                  United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                  _____________

                                  No. 96-2158SI
                                  _____________

United States of America,               *
                                        *
           Appellee,                    * On Appeal from the United
                                        * States District Court
     v.                                 * for the Southern District
                                        * of Iowa.
                                        *
William Lee Cupples,                    *
                                        *
           Appellant.                   *
                                   ___________

                     Submitted:    February 11, 1997

                         Filed:    April 23, 1997
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY,*
      Chief District Judge.
                                ___________


RICHARD S. ARNOLD, Chief Judge.


     In early 1995, after an uncontested civil forfeiture proceeding, the
Drug Enforcement Administration declared $24,410 of money claimed by
William Lee Cupples administratively forfeited to the government.     Cupples
later moved for the return of his property, arguing that he had not
received adequate notice of the administrative proceeding.     The District
Court denied his motion, and this appeal followed.     We reverse and remand
this proceeding so




     *The Hon. Richard H. Battey, Chief Judge, United States
District Court for the District of South Dakota, sitting by
designation.
that the District Court can determine whether or not Cupples received
actual notice of the administrative forfeiture proceeding.


                                       I.


      In November 1994, a Utah state trooper stopped a pick-up truck on
suspicion of drunk driving.      While searching the truck, he discovered 20
ounces of methamphetamine and three pounds of marijuana.        The passenger in
the truck claimed that he was on his way to deliver the drugs to William
Lee Cupples.     Utah law- enforcement officers used this information to
obtain a search warrant for Cupples’s residence in Des Moines, Iowa.          The
officers then had the passenger deliver the drugs to Cupples’s residence
and executed the search warrant as soon as the passenger entered the house.


      In their search of the house, the officers discovered and seized a
small quantity of drugs and $24,410 in U.S. currency.                 Cupples was
eventually     arrested    and   charged    with   conspiracy    to    distribute
methamphetamine and marijuana in violation of 28 U.S.C. § 846, and
possession with intent to distribute methamphetamine in violation of 21
U.S.C. § 841(a)(1).   The government also sought criminal forfeiture of the
money from Cupples’s residence, claiming it to be the proceeds of drug
transactions.    Three days after the return of the indictment on December
16,   1994, the Drug Enforcement Administration instituted a parallel
administrative proceeding seeking the forfeiture of the same money.
      On December 24, 1994, a notice advising Cupples of the administrative
forfeiture proceeding was delivered to his house by certified mail and
signed for in Cupples’s name by Dave Boudreau, who was living at Cupples’s
house at the time.        The notice advised that administrative forfeiture
proceedings were under way and that




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Cupples could challenge the forfeiture by submitting a petition for
remission or mitigation within 30 days of the receipt of the notice or by
making an appropriate filing in federal district court within 20 days of
the publication of the notice of forfeiture in the December 28, 1994,
edition of U.S.A. Today.     Cupples claims, and the District Court assumed,
that Boudreau neglected to tell Cupples about the notice.      Consequently,
Cupples failed to challenge the administrative forfeiture, resulting in the
issuance of a Declaration of Forfeiture approximately a month after the
notice of the forfeiture proceeding was delivered to Cupples’s residence.
     Meanwhile, Cupples was contesting the criminal charges against him.
He entered a plea of not guilty to the drug charges on the same day that
the Notice of Seizure was delivered to his house.      He also moved in the
criminal case for the return of his property shortly after the final date
for challenging the administrative forfeiture but before the government
issued the Declaration of Forfeiture.    A hearing was held on the same day,
and the motion was denied.      The government did not inform Cupples, his
attorney, or      the District Court at this time of the parallel civil
forfeiture proceedings.    Two months after the entry of his plea, Cupples’s
trial on the drug charges began.    Both he and his grandmother testified at
the trial that his grandmother had lent him the money that the officers
seized from his house to help with his auto-sales business.         The jury
acquitted Cupples of the drug charges, and the court then dismissed the
criminal forfeiture count.    It was only when Cupples tried again to get his
money back that he discovered that the money had been civilly forfeited to
the government.   Cupples then moved for the return of his property in the
District Court, arguing that the government violated his due process rights
because it never provided him or his counsel with actual notice of the
administrative forfeiture proceeding.       The District Court denied his
motion, and this appeal followed.




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                                      II.


     The District Court assumed, as alleged, that Cupples and his counsel
never received actual notice of the administrative forfeiture proceeding.
Nevertheless, it held, and the government argues, that notice sent by
certified   mail   to   Cupples’s   residence    was   enough   to   satisfy   the
government’s constitutional obligations.        This Court has previously held
to the contrary.    In United States v. Woodall, 12 F.3d 791, 794-95 (8th
Cir. 1993), this Court held that “if 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.”


     The government attempts to distinguish Woodall by pointing out that
in that case, the government sent the notice of forfeiture to the wrong
address, a circumstance not present in this case.               The rule of law
announced in Woodall, however, is not limited to the facts of that case.
The case hinged upon the property owner’s failure to receive actual notice
of the forfeiture, not upon the particular circumstances of the case.          When
the government is prosecuting someone who is actively contesting the
criminal charges against him, including a count of the indictment seeking
forfeiture, but who is not contesting the civil forfeiture proceedings
against him, the government both knows the identity of the property owner’s
lawyer and has some idea that the defendant may not know of the parallel
administrative forfeiture proceedings.      Under these circumstances, it is
only fair and not unduly burdensome, to require the government to give
actual notice to the property owner’s counsel or the defendant himself.




                                      -4-
     The District Court assumed that Cupples did not know of the pending
administrative proceedings.   Because this case was decided at the pleadings
stage, the assumption was entirely proper.      It was appropriate for the
District Court to assume that the facts were as alleged by Cupples.
Whether Cupples did have actual notice, however, is a question of fact.
If the government denies Cupples’s version of the facts, Cupples should
then, on remand, be put to his proof.   If the Court then finds that Cupples
did not have actual knowledge of the institution of the civil forfeiture
proceedings, the proceeding should then continue, with Cupples being given
an opportunity to contest the forfeiture either by administrative petition
or through a judicial proceeding.   If, on the other hand, the Court finds
that Cupples did have actual knowledge of the administrative forfeiture
proceeding, either because Dave Boudreau told him about it, or for some
other reason, the Court should enter judgment confirming the government’s
declaration of forfeiture.


     The judgment is reversed, and the cause remanded for proceedings not
inconsistent with this opinion.


     It is so ordered.


     A true copy.


           Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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