In 21  U.S.C.    881(a), Congress has  provided for

            the  civil  forfeiture of  property  or  money "furnished  or

            intended  to be  furnished by  any person  in exchange  for a

            controlled  substance in  violation  of this  subchapter, all

            proceeds traceable to such an exchange,  and all moneys . . .

            used  or intended to be  used to facilitate  any violation of

            this subchapter  . . . ."   Id.   881(a)(6).   Section 881(d)
                                        ___

            states  that   the  seizure  of   such  property  is   to  be

            accomplished through the application  of the customs laws, 19

            U.S.C.   1600 et seq.

                      These laws provide that property worth $500,000  or

            less is subject to administrative forfeiture without judicial

            involvement.  19 U.S.C.    1607.  The  administrative process

            requires  the government to  publish notice of  its intent to

            forfeit  the property once a week for three weeks and to send

            written notice to any party known  to have an interest in the

            property.   Id.   1607(a);  21 C.F.R.   1316.75.   A claimant
                        ___

            then has  20 days after the first publication to file a claim

            and  a cost bond of  not less than  $250.  19  U.S.C.   1608.

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The filing of the claim and the bond stops the administrative

            process  and requires the  seizing agency to  hand the matter

            over  to the United States Attorney for the commencement of a

            judicial forfeiture proceeding.   Id.;  see also 21  C.F.R.  
                                              ___   ___ ____

            1316.76(b).  A claimaint's failure to follow these procedures

            results in a declaration of forfeiture by the  seizing agency

            and  the vesting of title in the  United States.  19 U.S.C.  

            1609.  This declaration has the same effect as a final decree

            and  order of  forfeiture entered  in a  judicial proceeding.

            Id.
            ___

                      Notwithstanding  the  above,  district courts  have

            jurisdiction to entertain collateral  due process attacks  on

            administrative  forfeitures.   United States  v. Woodall,  12
                                           _____________     _______

            F.3d  791, 793  (8th  Cir. 1993)  ("the  federal courts  have

            universally   upheld  jurisdiction   to  review   whether  an

            administrative forfeiture satisfied statutory and due process

            requirements").

                      Whereas  most  challenges  to  forfeiture
                      would  be  foreclosed  by  a  plaintiffs'
                      [sic]  failure  to utilize  the mechanism
                      for obtaining judicial relief provided in
                      the  forfeiture statute  and regulations,
                      courts have entertained challenges to the
                      adequacy  of  notice, reasoning  that the
                      mechanism is not available to a plaintiff
                      who  is  not  properly  notified  of  the
                      pending forfeiture.

            Sarit v. United States Drug Enforcement  Admin., 987 F.2d 10,
            _____    ______________________________________

            17 (1st  Cir.) (citations  omitted), cert. denied,  114 S.Ct.
                                                 ____________

            241 (1993).

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We  have  indicated  that  such challenges  may  be

            pursued in a civil action under 28 U.S.C.   1331.  See United
                                                               ___ ______

            States  v. Mosquera, 845 F.2d 1122, 1126 (1st Cir. 1988) (per
            ______     ________

            curiam).   See also Marshall Leasing, Inc.  v. United States,
                       ___ ____ ______________________     _____________

            893 F.2d  1096, 1102-03 (9th  Cir. 1990) (district  court had

            jurisdiction over  due process  attack on forfeiture  under  

            1331); Willis v. United States, 787 F.2d 1089, 1093 (7th Cir.
                   ______    _____________

            1986)  (general federal question  subject matter jurisdiction

            exists over constitutional challenge to forfeiture), cited in
                                                                 _____ __

            Sarit,  987 F.2d  at 17.   The fact  that Giraldo  termed his
            _____

            motion as one under  Rule 41(e) does not defeat  the district

            court's  jurisdiction.   "Where criminal  proceedings against

            the  movant have  already  been completed,  a district  court

            should  treat a  rule  41(e) motion  as  a civil  complaint."

            Onwubiko  v. United  States,  969 F.2d  1392,  1397 (2d  Cir.
            ________     ______________

            1992).  See also  United States v. Martinson, 809  F.2d 1364,
                    ___ ____  _____________    _________

            1366-67  (9th Cir.  1987) (motions  to return  property filed

            under Rule 41(e) are treated as "civil equitable proceedings"

            when criminal  proceedings have been completed); cf. Woodall,
                                                             ___ _______

            12 F.3d at 794 n. 1 (once criminal  proceedings have ended, a

            pleading  by a  pro se  plaintiff which is  styled as  a Rule
                            ___ __

            41(e)  motion should  be  liberally construed  as seeking  to

            invoke the proper remedy).

                      In  this situation,  due  process requires  "notice

            reasonably   calculated,  under  all  the  circumstances,  to

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apprise interested parties of the pendency  of the action and

            afford them  an  opportunity to  present  their  objections."

            Mullane  v. Central Hanover Bank  & Trust Co.,  339 U.S. 306,
            _______     _________________________________

            314 (1950).

                      [I]f the government  is incarcerating  or
                      prosecuting  the  property owner  when it
                      elects to impose the additional burden of
                      defending   a    forfeiture   proceeding,
                      fundamental fairness surely requires that
                      either  the  defendant  or   his  counsel
                      receive  actual  notice  of the  agency's
                      intent  to  forfeit  in  time  to  decide
                      whether to  compel the agency  to proceed
                      by judicial condemnation.

            Woodall,  12 F.3d at 794-95.   See Robinson  v. Hanrahan, 409
            _______                        ___ ________     ________

            U.S.  38,   40  (1972)  (per  curiam)   (the  state  violated

            defendant's right  to  due process  by  mailing a  notice  of

            forfeiture  to defendant's home when  it knew that  he was in

            jail).  Thus, where a claimant is "residing at a place of the

            government's choosing," the seizing agency must take steps to

            locate  the claimant in order to satisfy due process.  Torres
                                                                   ______

            v. $36,256.80 United States Currency, 25 F.3d 1154, 1161  (2d
               _________________________________

            Cir.  1994) (a "simple call"  to the Bureau  of Prisons often

            suffices  to determine where a claimant is serving his or her

            sentence).

                                         III.
                                         ___

                      Although the record now before this court indicates

            that Giraldo did not receive constitutionally adequate notice

            of  the administrative forfeiture, we cannot be sure.  If the

            forfeiture is valid, Giraldo has waived judicial challenge to

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it  by failing  to file a  timely claim  and post  bond.  See
                                                                      ___

            Woodall,  12 F.3d at  795.  If  the notice turns  out to have
            _______

            been inadequate, the forfeiture  is void.  Id.   The district
                                                       ___

            court then  must set aside the declaration  of forfeiture and

            order the Customs Service  to return the money to  Giraldo or

            to  begin judicial forfeiture in the district court.  See id.
                                                                  ___ ___

            In  this latter instance, Giraldo need not post the $250 bond

            if  the district  court  determines that  the government  has

            seized all of his money.  See Onwubiko, 969 F.2d at 1399.
                                      ___ ________

                      Given  our  disposition  of  the  matter,  we  deny
                                                                     ____

            Giraldo's motion for the appointment of counsel.  However, he

            is  free to  request such  an appointment  from the  district

            court.   See  Torres,  25 F.3d  at  1161 (court  ordered  the
                     ___  ______

            appointment  of pro  bono counsel  based on  the presence  of

            complex issues  of law); Martinson,  809 F.2d at  1370 (court
                                     _________

            permitted  public defender to  continue to represent claimant

            on a motion for the return of property holding that it was an

            "ancillary" proceeding for  purposes of the  Criminal Justice

            Act, 18 U.S.C.   3006A(c)); United States v. 1604 Oceola, 803
                                        _____________    ___________

            F.Supp. 1194,  1196 (N.D.Tex. 1992) (listing  sources for the

            authority to appoint counsel in forfeiture actions).

                      We therefore summarily reverse the  judgment of the
                                             _______

            district court,  see Local Rule  27.1, and remand  the matter
                             ___

            for further proceedings.

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