                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2000

United States v. One Toshiba Color Television
Precedential or Non-Precedential:

Docket 98-3578 & 983579




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Recommended Citation
"United States v. One Toshiba Color Television" (2000). 2000 Decisions. Paper 109.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/109


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Filed May 24, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 98-3578 and 98-3579

UNITED STATES OF AMERICA

v.

ONE TOSHIBA COLOR TELEVISION; TWO ANSWERING
MACHINES; ONE HEALTH TECH COMPUTER
*Reginald McGlory, Appellant in No. 98-3578
*(Pursuant to Rule 12(a), F.R.A.P.)
(D.C. Civ. No. 90-cv-00138)

UNITED STATES OF AMERICA

v.

ASSORTED JEWELRY

*Reginald McGlory, Appellant in No. 98-3579
*(Pursuant to Rule 12(a), F.R.A.P.)
(D.C. Civ. No. 90-cv-00370)

On Appeal From the United States District Court
For the Western District of Pennsylvania
District Judge: Honorable D. Brooks Smith

Submitted Under Third Circuit LAR 34.1(a)
July 13, 1999

Before: BECKER, Chief Judge, ROTH and RENDELL,
Circuit Judges.
ARGUED EN BANC: November 8, 1999

Before: BECKER, Chief Judge, SLOVITER, MANSMANN
GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,
McKEE, RENDELL and BARRY, Circuit Judges.

(Filed May 24, 2000)

       MICHAEL A. YOUNG, ESQUIRE
        (ARGUED)
       165 Christopher Street
       New York, NY 10014

       Counsel for Appellant

       HARRY LITMAN, ESQUIRE
        (ARGUED)
       United States Attorney
       BONNIE R. SCHLUETER
       MARY McKEEN HOUGHTON,
        ESQUIRE
       Assistant United States Attorney
       633 United States Post Office and
        Courthouse
       Pittsburgh, PA 15219

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

In these consolidated appeals Reginald McGlory
challenges the results of two forfeiture proceedings. The
first appeal requires that we revisit the question of the
notice that the United States must provide when it pursues
forfeiture proceedings against the property of an
incarcerated defendant in its custody. The second concerns
the District Court's use of the doctrine of laches to prevent
McGlory from challenging a forfeiture proceeding in which
the notice given for the forfeiture is later discovered to be
constitutionally inadequate.

                               2
In the first appeal, which concerns forfeiture of certain
items of jewelry, the government directed notice by certified
mail to the facility in which McGlory was incarcerated.
McGlory maintains that he did not receive the notice, and
that the government should have ensured that he received
personal notification of the proceedings against his
property. In United States v. McGlory, 202 F.3d 664 (3d Cir.
2000) (en banc), which involved different property of
McGlory's that was subject to administrative forfeiture, this
Court ruled that merely sending notice to the Marshals
Service, in whose custody McGlory was held, did not satisfy
the Constitution. We held that "at a minimum, due process
requires that when a person is in the government's custody
and detained at a place of its choosing, notice of a pending
administrative forfeiture proceeding must be mailed to the
detainee at his or her place of confinement." Id. at 674. We
noted, however, that "[w]hether anything more is required
is not presently before us." Id. This appeal squarely
presents the question whether "more" is required. McGlory
asks that we rule the judicial forfeitures at issue in this
case invalid because he did not receive actual notice of the
proceedings.

As in all cases in which proper notice under the Due
Process Clause is at issue, the touchstone of analysis 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." Mullane v. Central Hanover Bank
& Trust, Co., 339 U.S. 306, 314 (1950). The government
urges that mailing a letter by first-class mail to the location
of the interested party is always sufficient. McGlory, in
contrast, argues that a higher standard should prevail
when the party is held in custody by the same government
that wishes to serve notice upon him. He maintains that
the government was in the position to ensure actual notice
of the proceedings. Such notice has been required by
several of our sister circuits, most notably by the Second
Circuit in Weng v. United States, 137 F.3d 709 (2d Cir.
1998).

Though there is much to recommend the actual notice
standard when the United States Attorney is dealing with

                               3
federal prisoners and detainees, we are not prepared to
require the government to bear the evidentiary burden of
establishing actual notice in all cases. Such a
 780<!>demonstration could impose needless litigation costs,

especially if the due process challenge arises years after the
conclusion of the initial proceedings. Moreover, the
Supreme Court has never required the demonstration of
actual notice. At all events, the jurisprudence of
constitutional notice appropriately focuses not on what
actually occurred, but rather on the procedures that were
in place when notice was attempted. Evaluating the
adequacy of these procedures requires consideration of the
context in which they occur.

We conclude that the circumstances surrounding the
federal government's incarceration of a prisoner require
greater efforts at ensuring notice than would be expected
for individuals at liberty in society. When one is in prison,
the relative difficulty to the government to effect actual
notice is reduced, while the ability of prisoners to ensure
that they receive notices directed to them suffers. However,
we stop short of the Weng standard and adopt an approach
that focuses on the extent that procedures are reasonably
likely to effect actual notice. Under this regime, the
government's obligations do not end at the mailbox. Rather,
we hold that if the government wishes to rely on direct
mail, it bears the burden of demonstrating that procedures
at the receiving facility were reasonably calculated to deliver
the notice to the intended recipient. On this record, we
cannot determine whether such a system was in place in
McGlory's facility. We will therefore vacate the judgment
and remand to the District Court for further factual
findings on the sufficiency of the notice.

In the second forfeiture now before us, which concerns
certain electronic equipment, the notice provided to
McGlory concededly fell short of the constitutional
minimum. The government contends, however, that
McGlory's attempt to recover the forfeited property is barred
by the doctrine of laches, and the District Court agreed. We
conclude that the doctrine of laches should not be
considered when the issue is whether a judgment is void. If
McGlory unreasonably delayed in seeking the recovery of

                               4
his property, the proper time to raise the issue is in a
proceeding in which he seeks recovery from the
government. The District Court will have to consider
whether such recovery is available by a motion to vacate
that arises under Fed. R. Civ. Proc. 60(b) or if McGlory will
have to proceed by other means. We will therefore vacate
the District Court's judgment that McGlory's action was
barred by laches.

I.

This is the third time that forfeitures of McGlory's
property have come before this Court, and the facts
surrounding his arrest and detention are described several
times in the Federal Reporter, most recently in United
States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc);
see also United States v. $184,505.01, 72 F.3d 1160 (3d
Cir. 1995); United States v. McGlory, 968 F.2d 309 (3d Cir.
1992) (upholding McGlory's criminal conviction and
sentence). We therefore need not rescribe this story save for
the highlights.

On September 8, 1989, Pittsburgh police officers and
Drug Enforcement Administration agents arrested McGlory
for conspiracy to possess heroin with intent to distribute.
He was ultimately convicted of conspiracy to possess and
distribute heroin, possession of heroin with intent to
distribute, possession of a firearm by a convicted felon, use
of a firearm in a drug trafficking operation, and laundering
drug proceeds. He received a life sentence. On the date of
his arrest, the officers searched several residences used by
McGlory and seized numerous items of property, including,
at issue in this appeal, one Toshiba color television set, two
answering machines, one Health Tech computer, and
assorted jewelry. In 1990, the United States Attorney
instituted civil judicial forfeiture actions against these items
under 21 U.S.C. S 881.

Until McGlory was sentenced on February 11, 1991, he
was in the custody of the United States Marshals Service,
and was housed in various detention facilities with which it
had contracted. In initiating the forfeiture against the
jewelry, the government mailed notice of the action to

                               5
McGlory care of the Ohio County Jail in Wheeling, West
Virginia, where he was apparently being held at the time.
The notice was received at the jail on November 9, 1990
and signed for by one of the jail's officers. The government
also sent notice to the jail by regular mail and mailed notice
by certified mail to one of McGlory's pre-incarceration
residences. That letter was not accepted. Finally, the
government sent notice to McGlory's ex-wife, and to an
attorney by the name of William Magann,1 and it published
notice for three consecutive weeks in a general circulation
newspaper. No one filed a claim or answer as directed by
the notice to those seeking to contest the forfeiture. A
default judgment was entered in the government's favor on
January 7, 1991. The government ultimately sold the
jewelry for $9,950.

The government also initiated forfeiture proceedings
against the television set and the other equipment, mailing
the notice to an address used by McGlory. The government
also sent notice to McGlory's mother and Magann and
published notice in a newspaper. This proceeding was
resolved by default judgment in the government's favor on
May 31, 1990.

McGlory maintains that he never received any notice, and
he was unaware of any of the forfeiture proceedings until
December 1993. On April 11, 1994, he filed a pro se motion
pursuant to Fed. R. Crim. Proc. 41(e), seeking return of all
the property that had been seized from him. The District
Court dismissed the motion without prejudice on January
6, 1997, and McGlory promptly filed a motion to reconsider
the denial of his 41(e) motion. Shortly thereafter, he filed a
motion to vacate the judgments in the two earlier
proceedings. The Magistrate Judge to whom the case was
assigned concluded that no constitutional notice violation
occurred in the jewelry forfeiture proceeding, but that there
was a violation in the proceeding concerning the electronic
equipment. Notwithstanding this conclusion, he
recommended that this claim be dismissed based on the
_________________________________________________________________

1. In proceedings below, McGlory claimed not to know who Magann is,
and the government does not contend that he represented McGlory in
this matter.

                               6
doctrine of laches because: (a) McGlory had inexcusably
delayed seeking recovery of the property; and (b) this delay
was prejudicial to the government. Relying on the
 780<!>Magistrate Judge's report, the District Court denied

McGlory's motion to vacate the judgments on September
23, 1998. McGlory filed a timely notice of appeal.

The District Court had jurisdiction over the forfeiture
proceedings under 28 U.S.C. SS 1331, 1345, and 1355, and
over the motion to vacate judgment under 28 U.S.C.
S 1331. We have jurisdiction to review the District Court's
final order under 28 U.S.C. S 1291. Our review over
constitutional issues is plenary, see United States v.
Various Computers & Computer Equip., 82 F.3d 582, 589
(3d Cir. 1996), as is our review of the legal components of
the laches issue, see Bermuda Express, N.V. v. M/V Litsa
(Ex. Laurie U), 872 F.2d 554, 557 (3d Cir. 1989).

II.

The central issue in the appeal from the jewelry forfeiture
is whether a pretrial detainee is entitled to actual notice of
judicial forfeiture proceedings initiated against him.2 The
District Court concluded that attempting service in jail via
the mail satisfied constitutional requirements for the
service of notice. It primarily relied upon two cases. First,
it looked to our opinion in United States v. $184,505.01, 72
F.3d 1160 (3d Cir. 1995), another McGlory forfeiture case,
which taught that the government must at least attempt
service on an incarcerated defendant in the place where he
is being detained. Second, it cited Herbert v. United States,
1996 WL 355333 (E.D. Pa. June 25, 1996), aff 'd without
opinion, 103 F.3d 114 (3d Cir. 1996), which declared that
notice to the prison in which the defendant was
incarcerated met due process requirements. Because it was
_________________________________________________________________

2. The relevant precedents in this area involve both judicial and
administrative forfeitures. Insofar as both judicial and administrative
forfeiture proceedings carry the potential to affect the property rights
of
the owner, there would appear to be no reason to distinguish between
the notice required by the Due Process Clause in the two situations. At
all events, the issue presented in this appeal solely concerns judicial
forfeitures.

                               7
not affirmed by a published opinion, Herbert is not
precedential under our Internal Operating Procedures. See,
e.g., United States v. Breyer, 41 F.3d 884, 892 n.11 (3d Cir.
1994); IOP S 6.2.1 (2000 ed.). The District Court
nevertheless reasoned that the two cases indicate that, in
this circuit, attempting service by mail to a prisoner in jail
meets due process requirements.

We have never addressed the specific claim that McGlory
urges upon us now. Our most recent pronouncement on
the issue, which also involved McGlory, held no more than
that the government agency pursuing the forfeiture must
send notice to the facility at which the detainee is actually
incarcerated and that it may not rely on another agency to
do so. See United States v. McGlory, 202 F.3d 664 (3d Cir.
2000) (en banc). We turn then to consideration of whether
due process requires the government to go further and
provide actual notice to an incarcerated defendant against
whom it has initiated forfeiture proceedings.

A.

Our analysis perforce begins with Mullane v. Central
Hanover Bank & Trust, Co, 339 U.S. 306 (1950), which
established the framework for evaluating the adequacy of
notice for due process purposes. As described by the
Supreme Court, the judgment is a highly contextual one.
"An elementary and fundamental requirement of due
process in any proceeding which is to be accordedfinality
is notice 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."
Id. at 314 (emphasis added). A person or entity seeking to
give notice must employ means "such as one desirous of
actually informing the absentee might reasonably adopt to
accomplish it." Id. at 315.

Under this framework, it is clear that when an
incarcerated individual is the one being served, the serving
party must attempt to effect service where the prisoner may
be found--that is, in prison, not the pre-incarceration
address. See Robinson v. Hanrahan, 409 U.S. 38, 40 (1972)
(per curiam). As the Magistrate Judge's report recounted,

                               8
this Court has ruled that notices in other forfeiture
proceedings involving McGlory were inadequate when they
did not attempt to reach him where he was incarcerated.
See United States v. $184,505.01, 72 F.3d 1160 (3d Cir.
1995).

B.

The government argues that precedent supports the
conclusion that direct mail always satisfies due process
requirements. Indeed, Supreme Court authority indicates
that mailing to the location where the party can be found
usually suffices for due process purposes. See Mullane, 339
U.S. at 318. In Mennonite Bd. of Missions v. Adams, 462
U.S. 791, 800 (1983), the Court opined, "[n]otice by mail or
other means as certain to ensure actual notice is a
minimum constitutional precondition to a proceeding which
will adversely affect the liberty or property interests of any
party . . . if its name and address are reasonably
ascertainable." The government points to this language and
to Tulsa Professional Collection Services v. Pope, 485 U.S.
478 (1988), for the proposition that notice by direct mail
suffices to establish its successful discharge of its
obligations to McGlory under the Due Process Clause. See
id. at 490 ("We have repeatedly recognized that mail service
is an inexpensive and efficient mechanism that is
reasonably calculated to provide actual notice.").

While this argument carries strong surface appeal, it
ignores the framework that Mullane decreed. Precedents
endorsing direct mail as a means of meeting constitutional
notice requirements in certain contexts do not establish
that such mailings result in per se satisfaction of notice
requirements. Adequacy of notice is always evaluated by
reference to the surrounding circumstances. See Mullane,
339 U.S. at 314. "The focus is on the reasonableness of the
balance, and, as Mullane itself made clear, whether a
particular method of notice is reasonable depends on the
particular circumstances." Tulsa Professional Collection
Serv., 485 U.S. at 484. For example, in Covey v. Town of
Somers, 351 U.S. 141, 146-47 (1956), the Supreme Court
held that notice sent to an incompetent taxpayer was
inadequate, notwithstanding that the notice was sent by

                               9
direct mail. Though the facts of Covey are not, of course,
analogous to the case at hand, that case's disposition
stands as a stark example of the imprudence of gleaning
from Supreme Court precedent a per se rule that mail will
always be adequate notice. The proper effort at giving
notice, the effort "such as one desirous of actually
informing the absentee might reasonably adopt to
accomplish it," Mullane, 339 U.S. at 315, will vary under
the circumstances.

C.

Our sister circuits have differed on what kind of notice is
the constitutional minimum for incarcerated individuals
whose property is subject to forfeiture. United States v.
Clark, 84 F.3d 378, 380 (10th Cir. 1996), involved the
government's attempt to serve notice of an administrative
forfeiture to a pre-trial detainee by mailing it to the facility
where he was actually held. The Tenth Circuit held that
this notice met the demands of due process, even if the
party served did not actually receive the mailed notice. See
id. at 381. In concluding that the notice was sufficient, the
court employed a logic similar to that urged by the
government and pointed to the Supreme Court's indication
in Mennonite Bd. of Missions that mail is a constitutionally
acceptable form of notice. See id. "We have found no case
suggesting that service by mail is inadequate or requiring
the government to personally serve an interested party at
the place of incarceration. We decline to create such a
requirement here." Id.

Other courts of appeals, however, have required more. In
Weng v. United States, 137 F.3d 709 (2d Cir. 1998), the
Second Circuit announced a requirement of actual notice.
Weng involved several administrative forfeiture notices, one
of which was sent by certified mail to the federal facility at
which the defendant was detained. See id. at 714. The
court determined that Mullane's balancing analysis
compelled more. Noting the importance of the property
interest at stake to the party notified and his inability to
rely on others to vindicate those interests, see id. at 714-
15, the court declared that the interests and burdens on
the other side of the scale were less pronounced."[A]t least

                                10
where the owner is in federal custody on the very charges
that justify a federal agency in seeking the forfeiture, there
is no undue hardship to the agency in insuring that the
owner-prisoner actually receive the legally required
notification." Id. at 715. The court further noted the
disparity in the parties' relative ability to take precautions
to ensure the prisoner's receipt of notice.

       First, as a prisoner, the owner is unable to insure that
       he will receive the notice once the post office has
       delivered it to the institution. The owner is entirely
       dependent on the institution to deliver his mail to him.
       Second, because the owner's jailor--the Bureau of
       Prisons--is part of the same government . . . as the
       agency seeking to give notice, the forfeiting agent can
       in all probability easily secure the Bureau's cooperation
       in assuring that the notice will be delivered to the
       owner and that a reliable record of the delivery will be
       created.

Id.

The court concluded that, under the circumstances,
merely sending notice to the detention facility without
ensuring actual delivery to the prisoner is not notice "such
as one desirous of actually informing [the owner] might
reasonably adopt." Id. (quoting Mullane, 339 U.S. at 315).
Instead, the court held that when the prisoner is in federal
custody on the charges that are the basis of the forfeiture,
"mailing of a notice to the custodial institution is not
adequate unless the notice is in fact delivered to the
intended recipient." Id.; see also United States v. Woodall,
12 F.3d 791, 794-95 (8th Cir. 1993) ("[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.").

As Weng recites, the circumstances of prisoners differ
greatly from free citizens, a fact that potentially alters the
evaluation of what steps are reasonably calculated to

                               11
provide notice. When an individual is incarcerated at a
location of the government's choosing, the government's
ability to find and directly serve him or her with papers is
at or near its zenith. Not only does the government know
where to find the person, it can be equally sure that he or
she will be there when the papers are delivered. Indeed, it
can even move the person to a more convenient location if
it so chooses. This appears especially the case where, as
here, ongoing criminal proceedings against the prisoner
brought the prisoner into frequent face-to-face contact with
government attorneys.

For his part, a prisoner lacks the ability to take steps to
ensure that his mail is actually delivered to him. This
dilemma is especially acute for a prisoner who may be
transferred from facility to facility, complicating efforts to
effect service. In the outside world, an individual who
changes addresses can arrange to have mail forwarded and
can notify interested parties as to the change of address.
While a prisoner may take similar steps, the effectiveness of
these measures may depend in some degree on such
independent factors as prison policies vis-a-vis the
forwarding of mail or the amount of forewarning a prisoner
receives of an impending transfer. We also note that a
prisoner may not know how long he or she will be at the
changed address, which may make prison forwarding
difficult. Shades of the same problem also exist for a
prisoner who is not moved, but remains at one facility. If a
person lives in an apartment building where the
distribution of mail among the residents leads to lost
missives, that person has some recourse, through
complaint or, possibly, moving elsewhere. Such options are
necessarily curtailed for the prisoner.

The relative burdens and benefits of additional steps to
ensure actual notice, therefore, suggest that requiring
greater efforts at assuring notice by the government is
appropriate. In other words, there is much to commend the
Weng approach, and as an aspiration, the Weng rule
comports with our ideas of the sort of effort that the
government should undertake when it wishes to effect
notice of a forfeiture proceeding against a prisoner in
federal custody. On the other hand, Weng involved a

                               12
prisoner held in a federal, rather than a state, facility. As
the Seventh Circuit has observed, "[t]he prophylactic Weng
rule, requiring actual notice, becomes less reasonable as
the federal government exercises less control over the
detainee." Donovan v. United States, 172 F.3d 53, 1999 WL
50847, at *2 (7th Cir. Feb. 2, 1999). The rejoinder to this
argument is that, though McGlory was held in a state
facility, he was held pursuant to his arrest on federal
charges, and in contracting with state facilities to house
pre-trial detainees, the federal government has the ability to
demand procedures that will allow the delivery of adequate
notice for prisoners.

Though attractive, the Weng rule does present problems.
The real difficulty with the Weng rule lies not in requiring
the government to demonstrate actual notice, but rather
the evidentiary burden that such a standard could impose
after the passage of time. Given the temporal gap that may
separate a forfeiture from a due process challenge to the
proceedings, it is easy to imagine situations in which proof
of the delivery of notice may be unavailable, even if such
notice was properly served. An overly strict notice
requirement, therefore, could lead to unsettling the
outcome of completed proceedings based on nothing but
bare allegations of a party who had lost property.

More importantly, the Weng approach undermines the
procedural analysis that has heretofore animated the
Supreme Court's dictates on this subject. The Court has
never employed an actual notice standard in its
jurisprudence. Rather, its focus has always been on the
procedures in place to effect notice. See, e.g. , Mennonite Bd.
of Missions, 462 U.S. at 799-80.3 We think this focus
appropriate. Thus, while we will not adopt the Weng rule,
the concerns animating Weng will inform our decision as to
the procedures designed to give notice. We hold that, while
_________________________________________________________________

3. It is true that Tulsa Prof. Collection Services v. Pope, 485 U.S. 478,
485
(1988), speaks in terms of requiring "actual notice" to those with a
liberty or property interest at stake in a proceeding. That opinion,
however, also describes mail service as an acceptable means of providing
actual notice. See id. at 490. In our view, therefore, "actual notice" is
employed not as a rule, but rather as a goal against which various forms
of effecting actual notice are evaluated.

                               13
the government need not prove actual notice to the
prisoner, if it chooses to rely on less than actual notice, it
bears the burden of demonstrating the existence of
procedures that are reasonably calculated to ensure that
such notice will be given. Thus, our rule requires the
government to ensure that proper procedures are employed
in the facilities where it chooses to house its prisoners.4 Of
course, if there is a signed receipt from the served party,
the government does not then have to prove anything about
the procedures that were in place.5

Because the District Court did not make findings on the
sort of procedures in place at the facility at which McGlory
was housed and whether these procedures were reasonably
calculated to ensure that the notice, once addressed to
McGlory, would still reach him upon arrival at the prison
(and indeed, would only be accepted were McGlory actually
present), we will vacate the District Court's ruling as to the
jewelry forfeiture and remand for further proceedings
consistent with this opinion.
_________________________________________________________________

4. Our ruling is analogous to the approach taken by the Ninth Circuit in
United States v. Real Property, 135 F.3d 1312 (9th Cir. 1998). In that
case, the court declined to require actual notice to a forfeiture
defendant
when notice was sent by certified mail to the facility in which he was
held awaiting trial and evidence was presented that the facility handled
certified mail to inmates by opening the letters in their presence and,
after checking for contraband, giving the contents directly to them. See
id. at 1315. Under these circumstances, the court concluded that
sufficient notice was given. See id. at 1316.

5. Our approach would also apply to the problem of the relocated
prisoner. Just as the government can monitor whether mail reaches a
prisoner within a facility, it can similarly ensure that mail will follow
an
inmate who is transferred from one facility to another. See generally
Small v. United States, 136 F.3d 1334, 1337 (D.C. Cir. 1998) (deeming
notice inadequate when notice sent to jail and returned absent
indication that effort to find prisoner for resending would be burdensome
to government); Armendariz-Mata v. U.S. Dep't of Justice, D.E.A., 82 F.3d
679, 683 (5th Cir. 1996) (holding notice inadequate when notice to jail
returned undelivered and sender made no further inquiry).

                               14
III.

In the forfeiture proceeding regarding the Toshiba
television and other electronic equipment, the government
made no attempt to serve McGlory in jail. For due process
purposes, therefore, the attempted notice was clearly
inadequate. Though the government concedes the
constitutional deficiency of its notice, it contends, and the
District Court agreed, that McGlory's motion to vacate
judgment on this forfeiture is precluded by the doctrine of
laches. We disagree.

A.

The District Court treated McGlory's motion as arising
under Federal Rule of Civil Procedure 60(b), but concluded
that the improper notice given by the government of the
forfeiture proceedings rendered the judgments, as applied
against him, "voidable" rather than "void," as provided by
Fed. R. Civ. Proc. 60(b)(4). We think this conclusion
incorrect. As a general matter, we have held that the entry
of a default judgment without proper service of a complaint
renders that judgment void. See Gold Kist, Inc. v.
Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985). The
majority of courts of appeals to consider the fate of a prior
forfeiture proceeding that violated notice requirements
agree that a judgment issued without proper notice to a
potential claimant is void. See United States v. Marolf, 173
F.3d 1213, 1216 (9th Cir. 1999); Clymore v. United States,
164 F.3d 569, 573 n.5 (10th Cir. 1999); Muhammed v.
D.E.A., Asset Forfeiture Unit, 92 F.3d 648, 654 (8th Cir.
1996); Barrera-Montenegro v. United States, 74 F.3d 657,
661 (5th Cir. 1996); United States v. Giraldo , 45 F.3d 509,
512 (1st Cir. 1995). But see United States v. Dusenbery,
201 F.3d 763, 768 (6th Cir. 2000) (treating forfeiture as
voidable rather than void); Boero v. D.E.A., 111 F.3d 301,
307 (2d Cir. 1997) (same).

In light of our decision in Gold Kist, we are in accord with
the majority view. Gold Kist involved a service of a
summons and complaint in a manner that did not conform
with Pennsylvania law. See Gold Kist, 756 F.2d at 18.
Defendants in that action challenged the default judgment

                               15
entered against them. Citing Fed. R. Civ. Proc. 60(b)(4), we
declared that "[a] default judgment entered when there has
been no proper service of complaint is, a fortiori, void, and
should be set aside." Id. at 19. Because of the complaint's
improper service, as well as the entry of default judgment
before the expiration of the time for filing an answer, see
id., the Gold Kist panel refrained from considering other
factors that could also justify the setting aside of a default
judgment. See id.

The same logic applies here. Though we understand the
concern expressed by the Sixth Circuit in Dusenbery that a
prisoner claimant could sit on his or her rights until after
the passage of the statute of limitations for the government
to reinitiate a proceeding, see Dusenbery, 201 F.3d at 768,
we conclude that this concern can be addressed by other
means, see id. at 769 (Cole, J., dissenting). As we explain
below, a holding that the forfeiture against McGlory's
property was void does not equate to a ruling that he is
entitled to a return of the property or monetary relief from
the government, because a Rule 60(b) motion is not a claim
for the return of property. McGlory will therefore have to
pursue further proceedings to recover his property, and it
is in these proceedings that the government may invoke
defenses that are predicated on McGlory's alleged delay.

B.

The District Court ruled that McGlory's motion to vacate
was barred by the doctrine of laches. The doctrine of laches
hails from equity, and is invoked when two essential
elements exist: inexcusable delay in instituting suit, and
prejudice resulting to the defendant from such delay. See
Central Penn. Teamsters Pension Fund v. McCormick Dray
Line, Inc., 85 F.3d 1098, 1108 (3d Cir. 1996). We conclude
that the District Court was incorrect to have applied laches
analysis to McGlory's motion.

McGlory's motion was to vacate the forfeiture judgments
against him and is treated, as discussed above, as arising
under Fed. R. Civ. Proc. 60(b). It is understandable why the
District Court may have thought that the doctrine of laches
applied. A motion under Rule 60(b) is equitable in nature,

                               16
so it is reasonable to believe that equitable doctrines apply.
See Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir. 1947)
("The proceeding by motion to vacate a judgment is not an
independent suit in equity but a legal remedy in a court of
law; yet the relief is equitable in character and must be
administered upon equitable principles."); see also Winfield
Assocs., Inc. v. W.L. Stonecipher, 429 F.2d 1087, 1090 (10th
Cir. 1970) ("Rule 60(b) . . . specifically preserves the right
to attack a judgment by an independent equitable action.");
In re Brown, 68 F.R.D. 172, 174 (D.D.C. 1975) (describing
Rule 60(b) as codification of methods of gaining equitable
relief from judgments).

In light of our ruling that the judgment against McGlory
in the electronic equipment forfeiture is void, however, no
passage of time can transmute a nullity into a binding
judgment, and hence there is no time limit for such a
motion. It is true that the text of the rule dictates that the
motion will be made within "a reasonable time." See Fed. R.
Civ. Proc. 60(b). However, nearly overwhelming authority
exists for the proposition that there are no time limits with
regards to a challenge to a void judgment because of its
status as a nullity; thus laches is no bar to recourse to
Rule 60(b)(4). See Hertz Corp. v. Alamo Rent-A-Car, Inc., 16
F.3d 1126, 1130-31 (11th Cir. 1994) (collecting cases);
Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir. 1993); Katter
v. Arkansas Louisiana Gas Co., 765 F.2d 730, 734 (8th Cir.
1985); In re Center Wholesale, Inc., 759 F.2d 1440, 1448
(9th Cir. 1985); Misco Leasing, Inc. v. Vaughn , 450 F.2d
257, 260 (10th Cir. 1971); Austin v. Smith, 312 F.2d 337,
343 (D.C. Cir. 1962); Moore v. Positive Safety Manufacturing
Co., 107 F.R.D. 49, 50 (E.D. Pa. 1985); see also Rodd v.
Region Constr. Co., 783 F.2d 89, 91 (7th Cir. 1986) ("[T]he
reasonable time criterion of Rule 60(b) as it relates to void
judgments, means no time limit because a void judgment is
no judgment at all.") (citation and quotation omitted).

We agree that no passage of time can render a void
judgment valid, and a court may always take cognizance of
a judgment's void status whenever a Rule 60(b) motion is
brought. Without addressing any other reason to bar a Rule
60(b) motion that attacks a judgment as void,6 we hold that
_________________________________________________________________

6. We also note that McGlory's delay vis-a-vis attacking the judgment (as
opposed to inquiring into the disposition of his property, an issue that

                               17
laches may not be used to preclude such a motion. Cf.
Micro Leasing, 450 F.2d at 260 ("The cases say that a void
judgment acquires no validity as the result of laches on the
part of the adverse party. We are not asked to consider
whether under any particular circumstances a movant
under Rule 60(b) may be estopped or precluded fromfiling
such a motion.") (footnote omitted).

C.

Though we hold that laches is not available to preclude
a claimant from attacking a void judgment, our holding is
not to be construed as allowing a petitioner to sit on his or
her rights. It is true that if a court is able to determine that
a prior judgment is indeed void, it should declare it as
such, but that does not mean that other remedies, such as
the actual return of property or its cash value, are immune
from defenses of waiver or laches. In other words, we
conclude that the potential prejudice that arises from such
delay is best dealt with outside of the Rule 60(b) context.

Whether McGlory unreasonably delayed in seeking
recovery of his property in general, which is the laches
issue considered by the District Court, is a matter distinct
from whether the judgment that forfeited the property was
void. That is not, however, a matter that is before this
Court. We are only reviewing the denial of McGlory's motion
to vacate. Even if he prevails on this motion, that does not
mean that he is entitled to any monetary relief or relief in
the form of a transfer of property. It has been held that
_________________________________________________________________

is not before us) was clearly not unreasonable. He maintains that he
promptly sought relief from the judgments against him once he learned
of them in 1994, and the District Court made no factfindings that
indicate that McGlory learned of the judgments at an earlier date. Nor
does this appear to be a situation in which McGlory can be accused of
having waived his ability to bring a Rule 60(b) motion, as he did not
previously launch a Rule 60(b) attack against the judgments. Cf. Beller
& Keller v. Tyler, 120 F.3d 21, 23-24 (2d Cir. 1997) (acknowledging that
laches cannot give a void judgment validity, but suggesting that a motion
may be untimely when the voidness challenge is raised on a successive
motion to vacate).

                               18
Rule 60(b) does not provide for such remedies. See United
States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d
1353, 1356-57 (5th Cir. 1972) (holding that monetary
remedy for void forfeiture, which depends on waiver of
sovereign immunity, lies not in Rule 60(b) but in 28 U.S.C.
S 1346(a)); see also United States v. $119,980.00, 680 F.2d
106, 107-08 (11th Cir. 1982) (holding Rule 60(b) may not
be used to impose affirmative relief beyond setting aside
prior judgment); United States v. One Douglas A-26B
Aircraft, 662 F.2d 1372, 1377 (11th Cir. 1981) (same). In
order to obtain such relief, McGlory may have to look
elsewhere.

It is in the pursuit of his remedies that McGlory's delay,
if any, will become an issue. Though the vacatur of the
earlier judgment will be a powerful weapon for McGlory in
such an effort, it will not decide the issue. McGlory would
have to act within the confines of whatever legal framework
surrounds the legal or equitable remedy he will elect to
pursue. At that time, the District Court may consider
whether the doctrine of laches applies, or whether the six-
year statute of limitations for suits against the federal
government is applicable. See 28 U.S.C.S 2401(a). It would
appear that the federal statute applies, see Menkarell v.
Bureau of Narcotics, 463 F.2d 88, 91 (3d Cir. 1972)
(applying six-year statute of limitations of 28 U.S.C.
S 2401(a) in attempt to recover forfeited property), even if
the action is characterized as equitable, see, e.g.,
Blassingame v. Secretary of Navy, 811 F.2d 65, 70 (2d Cir.
1987) ("[T]he merger of law and equity assured that section
2401(a) covers both legal and equitable actions.").

If the District Court concludes laches analysis to be in
order anyway, it will have to determine the interplay
between laches and the relevant statute of limitations,
giving consideration to the cases that indicate that if a suit
is brought within the statutory period, laches would
generally be unavailable. See, e.g., Central Penn. Teamsters
Pension Fund v. McCormick Dray Line, Inc., 85 F.3d 1098,
1108 (3d Cir. 1996); Henry v. United States, 46 F.2d 640,
642 (3d Cir. 1931) ("While there is no statute of limitations
in equity, yet it generally in this respect follows the law,
and will, in the absence of special extenuating

                               19
circumstances . . . regard the delay as inexcusable and
refuse relief after the time of the statute of limitations in
that particular locality has expired."); Ikelionwu v. United
States, 150 F.3d 233, 238 (2d Cir. 1998) (declining to
invoke laches when suit to recover forfeited property
brought within statutory period). Also, insofar as it
considers the doctrines of equity, the District Court will
also have to consider whether the party asserting the
defense of laches has clean hands. See United States v.
Marolf, 173 F.3d 1213, 1219 (9th Cir. 1999) (refusing to
reverse district court's rejection of laches defense in light of
government's "inexplicable fail[ure] to remedy" an improper
administrative notice or initiate proper judicial
proceedings).

We reference the foregoing authority not to express any
view on the merits but only to flag important issues that
the District Court did not appear to consider in its analysis
of laches. At all events, we make no ruling on issues of
inexcusable delay because all we have before us is the
motion to vacate, and, as we have held, laches analysis
does not apply to such a motion. Finally, in ruling that the
judgment in the electronic equipment forfeiture is void, we
offer no opinion as to whether the government is prohibited
from reinitiating the forfeiture action against McGlory or if
the passage of the relevant statute of limitations has been
tolled. The District Court will have to consider the issue
should the government attempt to reinitiate such
proceedings.

The judgment of the District Court will be vacated and
the case remanded for further proceedings consistent with
this opinion.

                               20
ALITO, Circuit Judge, concurring and dissenting:

I join parts I and III of the opinion of the court and
concur in the judgment insofar as it relates to No. 98-3578.
However, I respectfully dissent from the court's disposition
of No. 98-3579 and from part II of the opinion of the court,
which adopts an interpretation of due process that has no
basis in prior decisions of the Supreme Court or our circuit.

The question before us is not whether it would be good
policy to require the government in forfeiture proceedings to
provide notice to interested parties by some means superior
to the mail. Rather, the question is whether the government
complied with the minimum requirements of the Due Process
Clause by sending notice by mail (return receipt requested)
to McGlory at the facility where he was detained. Under
Supreme Court precedent, this met constitutional
standards. The Supreme Court has repeatedly referred to
the service of notice by mail as sufficient to satisfy the
minimum requirements of due process. See, e.g. , Tulsa
Prof 'l Collection Services v. Pope, 485 U.S. 478, 490 (1988);
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800
(1983) ("Notice by mail or other means as certain to ensure
actual notice is a minimum constitutional precondition to a
proceeding which will adversely affect the liberty or
property interests of [a] party . . . ."). 1

The majority seemingly acknowledges that service by mail
sent to the addressee's current address is constitutionally
adequate in almost all other contexts, but the majority
holds that such notice may not be sufficient when sent to
a detainee or prisoner. Why? Why is it that mail sent to,
say, an inexpensive long-term-occupancy hotel is
reasonably calculated under all the circumstances to
apprise an interested party of the pendency of a forfeiture
_________________________________________________________________

1. On only one occasion has the Court held that notice by mail sent to
the addressee's correct address was not constitutionally adequate. In
Covey v. Town of Somers, 351 U.S. 141 (1956), the Court held that due
process was violated where notice of foreclosure for delinquent taxes was
mailed to a person who was known to be incompetent, lived alone, and
had no guardian, no relatives in the state, and no other person who was
able to help her with her taxes. Id. at 146-47. Thus, Somers hardly
supports the majority's holding here.

                               21
action but mail sent to a jail or prison may not be? The
answer must be that there is a significantly higher
probability that mail sent to such hotels will reach the
addressees than is the case with mail sent to a jail or
prison. But where is the evidence that this is so? The
majority studiously avoids this point--for the very good
reason that no evidence whatsoever to this effect has been
adduced, by McGlory, the majority in this case, or any
other judicial opinion of which I am aware. Such systemic
problems may or may not exist; I don't know; and I doubt
that my colleagues do either. But without such evidence,
there is no logical basis for the majority's decision.

It may well be that it would be advisable for those with
legislative or rulemaking authority to require the
government in forfeiture cases to provide better notice than
is required by the minimum standard imposed by due
process. Congress has recently manifested concern about
the fairness of federal forfeiture procedures and has
enacted the Civil Asset Forfeiture Reform Act of 2000, Pub.
L. No. 106-185, 114 Stat. 202 (2000), to remedy the
problems that it found. This Act, however, does not require
that notice of forfeiture be provided by some means better
than the mail, but perhaps Congress should consider that
question. Congress has the capability--which the federal
courts plainly lack--to investigate whether notice of
forfeiture sent by mail fails to reach the addressee in a
significant number of cases. (The mere fact that McGlory
and a handful of other federal prisoners and detainees have
claimed that they did not receive notice sent by mail to
their facilities is hardly enough to show the existence of a
serious problem.) Congress also has the ability to craft a
rule that is specifically targeted to deal with any problem it
finds to exist. It can specify the addressees to which any
such rule applies--e.g., all persons to whom notice is
provided, only those in custody, only those in custody on
federal charges, or only those in federal facilities. And it can
provide that any new rule will not have retroactive effect. A
court, in interpreting the Due Process Clause, lacks such
flexibility."

I have three additional observations about the majority's
decision. First, although the decision formally applies only

                                22
to notices of forfeiture sent by the federal government to
persons in custody on federal charges, its logic extends to
any forfeiture notices sent to any persons in custody. If
notice of a federal forfeiture proceeding that is sent by mail
to a person in a state facility on federal charges is not
reasonably calculated under all the circumstances to
apprise that person of the pendency of the federal forfeiture
proceeding, notice of a state forfeiture proceeding that is
sent by mail to another person held in the same facility on
state charges cannot be reasonably calculated to inform
that person of the pendency of the state forfeiture
proceeding. Thus, the majority's decision has a broad
logical sweep.

Second, the majority's standard regarding the adequacy
of mail handling procedures is left open-ended and will
almost certainly lead to confusion and litigation. Under the
majority's decision, notice by mail to a detainee or prisoner
satisfies due process only if the facility's mail handling
procedures at the time in question were reasonably
calculated to ensure that the notice reached the addressee.
See Maj. Op. p. 14. What does this mean in practical
terms? Must there be a written policy? Must the addressee
sign a receipt? May delivery of the mail be entrusted to
other detainees or prisoners? Must the mail be handed to
the addressee personally? One or more rounds of litigation
will almost certainly be required to answer these and
related questions.

Third, although the majority has attempted to devise a
rule that will not impose an undue evidentiary burden in
cases in which forfeiture judgments are sought to be
vacated for lack of proper notice, the majority's decision
may well prove quite difficult to administer. As previously
noted, the majority's mail handling standard is murky, and
attempting to establish what procedures were followed at
various points in the past at the numerous state and
federal facilities in which federal detainees and prisoners
have been held may not be easy. And if the majority's
decision is extended to state detainees and prisoners, as I
think logic requires, the problem will be magnified.

I would hold that due process was satisfied and leave it
to the legislative or rulemaking processes to decide whether

                               23
additional notice requirements should be imposed in
forfeiture cases.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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