                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 10a0395n.06

                                            No. 09-1893

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


In re: SEIZURE OF $143,265.78 FROM CHECKING               )
ACCOUNT NO. 1851349546 AND $28,687.40                     )
                                                                                FILED
FROM CHECKING ACCOUNT NO. 1080022185,                     )
                                                                             Jul 02, 2010
                                                                       LEONARD GREEN, Clerk
                                                          )
--------------------------------                          )
                                                          )
UNITED STATES OF AMERICA,                                 )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
         Respondent-Appellee,                             )        COURT FOR THE EASTERN
                                                          )        DISTRICT OF MICHIGAN
                  v.                                      )
                                                          )
COMERICA BANK,                                            )
                                                          )
         Claimant-Appellant.                              )
                                                          )

BEFORE: BOGGS, ROGERS, and COOK, Circuit Judges.

         ROGERS, Circuit Judge. Comerica Bank seeks to set aside the administrative forfeiture of

funds seized from two of its accounts when the account holders were indicted for visa forgery and

money laundering. Comerica Bank asserts that the Government provided inadequate notice of the

seizure and subsequent forfeiture of these funds, and in the alternative that a Comerica Bank

attorney’s communications to an Assistant U.S. Attorney constituted a timely and proper claim for

the funds. The district court correctly held, however, that Comerica Bank is not entitled to set aside

the forfeiture because the bank had notice of the seizure and because the attorney’s unsworn

communications to the AUSA did not independently constitute a valid claim.
No. 09-1893
In re: Seizure of $143,265.78


       Immigration and Customs Enforcement (ICE) seized $171,953.18 from two accounts at

Comerica Bank’s Livonia, Michigan branch when the account holders were indicted for visa forgery

and money laundering. In the weeks after the seizure, Comerica Bank’s attorney emailed a local

Assistant U.S. Attorney that Comerica Bank was “gathering/organizing the loan documents in

anticipation [of] subsequent forfeiture proceedings.” In that email, and in a subsequent letter sent

via U.S. mail, Comerica Bank’s attorney alleged that Comerica Bank had a security interest in the

funds, provided documentation for this alleged security interest, and requested that the AUSA notify

Comerica Bank’s attorney about proceedings involving these funds. Comerica Bank’s attorney

received neither a response to these communications nor notice of the forfeiture proceedings.

       Comerica Bank, however, did receive notice of the forfeiture. Customs and Border

Protection (CBP) sent a letter via certified U.S. mail to Comerica Bank’s Livonia branch notifying

Comerica Bank that, under 18 U.S.C. § 983(a)(2), it had 35 days to assert its interest in the seized

funds before its right to contest forfeiture would be extinguished. After more than 35 days had

passed, Comerica Bank’s attorney sent a letter to CBP “requesting remission of th[e] forfeiture

because [Comerica Bank] is an innocent owner and a victim of the criminal offense underlying the

forfeiture of this property.” Attached to this letter were a description of the funds seized, signed by

a Comerica Bank officer; loan documents purporting to demonstrate the bank’s interest in the funds;

and the attorney’s declaration, “under penalty of perjury that upon information and belief the

foregoing petition, including any attachments thereto, is true and correct in every respect.” CBP

denied Comerica Bank’s filing as untimely and improper, and later denied a supplemental filing that


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In re: Seizure of $143,265.78


included Comerica Bank’s attorney’s email and letter to the AUSA. Comerica Bank then moved in

the district court under 18 U.S.C. § 983(e) to set aside the forfeiture.

       At the district court’s hearing on the motion, another attorney for Comerica Bank described

the Government’s proof of mailing and the bank’s receipt of actual notice as follows:

       The Court: Did the [Livonia] branch get the letter?

       Ms. Ficks [for Comerica Bank]: They, to this day, never saw a letter, but I am not
       disputing that they have produced a notice that it was sent certified receipt.

       The Court: Who is they?

       Ms. Ficks: The U.S. Attorney’s Office. We sent them a FOIA request, your Honor.

       The Court: All right. So you got a green card.

       Ms. Ficks: Yes. A green card that was not signed. They sent it certified mail, not
       restricted (sic) mail.

       The Court: And it came back.

       Ms. Ficks: Yes.

       The Court: Indicating that it had been delivered.

       Ms. Ficks: Yes, yes.

       The Court: To the branch.

       Ms. Ficks: Yes, the branch in Livonia, your Honor.

       ...

       The Court: Well, at the . . . core of all of this is the desire for actual notification, isn’t
       that fair?

       Ms. Ficks: Yes, your honor, I think that is fair.

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       The Court: All right. Now, what you’re arguing to me this afternoon sounds like an
       indication that the client received the information, did not send it to the attorney soon
       enough, but the attorney had asked that as a backstop for that that the attorney be
       notified, as well, simultaneously, correct?

       Ms. Ficks: That would be fair.

       The Court. All right. And so the contention, it sounds to me, is that because
       procedures weren’t implemented to activate this backstop, failsafe, caution, that the
       actual notice sent to the client should be deemed improper, because the failure that
       you were trying to avoid eventuated, because the failsafe method wasn’t used. Is that
       pretty much it?

       Ms. Ficks: That is pretty much it, your Honor. . . .

       The district court denied Comerica Bank’s motion and concluded Comerica Bank had “actual

knowledge of the seizure” based on the Government’s seizure of the funds from accounts in

Comerica Bank’s possession, the Comerica Bank attorney’s prompt communications to the AUSA

after the seizure, and the bank’s acknowledgment that the Government had shown the bank received

the forfeiture notice.    In re: Seizure of $143,265.70 from Comerica Checking Account

No.1851349546 and $28,687.40 from Checking Account No. 1080022185, 616 F.Supp.2d 699, 705

(E.D. Mich. 2009). The district court concluded that Comerica Bank’s attorney’s communications

to the AUSA did not require CBP to notify Comerica Bank’s attorney of the forfeiture and that the

notice sent to Comerica Bank’s Livonia branch satisfied due process. Id. at 705-07. Although “it

would have been courteous . . . for the government to provide notice in accordance with Comerica’s

request,” the district court held that “[t]he mere fact that more could have been done does not make

the effort at notice constitutionally suspect.” Id. at 707. The district court also held that the

Comerica Bank attorney’s communications to the AUSA did not themselves constitute a valid claim

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In re: Seizure of $143,265.78


because they were not made under oath subject to penalty of perjury. Id. This timely appeal

followed.

       Comerica Bank may not set aside the forfeiture because, as the district court held, Comerica

Bank knew of the seizure within sufficient time to file a timely claim. Because no valid and timely

claim to the seized funds was filed in the agency, this forfeiture was resolved as an administrative

forfeiture proceeding in the CBP without resort to a judicial forfeiture proceeding in district court.

See Stefan D. Cassella, The Civil Asset Forfeiture Reform Act of 2000: Expanded Government

Forfeiture Authority And Strict Deadlines Imposed on All Parties, 27 J. Legis. 97, 105 (2001).

“Section 983(e) . . . set[s] forth an exclusive remedy for challenging a closed administrative

forfeiture on the ground that the claimant did not receive proper notice.” Id. at 107; see 18 U.S.C.

§ 983(e)(5). Under 18 U.S.C. § 983(e), “[a]ny person entitled to written notice in any nonjudicial

civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice” may

move to set aside a declaration of forfeiture of their interest in property, and the motion shall be

granted if “(A) the Government knew . . . 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 . . . of the seizure

within sufficient time to file a timely claim.”

       As the district court correctly held, Comerica Bank is not entitled to set aside the forfeiture

because the bank knew of the seizure of the funds within sufficient time to file a timely claim. As

the district court noted, the funds were actually seized from Comerica Bank and Comerica Bank’s

attorney promptly contacted the Government about subsequent forfeiture. Moreover, Comerica Bank


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conceded below that CBP did send notice to the Livonia branch and that the bank had actual notice

of the impending forfeiture. Therefore, although the result might differ if CBP had not notified the

bank, Comerica Bank is not entitled to set aside the declaration of forfeiture in this case.

        Comerica Bank refers to 18 U.S.C. § 983(a)’s “proper notice” standard, the standard that

controls the type of notice the Government must provide known potential claimants after seizure and

before forfeiture. If, as in this case, the deadline for filing a claim passes without a claim’s being

filed, a declaration of forfeiture is made. After a declaration of forfeiture is made, however, the

relevant inquiry is, as discussed above, whether a known potential claimant can set aside the

declaration of forfeiture under 18 U.S.C. § 983(e) by showing that the Government failed to take

“reasonable steps” to notify the claimant and that the claimant did not know of the seizure within

sufficient time to file a claim.

        Comerica Bank argues that Jones v. Flowers, 547 U.S. 220, 235 (2006), requires the

Government to take additional steps to notify Comerica Bank because the Government received only

a delivery confirmation for the notice sent to the Livonia branch, not a signed receipt. This argument

fails. In Jones, the Supreme Court held that, when the Government is “aware . . . that its attempt at

notice has failed”—such as when a document mailed via certified mail is returned marked

“unclaimed”—due process requires the Government to “take[] additional reasonable steps to notify

[an interested party] if practicable to do so.” Id. at 227, 234. Here, unlike in Jones, the Government

was not aware that its attempt at notice had failed; therefore, the Government was not required to

take additional reasonable steps to notify Comerica Bank.


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        Although 18 U.S.C. § 983(e) only refers to notice of seizure, Comerica Bank argues that the

Government must also notify interested parties of an impending forfeiture. Even if the Government

had some obligation to provide interested parties notice of forfeiture in addition to notice of seizure,

Comerica Bank is not entitled to set aside the forfeiture because the Government gave notice of the

impending forfeiture by certified mail with no indication that delivery failed.

        We need not decide whether Comerica Bank, despite its failure to comply with the 35-day

deadline set in CBP’s notice, could set aside the forfeiture based on its filing a claim within 30 days

of the final published notice of seizure. Under 18 U.S.C. § 983(a)(2)(B), a claimant who does not

receive a personal notice letter must file a claim within 30 days of the final published notice of

seizure. Assuming a claimant could appeal the agency’s decision that its claim is untimely—such

as, if the denied claim were filed within 30 days of the final published notice but not within the

deadline provided in a notice letter that the claimant alleges he did not receive—Comerica Bank

cannot set aside the forfeiture based on this argument because Comerica Bank conceded below that

it received the personal notice letter, and therefore the 35-day deadline provided in that notice

controls.

        Comerica Bank’s attorney’s email and letter to the AUSA do not constitute a claim to the

funds seized because these communications were not “made under oath, subject to penalty of

perjury” as 18 U.S.C. § 983(a)(2)(C) requires. Generally, an attorney’s signature does not fulfill a

client’s oath requirement because the oath must be made by a person with personal knowledge of

the facts alleged therein. United States v. Currency $267,961.07, 916 F.2d 1104, 1108 (6th Cir.


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1990); United States v. One Men’s Rolex Pearl Master Watch, 357 F. App’x 624, 628 (6th Cir.

2009). Moreover, the email and letter were not in the form of a claim.

        Although Comerica Bank may have substantially, albeit incompletely, complied with the

statute’s claim requirements, and the Government has notified potential claimants in other cases of

defects in their claims, the statute neither permits such substantial compliance nor requires the

Government to notify a claimant of defects in a purported claim. Therefore, Comerica Bank may

not set aside the forfeiture based on substantial compliance or the Government’s failure to notify it

of defects in its filing. Comerica Bank also correctly notes that the Government does not challenge

the authenticity and superiority of its interest in the funds and that its attorney’s letter to the AUSA

is similar to the bank’s petition for remission. These facts do not change Comerica Bank’s failure

to file a valid claim.

        United States v. $22,050.00 United States Currency, 595 F.3d 318 (6th Cir. 2010), is

inapposite. In United States v. $22,050, the claimant had submitted a valid claim with the agency

at the nonjudicial forfeiture stage, and the agency had referred the matter to the U.S. Attorney’s

Office for the filing of a complaint in a judicial forfeiture action. Id. at 319; see 18 U.S.C. §

983(a)(2)(C)(3). The U.S. Attorney’s Office filed the complaint in the judicial forfeiture action, and

the claimant failed to file a timely claim in the district court in response to that complaint. $22,050,

595 F.3d at 319. The Government sought, and was granted, default against the property, and

immediately upon receiving notice of default, the claimant filed a verified claim in district court and

moved to set aside the default. Id. This court held that, under Federal Rule of Civil Procedure 55,


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the claimant was entitled to set aside the default in the judicial forfeiture action because he was a

known claimant and because his untimely claim submitted to the district court complied with

statutory claim requirements. Id. at 323-34. Here, by contrast, Comerica Bank failed to file a proper

claim with the CBP at the nonjudicial forfeiture stage; therefore no judicial forfeiture action was

initiated, the forfeiture was resolved within the CBP, and Federal Rule of Civil Procedure 55 is

inapplicable.

       For the foregoing reasons, the district court’s decision is affirmed.




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