In the

United States Court of Appeals

For the Seventh Circuit

No. 98-3940

Edward Krecioch,

Plaintiff-Appellant,

v.

United States of America, Drug Enforcement 

Administration, Unknown Agents of the Drug

Enforcement Administration and United States 

Department of Justice,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 1121--James B. Zagel, Judge.

Argued April 21, 2000--Decided July 20, 2000

 Before Bauer, Kanne and Evans, Circuit Judges.

 Kanne, Circuit Judge. The Drug Enforcement

Administration ("DEA") claimed several

automobiles, $71,334 in cash and three handguns

from Edward Krecioch through administrative

forfeitures after he was arrested for drug

trafficking in 1992. Acting pursuant to 19 U.S.C.

sec. 1607, the DEA mailed written notices of the

administrative forfeitures by certified mail to

Krecioch’s residence. Two days later, Krecioch

pleaded guilty and his bond was revoked, sending

him to jail before the notices arrived at his

home. Krecioch filed a collateral attack on the

administrative forfeitures in district court and

argued that the DEA deprived him of due process

by failing to provide actual notice of the

pending proceedings when he was jailed. The

district court granted summary judgment for the

DEA, finding that the DEA discharged its due

process obligations. We agree with respect to all

the forfeitures except that of Krecioch’s

weapons. 

I. History

 The DEA monitored Krecioch and William Truhlar’s

cocaine trafficking operation for more than a

year before arresting Truhlar on July 8, 1992.

That day, in Krecioch’s presence, the DEA seized
$2,150 in cash, a 1989 Lincoln limousine and a

1988 Chevrolet Blazer from the operation’s main

place of business, Billy T’s Limousine Service in

Palos Hills, Illinois. The DEA later that day

seized two kilograms of cocaine, marijuana,

assorted drug paraphernalia, three handguns and

$69,184 from Krecioch’s residence. The DEA

arrested Krecioch on July 13, 1992, and he was

released on $100,000 bond.

 In August, the DEA initiated administrative

forfeiture actions against the seized property.

Finding sufficient connection under 21 U.S.C.

sec. 881 between the property and drug-related

crimes, the federal government exercised its

authority to seize "[a]ll moneys . . . furnished

or intended to be furnished by any person in

exchange for a controlled substance," "[a]ll . .

. vehicles . . . used, or are intended for use,

to transport, or in any manner to facilitate the

transportation, sale, receipt, possession, or

concealment" of a controlled substance and "any

firearm . . . used or intended to be used to

facilitate the transportation, sale, receipt,

possession, or concealment" of a controlled

substance. 21 U.S.C. sec. 881(4), (6), (11). Each

of the seized properties in this case was valued

at $500,000 or less, so 19 U.S.C. sec. 1607

permitted the government to opt for

administrative forfeiture instead of judicial

forfeiture proceedings in district court.

Although it authorizes the government to execute

forfeiture actions outside of court supervision,

19 U.S.C. sec. 1607 also requires that "[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." 19 U.S.C. sec. 1607. Any

potential claimant is then entitled to file for

remission or mitigation of the forfeitures under

19 U.S.C. sec. 1618, or file a claim in district

court under 19 U.S.C. sec. 1608 to contest the

forfeitures through judicial proceedings. 

 On August 10, 1992, the DEA sent by certified

mail to Krecioch’s home address written notices

of the forfeiture actions against the 1989

Lincoln limousine, 1988 Chevrolet Blazer and

$71,334 cash. His sister Camille Krecioch signed

the return receipts on August 14 and 15 but

apparently did not convey the notices to Krecioch

or inform him of the forfeiture proceedings. The

DEA also mailed the notices for the 1989 Lincoln

limousine and $2,150 cash to Krecioch’s business

address, where Truhlar’s wife signed the return

receipts. In addition, the DEA began publishing

the notices of forfeitures in the national

newspaper USA Today for three consecutive weeks

as required by 21 C.F.R. sec. 1316.75. 
 On August 10, the day of the mailings, Krecioch

was free on bond and living at home. Krecioch had

been offered a plea bargain but never signed the

proffered plea agreement. It was not until his

hearing on August 12, 1992, that Krecioch agreed

to plead guilty to drug-trafficking and firearms

charges. The district court revoked bond, sending

him immediately to jail, and later sentenced

Krecioch to ten years imprisonment and five years

supervised release. On September 2, 1992, the DEA

seized a 1984 Chevrolet Corvette from Krecioch’s

residence and mailed written notice of the

seizure to Krecioch both at his residence and at

the Chicago Metropolitan Correctional Center

("MCC"), where he was incarcerated. In addition,

on September 8, 1992, the DEA sent written notice

for the forfeiture action against the weapons to

Krecioch’s home address, where his mother signed

the return receipt, but not to the MCC. 

 Krecioch did not file a claim under 19 U.S.C.

sec. 1608, which would have required the DEA to

refer the forfeiture actions to the United States

Attorney’s Office for judicial forfeiture

proceedings under 19 U.S.C. sec. 1603(b). As a

result, the DEA issued declarations of

administrative forfeiture and claimed title to

the seized property under 19 U.S.C. sec. 1609(b).

Five years later, Krecioch sued in district court

and mounted a collateral attack on the

administrative forfeitures, arguing that the

forfeitures were ineffective because the DEA had

failed to give him adequate notice required by

the Due Process Clause of the Fifth Amendment.

The district court granted summary judgment for

the government, and Krecioch now appeals. 

II. Analysis

 Krecioch argues that the DEA violated his due

process rights by failing to provide actual

notice of the administrative forfeitures.

Krecioch does not dispute that notice via

certified mail is typically sufficient for due

process purposes, see, e.g., Mennonite Bd. of

Missions v. Adams, 462 U.S. 791, 800 (1983), and

he does not challenge the notice, mailed to him

in jail, for the Corvette. Krecioch challenges

the constitutional adequacy of the written

notices sent to his residence regarding only the

seizures of the 1989 Lincoln limousine, 1988

Chevrolet Blazer, cash and weapons. 

 With respect to the notices for the two

automobiles and cash, Krecioch argues the DEA

knew or should have known on August 10, 1992,

when it mailed the written notices, that the

notices would arrive at his residence after he

had been jailed and that he would not receive

them. Krecioch contends that the DEA officer who
appeared at his hearing on August 12 should have

served him at the hearing. With respect to the

notice for the weapons, Krecioch asserts that the

written notice mailed to his residence was

inadequate because the DEA knew at the time of

mailing on September 8, 1992, that he had been

jailed and would not receive it. Krecioch

contends that the DEA notices of the forfeiture

actions against his property thereby violated due

process and the forfeitures should be overturned.

Although the DEA executed the forfeitures through

administrative rather than judicial proceedings,

federal courts possess jurisdiction to review

collateral due process attacks on administrative

forfeitures, see Weng v. United States, 137 F.3d

709, 713 (2d Cir. 1998); United States v.

Woodall, 12 F.3d 791, 793 (8th Cir. 1993), and we

review de novo the district court’s grant of

summary judgment. See Sarit v. U.S. Drug

Enforcement Admin., 987 F.2d 10, 13 (1st Cir.

1993). 

 The Supreme Court announced the standard for

due process in Mullane v. Central Hanover Bank &

Trust, Co., 339 U.S. 306, 314 (1950): "An

elementary and fundamental requirement of due

process in any proceeding which is to be accorded

finality is notice 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."

The operative question is whether notice was

adequate at the time that the notice was sent,

and due process is not satisfied "if the

notifying party knew or had reason to know that

notice would be ineffective." Sarit, 987 F.2d at

14. However, due process does not require actual

notice, so long as the government "acted

reasonably in selecting means likely to inform

the persons affected." Weigner v. City of New

York, 852 F.2d 646, 649 (2d Cir. 1988).

 Notice of forfeiture by mail to the claimant’s

residence is inadequate if the government knew

that the claimant would not receive it. See Small

v. United States, 136 F.3d 1334, 1338 (D.C. Cir.

1998); United States v. Rodgers, 108 F.3d 1247,

1252-54 (10th Cir. 1997); Woodall, 12 F.3d at

794; cf. Schluga v. City of Milwaukee, 101 F.3d

60, 63 (7th Cir. 1996). When the government mails

a notice to an address at which it knows the

claimant not to be, the notice typically violates

due process because it is not reasonably

calculated to apprise the claimant of the action.

See United States v. Giraldo, 45 F.3d 509, 511

(1st Cir. 1995); Woodall, 12 F.3d at 794. If it

does nothing more, the government knows for fact

that the claimant will never receive notice. When

the government does not know or reasonably cannot

discover the claimant’s whereabouts, the
government may satisfy due process with mere

publication of a forfeiture notice. See Mullane,

339 U.S. at 317-19. However, when the claimant is

incarcerated or in government custody, the ease

of learning the claimant’s location makes it in

most cases "unreasonable for the forfeiting

agency to fail to ascertain the location of one

it knows to be in government custody." Weng, 137

F.3d at 714. Thus, the government violates due

process when it purposely mails notice of

forfeiture to the claimant’s residence knowing

that the claimant is incarcerated or in federal

custody. See Robinson v. Hanrahan, 409 U.S. 38,

40 (1972); Giraldo, 45 F.3d at 511; Torres v.

$36,256.80 U.S. Currency, 25 F.3d 1154, 1160-61

(2d Cir. 1994). 

 Krecioch was not incarcerated or in federal

custody until after the DEA mailed the forfeiture

notices for the cash and the two automobiles to

his home, and the DEA could not have known that

Krecioch would decide to plead guilty two days

after the mailings, see his bond revoked and

immediately be jailed in Chicago. All this was

uncertain at the time of mailing because Krecioch

had not consented to a plea agreement. The DEA

knew only that Krecioch was free on bond and

residing at the address to which the notices were

sent. There is no evidence that the DEA knew or

should have known at the time of mailing that

notice would be ineffective, and absent

exceptional circumstances, written notice of

forfeiture by certified mail to the claimant’s

residence satisfies due process even if the

claimant does not receive actual notice as a

result. See United States v. Clark, 84 F.3d 378,

381 (10th Cir. 1996); Sarit, 987 F.2d at 14-15.

However, notice for Krecioch’s weapons was

inadequate because the DEA mailed it to his

residence later, on September 8, when the DEA

knew that Krecioch was jailed at the MCC and no

longer living at his home address. On this basis,

we vacate summary judgment on Krecioch’s due

process claim for his weapons but affirm summary

judgment on his claims for the automobiles and

cash. 

 Krecioch cites United States v. Cupples, 112

F.3d 318, 320 (8th Cir. 1997), in which the

Eighth Circuit required actual notice when "the

government is prosecuting someone who is actively

contesting the criminal charges against him,

including a count of the indictment seeking

forfeiture." He insists that the DEA could have

easily effected actual notice by having the DEA

officer at his August 12 hearing give him actual

notice. We agree that this would have been

preferable for due process purposes, but due

process "does not, of course, require that

authorities use the best possible method of
notification." Towers v. City of Chicago, 173

F.3d 619, 628 (7th Cir. 1999). Krecioch was

entitled only to notice "reasonably calculated,

under all the circumstances, to apprise" him of

the forfeiture actions. Mullane, 339 U.S. at 314.

To the degree that Cupples requires actual notice

even when the claimant is free and available at

his home address, we disagree because due process

requires only that the government reasonably

believed that notice would be likely to reach

Krecioch. See Schluga, 101 F.3d at 63. In the

absence of bad faith, the forfeiture notices sent

by certified mail on August 10 to his thencurrent address, received by his family members

and combined with newspaper publication, were

sufficient to satisfy the Mullane standard for

notice. 

III. Conclusion

 For the foregoing reasons, we Affirm summary

judgment with respect to the forfeiture of the

automobiles and cash but Reverse summary judgment

with respect to the three weapons seized from

Krecioch’s home on July 8, 1992, and Remand for

further proceedings.