           Case: 13-15381    Date Filed: 09/17/2014   Page: 1 of 6


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15381
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:10-cr-00039-RH-WCS-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

LAWRENCE BERRY, JR.,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                            (September 17, 2014)



Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Lawrence Berry, Jr. appeals pro se the denial of his motion for return of

property under Federal Rule of Criminal Procedure 41(g). On appeal (but not in

district court), Berry argues that the district court ought to have granted his motion

for return of property because he never received notice of the administrative

forfeiture of his truck and $1,000 cash by the Drug Enforcement Administration

(“DEA”). Berry was convicted of drug crimes. We see no reversible error.

      On appeal from the denial of a Rule 41(g) motion, we review questions of

law de novo and factual findings for clear error. United States v. Howell, 425 F.3d

971, 973 (11th Cir. 2005). Where a party invokes Rule 41(g) after the close of all

criminal proceedings, the motion for return of property is treated as a civil action in

equity. Id. We review de novo a district court’s determination of whether to

exercise its equitable jurisdiction. Mesa Valderrama v. United States, 417 F.3d

1189, 1194 (11th Cir. 2005). “Pro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and will, therefore, be liberally construed.”

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

      Money derived from illegal drug transactions and vehicles used to transport

drugs or to facilitate illegal drug transactions or both are subject to forfeiture. 21

U.S.C. § 881(a)(4), (6). A government agency that seizes property worth less than


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$500,000 must publish notice of the seizure “for at least three successive weeks in

such manner as the Secretary of the Treasury may direct.” 19 U.S.C. § 1607(a). In

addition, “[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 20 days to file a claim on the

property. Id. § 1608. If no claims are filed within that time, the agency may

declare the property forfeited and sell or otherwise dispose of it. Id. § 1609.

      A person aggrieved by an unlawful search and seizure of property may move

for its return. Fed.R.Crim.P. 41(g). A Rule 41(g) motion, however, is unavailable

when property is seized pursuant to civil forfeiture. United States v. Eubanks, 169

F.3d 672, 674 (11th Cir. 1999). When a party seeks relief from a civil forfeiture

under Rule 41(g), the district court -- even liberally construing the complaint -- can

only exercise jurisdiction over the claim “under two narrow circumstances.” Id.

First, it “may have jurisdiction when the agency refuses to consider a request that it

exercise its discretion” not to seek forfeiture. Id. Second, “federal courts under

limited circumstances may exercise equitable jurisdiction over agency forfeiture

decisions.” Id. As we have explained, “[t]he decision to exercise equitable

jurisdiction is highly discretionary and must be exercised with caution and

restraint. In other words, jurisdiction is appropriate only when the petitioner’s




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conduct and the merits of his petition require judicial review to prevent manifest

injustice.” Id. (citation omitted).

      The remedy for seeking to set aside a declaration of civil forfeiture is under

the Civil Asset Forfeiture Reform Act (“CAFRA”), codified in part at 18 U.S.C. §

983. Mesa Valderrama, 417 F.3d at 1195. Id. That statute provides:

      Any person entitled to written notice in any nonjudicial civil forfeiture
      proceeding under a civil forfeiture statute who does not receive such
      notice may file a motion to set aside a declaration of forfeiture with
      respect to that person’s interest in the property, which motion shall be
      granted if—

             (A)    the Government knew, or reasonably should have known,
                    of the moving party’s interest and failed to take
                    reasonable steps to provide such party with notice; and
             (B)    the moving party did not know or have reason to know of
                    the seizure within sufficient time to file a timely claim.

18 U.S.C. § 983(e)(1). In addition, under CAFRA, a claimant has the burden of

proving that he is an “innocent owner,” which means that he is an “owner who did

not know of the conduct giving rise to the forfeiture.” Id. § 983(d)(1), (2)(A)(i).

      We have determined that we lack jurisdiction to review the merits of

administrative or nonjudicial forfeitures under CAFRA. See Mesa Valderrama,

417 F.3d at 1196. Instead, our review is limited to “whether the agency followed

the proper procedural safeguards.” Id.

      Due process requires that individuals whose property interests are at risk due

to government action be given notice and an opportunity to be heard. Mullane v.


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Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94

L.Ed. 865 (1950). The notice necessary to satisfy due process 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.”

Id. at 314, 70 S.Ct. at 657. “Reasonable notice, however, requires only that the

government attempt to provide actual notice; it does not require that the

government demonstrate that it was successful in providing actual notice.” Mesa

Valderrama, 417 F.3d at 1197 (emphasis added).

      Here, the district court did not err by denying Berry’s motion for return of

the truck and money. Rule 41(g) is not an appropriate vehicle for the return of

property seized by civil forfeiture. The district court did not err in refusing to

exercise its equitable jurisdiction: the property was forfeited in accordance with

law in the light of the record, which reflects that the DEA attempted to provide

Berry with notice of the forfeitures; besides, any relief given to Berry would have

been inequitable by “return[ing] to a criminal the fruits of his crimes.” See United

States v. Machado, 465 F.3d 1301, 1307 (11th Cir. 2006), overruled on other

grounds by United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009); Mesa

Valderrama, 417 F.3d at 1197.

      Liberally construing Berry’s pro se motion as an action brought under

CAFRA, his claim fails. Even if Berry did not get actual notice and can properly


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advance the point on appeal, per the record, it appears he was given “reasonable

notice.” The district court did not err in refusing to invoke its equitable jurisdiction

and to return the truck and cash to Berry. See Machado, 465 F.3d at 1307; Mesa

Valderrama, 417 F.3d at 1195-97.

      AFFIRMED.




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