                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-2175
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Corut for the
      v.                                 * Southern District of Iowa
                                         *
Timmie Durrell Cole, Sr.,                *      [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 20, 2008
                                 Filed: May 23, 2008
                                  ___________

Before BYE, SMITH, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

      Federal inmate Timmie Cole, Sr., appeals the district court’s denial of his
motion for return of $2,450 in cash seized during the execution of a search warrant
and arrest, and later forfeited to the government pursuant to administrative forfeiture
proceedings under 21 U.S.C. § 881(a)(6). We reverse and remand.

       Cole argued below that he had not received notice of the forfeiture proceedings,
whereas the government asserted it had mailed notice of the proceedings to Cole and
his attorney, and had received a return receipt indicating that someone in the
attorney’s office had signed for the notice. In reply, Cole argued, as relevant to this
appeal, that the government failed to submit proof substantiating its attempts to
provide him with notice of the proceedings. Without requiring evidence from the
government, the district court denied Cole’s motion, concluding that the government’s
service of notice on Cole’s attorney satisfied due process. Because the government
did not submit evidence below to support its assertions that it mailed notice of the
forfeiture proceeding to Cole’s attorney and that someone in the office signed for the
mailing, we vacate the district court’s order and remand for further proceedings as to
the sufficiency of notice regarding the forfeiture proceedings. See Dusenbery v.
United States, 534 U.S. 161, 168-71 (2002) (describing what constitutes notice
“reasonably calculated” to apprise inmate of forfeiture proceeding); cf. Fed. R. Crim.
P. 41(g) (person aggrieved by deprivation of property may move for return of property
and court “must receive evidence on any factual issue necessary to decide the
motion”).

      Accordingly, we vacate the district court’s order and remand for further
proceedings consistent with this opinion.
                      ______________________________




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