
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."                                         -3-            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                                         -4-            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.                                         -5-            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).                                         -6-                      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                                         -7-            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                                         -8-            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.                                         -9-
