     Case: 11-50475     Document: 00511841827         Page: 1     Date Filed: 05/02/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                            May 2, 2012

                                     No. 11-50475                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JAMES LLOYD CONARD

                                                  Petitioner-Appellant
v.

UNITED STATES OF AMERICA

                                                  Defendant-Appellee
and


SEIZURE OF $278,478.34,

                                                  Defendant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                            U.S.D.C. No. 5:10-cv-00355


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        James Lloyd Conard filed suit in federal court to set aside the
administrative forfeiture of two Chase bank accounts in Conard’s name.
Pursuant to FED. R. CIV. P. 56, the district court granted summary judgment in

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                       No. 11-50475

favor of the Government, denying Conard’s motion to set aside the
administrative forfeiture and for return of the funds. We AFFIRM.
                    I. FACTS & PROCEDURAL HISTORY
        On May 9, 2007, Conard was arrested on a criminal complaint of federal
drug violations. In conjunction with his arrest, officers seized from Conard’s
residence     in    San     Antonio,     Texas,     approximately        1500     grams      of
methamphetamine, 832 grams of marijuana, 23 grams of cocaine, approximately
$82,000 in U.S. currency, and approximately 62 different weapons.
        After his arrest, Conard was released on bond and ordered to report to an
inpatient drug treatment facility. Conard initially reported to the facility but
then absconded from the facility in June 2007. An indictment was returned
against Conard shortly thereafter alleging violations of Title 21 U.S.C. §§
841(a)(1), 841(b)(1)(A) and Title 18 U.S.C. § 2, for Conspiracy to Possess with
Intent to Distribute Methamphetamine, a Schedule II Controlled Substance and
Aiding and Abetting the same; and Title 18 U.S.C. § 924(c), Possession of a
Firearm during a Drug Trafficking Crime. A warrant for Conard’s arrest was
issued on June 11, 2007. Conard remained a fugitive for approximately one
year.
        During the year that Conard was a fugitive, federal agents discovered two
Chase bank accounts in Conard’s name. Agents sought, received, and executed
a seizure warrant for the balances contained in the bank accounts. The account
at issue in this appeal contained a balance of $278,478.34 (hereinafter referred
to as the “subject currency”).1 Pursuant to the Civil Asset Forfeiture Reform Act,
the Drug Enforcement Administration (“DEA”) began administrative forfeiture
proceedings against the subject currency.



        1
         Conard’s other Chase bank account contained a balance of $192.09 and is not at issue in
this appeal.

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      The DEA made four attempts to send notice of the administrative
forfeiture proceedings to Conard. The notices included a statement by the DEA
of its intent to administratively forfeit the property along with information
detailing the procedures and applicable deadlines to claim the seized property.
The first and second notices were sent via certified mail to Conard’s residence
in San Antonio, both of which were returned unclaimed. The DEA then sent
notice to Conard’s attorney, which was received. The DEA also discovered an
alternative address associated with Conard in Converse, Texas, and sent notice
via certified mail to that address, which was claimed and signed for as having
been delivered. Additionally, the DEA published notice of the administrative
forfeiture in the Wall Street Journal on August 6, 13, and 20, of 2007.
      When no claims to the seized property were received after the above four
notices were issued, the DEA entered a declaration of administrative forfeiture
of the subject currency.
      Conard was then re-arrested, entered a guilty plea to the criminal charges
in the indictment, and was sentenced to a term of sixty-five months’
imprisonment. After this disposition of his criminal case, Conard filed suit in
May 2010 to set aside the administrative forfeiture of the subject currency and
for return of the funds. Conard claimed that the subject currency was comprised
entirely of legitimately earned retirements funds from his previous employment
with Alamo Concessions.
      In September 2010, the Government filed a motion to dismiss and an
alternative motion for summary judgment, asserting the propriety of the
administrative forfeiture.   In January 2011, a magistrate court entered a
memorandum and recommendation for summary judgment in favor of the
Government. In March 2011, the district judge entered an order adopting the
magistrate judge’s recommendation and summary judgment was entered in



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                                  No. 11-50475

favor of the Government, thereby denying Conard’s motion to set aside the
administrative forfeiture and for return of the funds. This appeal ensued.
                               II. DISCUSSION
      A grant of summary judgment in a civil forfeiture proceeding is a question
of law subject to de novo review. United States v. Robinson, 434 F.3d 357, 361
(5th Cir. 2005). Summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
      The forfeiture proceedings in this case are governed by the Civil Asset
Forfeiture Reform Act (“CAFRA”). Under CAFRA, “the burden of proof is on the
Government to establish, by a preponderance of the evidence, that the property
is subject to forfeiture[.]” 18 U.S.C. § 983(c)(1). Further, if the Government’s
theory of forfeiture is that the property was involved in the commission of a
criminal offense, the Government must establish a “substantial connection”
between the property and the offense. Id. § 983(c)(3). The claimant then has the
burden of proving that he is an innocent owner by a preponderance of the
evidence. Id. § 983(d)(1).
      Pursuant to 19 U.S.C. § 1607, an agency seizing property with a value of
$500,000 or less may use administrative forfeiture procedures. In accordance
with the statute, the agency must publish notice of the seizure “for at least three
successive weeks in such manner as the Secretary of Treasury may direct.” Id.
§ 1607(a)(4). Additionally, “[w]ritten notice of seizure together with information
on the applicable procedures shall be sent to each party who appears to have an
interest in the seized article.” Id. After notice is given, a party has twenty days
in which to file a claim. Id. § 1608.
      If a claim is filed, the administrative forfeiture proceedings are cancelled
and referred to the United States Attorney’s Office for initiation of judicial
forfeiture proceedings. Robinson, 434 F.3d at 362. If no claim is filed, the seized

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property is deemed summarily forfeited. 19 U.S.C. § 1609(a). A declaration of
forfeiture under the statute shall have the same force and effect as a final decree
and order of forfeiture in a judicial forfeiture proceeding in a district court of the
United States. Id. § 1609(b).
      Once an administrative forfeiture is complete, the district court may
review only “whether the forfeiture comported with constitutional due process
guarantees.”    Taylor v. United States, 483 F.3d 385, 388 (2007) (quoting
Robinson, 434 F.3d at 362). If a party “with an interest in forfeited funds failed
to receive constitutionally adequate notice, the administrative forfeiture is void
and must be vacated.” Robinson, 434 F.3d at 362. To withstand scrutiny under
the Due Process Clause, the Government’s notice must be “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.” Taylor, 483 F.3d at 388 (quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)). Actual notice is not required. Dusenbery
v. United States, 534 U.S. 161, 170 (2002). “Although the Government is not
required to undertake ‘heroic efforts,’ it must fulfill Mullane’s command that the
effort be ‘reasonably calculated’ to provide notice.” Taylor, 483 F.3d at 388
(quoting Dusenbery, 534 U.S. at 170).
      When CAFRA was enacted in 2000, its statutory provisions became “the
exclusive remedy for seeking to set aside a declaration of forfeiture under a civil
forfeiture statute.” 18 U.S.C. § 983(e)(5).
      Conard does not argue that the notices sent by the DEA were not
reasonably calculated to apprise him of the pendency of the forfeiture
proceedings. Conard concedes in his final brief that the Government “followed
the necessary steps to send notice in a manner that generally satisfies due
process notice requirements.” Conard contends, however, that the district court
erred in failing to exercise its equitable jurisdiction to grant Conard’s motion to

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                                    No. 11-50475

set aside the administrative forfeiture and for the return of the subject currency.
Conard further contends that summary judgment was not appropriate in light
of his complaint that the Government’s actions during the administrative
forfeiture amounted to “outrageous governmental conduct.”                We are not
persuaded by either of these arguments.
      The evidence in the record indicates that the DEA adhered to CAFRA’s
statutory requirements and constitutional due process standards during the
administrative forfeiture proceedings against Conard. In addition to publishing
notice of the proceedings for three consecutive weeks in the Wall Street Journal,
the DEA sent two notices by certified mail to the residential address where
Conard was living when he was originally arrested on the charges associated
with this litigation. The DEA sent a third notice by certified mail to Conard’s
attorney which was received. The DEA sent a fourth notice by certified mail to
a second residential address which was discovered to have been associated with
Conard, which was received. Additionally, the fact that Conard was a fugitive
for a year, absconding from the jurisdiction of the courts from which he now
seeks relief, serves as a plausible explanation as to why Conard did not receive
two of the four attempted notices sent to him by the DEA.
      Further, because CAFRA provides the “exclusive remedy for seeking to set
aside a declaration of forfeiture under a civil forfeiture statute,” the district court
was deprived of its equitable remedy jurisdiction after CAFRA’s enactment in
2000. See 18 U.S.C. § 983(e)(5). Congress may deprive the federal courts of their
equitable remedy authority by establishing a comprehensive enforcement
scheme with exclusive remedies for a statutory violation. United States v.
Babcock, 250 U.S. 328, 331 (1919) (“where a statute creates a right and provides
a special remedy, that remedy is exclusive”). Consequently, the arguments
advanced by Conard with regard to the equitable remedy jurisdiction of the



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                                  No. 11-50475

district court, the majority of which rely on pre-CAFRA jurisprudence, are
foreclosed by CAFRA and will not be further considered by this court.
      Finally, in light of our conclusion that the DEA adhered to CAFRA’s
statutory requirements and constitutional due process standards during the
administrative forfeiture proceedings against Conard, we find Conard’s
secondary argument that the Government’s conduct was “outrageous” to be
without merit. See United States v. One Boeing 707 Aircraft, 750 F.2d 1280,
1284 (5th Cir. 1985) (holding that Appellant’s argument that the Government’s
conduct was so outrageous that the forfeiture of weapons was itself a denial of
due process was without merit).
                            III. CONCLUSION
      Accordingly, we AFFIRM the district court’s summary judgment in favor
of the Government, denying Conard’s motion to set aside the administrative
forfeiture.




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