2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-24-2000

United States v. One Toshiba Color Television

Precedential or Non-Precedential:

Docket 98-3578 & 983579

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"United States v. One Toshiba Color Television" (2000). 2000 Decisions. Paper 109.

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Filed May 24, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NOS. 98-3578 and 98-3579 

UNITED STATES OF AMERICA 

v. 

ONE TOSHIBA COLOR TELEVISION; TWO ANSWERING 

MACHINES; ONE HEALTH TECH COMPUTER 

*Reginald McGlory, Appellant in No. 98-3578 

*(Pursuant to Rule 12(a), F.R.A.P.) 

(D.C. Civ. No. 90-cv-00138) 

UNITED STATES OF AMERICA 

v. 

ASSORTED JEWELRY 

*Reginald McGlory, Appellant in No. 98-3579 

*(Pursuant to Rule 12(a), F.R.A.P.) 

(D.C. Civ. No. 90-cv-00370) 

On Appeal From the United States District Court 

For the Western District of Pennsylvania 

District Judge: Honorable D. Brooks Smith 

Submitted Under Third Circuit LAR 34.1(a) 

July 13, 1999 

Before: BECKER, Chief Judge, ROTH and RENDELL, 

Circuit Judges. 
ARGUED EN BANC: November 8, 1999 

Before: BECKER, Chief Judge, SLOVITER, MANSMANN 

GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, 

McKEE, RENDELL and BARRY, Circuit Judges. 

(Filed May 24, 2000) 

 MICHAEL A. YOUNG, ESQUIRE 

 (ARGUED) 

 165 Christopher Street 

 New York, NY 10014 

 Counsel for Appellant 

 HARRY LITMAN, ESQUIRE 

 (ARGUED) 

 United States Attorney 

 BONNIE R. SCHLUETER 

 MARY McKEEN HOUGHTON, 

 ESQUIRE 

 Assistant United States Attorney 

 633 United States Post Office and 

 Courthouse 

 Pittsburgh, PA 15219 

 Counsel for Appellees 

OPINION OF THE COURT 

BECKER, Chief Judge. 

In these consolidated appeals Reginald McGlory 

challenges the results of two forfeiture proceedings. The 

first appeal requires that we revisit the question of the 

notice that the United States must provide when it pursues 

forfeiture proceedings against the property of an 

incarcerated defendant in its custody. The second concerns 

the District Court's use of the doctrine of laches to prevent 

McGlory from challenging a forfeiture proceeding in which 

the notice given for the forfeiture is later discovered to be 

constitutionally inadequate. 

 2 
In the first appeal, which concerns forfeiture of certain 

items of jewelry, the government directed notice by certified 

mail to the facility in which McGlory was incarcerated. 

McGlory maintains that he did not receive the notice, and 

that the government should have ensured that he received 

personal notification of the proceedings against his 

property. In United States v. McGlory, 202 F.3d 664 (3d Cir. 

2000) (en banc), which involved different property of 

McGlory's that was subject to administrative forfeiture, this 

Court ruled that merely sending notice to the Marshals 

Service, in whose custody McGlory was held, did not satisfy 

the Constitution. We held that "at a minimum, due process 

requires that when a person is in the government's custody 

and detained at a place of its choosing, notice of a pending 

administrative forfeiture proceeding must be mailed to the 

detainee at his or her place of confinement." Id. at 674. We 

noted, however, that "[w]hether anything more is required 

is not presently before us." Id. This appeal squarely 

presents the question whether "more" is required. McGlory 

asks that we rule the judicial forfeitures at issue in this 

case invalid because he did not receive actual notice of the 

proceedings. 

As in all cases in which proper notice under the Due 

Process Clause is at issue, the touchstone of analysis is 

whether the notice was "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." Mullane v. Central Hanover Bank 

& Trust, Co., 339 U.S. 306, 314 (1950). The government 

urges that mailing a letter by first-class mail to the location 

of the interested party is always sufficient. McGlory, in 

contrast, argues that a higher standard should prevail 

when the party is held in custody by the same government 

that wishes to serve notice upon him. He maintains that 

the government was in the position to ensure actual notice 

of the proceedings. Such notice has been required by 

several of our sister circuits, most notably by the Second 

Circuit in Weng v. United States, 137 F.3d 709 (2d Cir. 

1998). 

Though there is much to recommend the actual notice

standard when the United States Attorney is dealing with 

 3 
federal prisoners and detainees, we are not prepared to 

require the government to bear the evidentiary burden of 

establishing actual notice in all cases. Such a 

 780<!>demonstration could impose needless litigation costs, 

especially if the due process challenge arises years after the 

conclusion of the initial proceedings. Moreover, the 

Supreme Court has never required the demonstration of 

actual notice. At all events, the jurisprudence of 

constitutional notice appropriately focuses not on what 

actually occurred, but rather on the procedures that were 

in place when notice was attempted. Evaluating the 

adequacy of these procedures requires consideration of the 

context in which they occur. 

We conclude that the circumstances surrounding the 

federal government's incarceration of a prisoner require 

greater efforts at ensuring notice than would be expected 

for individuals at liberty in society. When one is in prison, 

the relative difficulty to the government to effect actual 

notice is reduced, while the ability of prisoners to ensure 

that they receive notices directed to them suffers. However, 

we stop short of the Weng standard and adopt an approach 

that focuses on the extent that procedures are reasonably 

likely to effect actual notice. Under this regime, the 

government's obligations do not end at the mailbox. Rather, 

we hold that if the government wishes to rely on direct 

mail, it bears the burden of demonstrating that procedures 

at the receiving facility were reasonably calculated to deliver 

the notice to the intended recipient. On this record, we 

cannot determine whether such a system was in place in 

McGlory's facility. We will therefore vacate the judgment 

and remand to the District Court for further factual 

findings on the sufficiency of the notice. 

In the second forfeiture now before us, which concerns 

certain electronic equipment, the notice provided to 

McGlory concededly fell short of the constitutional

minimum. The government contends, however, that 

McGlory's attempt to recover the forfeited property is barred 

by the doctrine of laches, and the District Court agreed. We 

conclude that the doctrine of laches should not be 

considered when the issue is whether a judgment is void. If 

McGlory unreasonably delayed in seeking the recovery of 

 4 
his property, the proper time to raise the issue is in a 

proceeding in which he seeks recovery from the 

government. The District Court will have to consider 

whether such recovery is available by a motion to vacate 

that arises under Fed. R. Civ. Proc. 60(b) or if McGlory will 

have to proceed by other means. We will therefore vacate 

the District Court's judgment that McGlory's action was 

barred by laches. 

I. 

This is the third time that forfeitures of McGlory's 

property have come before this Court, and the facts

surrounding his arrest and detention are described several 

times in the Federal Reporter, most recently in United 

States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc); 

see also United States v. $184,505.01, 72 F.3d 1160 (3d 

Cir. 1995); United States v. McGlory, 968 F.2d 309 (3d Cir. 

1992) (upholding McGlory's criminal conviction and 

sentence). We therefore need not rescribe this story save for 

the highlights. 

On September 8, 1989, Pittsburgh police officers and 

Drug Enforcement Administration agents arrested McGlory 

for conspiracy to possess heroin with intent to distribute. 

He was ultimately convicted of conspiracy to possess and 

distribute heroin, possession of heroin with intent to 

distribute, possession of a firearm by a convicted felon, use 

of a firearm in a drug trafficking operation, and laundering 

drug proceeds. He received a life sentence. On the date of 

his arrest, the officers searched several residences used by 

McGlory and seized numerous items of property, including, 

at issue in this appeal, one Toshiba color television set, two 

answering machines, one Health Tech computer, and 

assorted jewelry. In 1990, the United States Attorney 

instituted civil judicial forfeiture actions against these items 

under 21 U.S.C. S 881. 

Until McGlory was sentenced on February 11, 1991, he 

was in the custody of the United States Marshals Service, 

and was housed in various detention facilities with which it 

had contracted. In initiating the forfeiture against the 

jewelry, the government mailed notice of the action to 

 5 
McGlory care of the Ohio County Jail in Wheeling, West 

Virginia, where he was apparently being held at the time. 

The notice was received at the jail on November 9, 1990 

and signed for by one of the jail's officers. The government 

also sent notice to the jail by regular mail and mailed notice 

by certified mail to one of McGlory's pre-incarceration 

residences. That letter was not accepted. Finally, the 

government sent notice to McGlory's ex-wife, and to an 

attorney by the name of William Magann,1 and it published 

notice for three consecutive weeks in a general circulation 

newspaper. No one filed a claim or answer as directed by 

the notice to those seeking to contest the forfeiture. A 

default judgment was entered in the government's favor on 

January 7, 1991. The government ultimately sold the

jewelry for $9,950. 

The government also initiated forfeiture proceedings 

against the television set and the other equipment, mailing 

the notice to an address used by McGlory. The government 

also sent notice to McGlory's mother and Magann and

published notice in a newspaper. This proceeding was 

resolved by default judgment in the government's favor on 

May 31, 1990. 

McGlory maintains that he never received any notice, and 

he was unaware of any of the forfeiture proceedings until 

December 1993. On April 11, 1994, he filed a pro se motion 

pursuant to Fed. R. Crim. Proc. 41(e), seeking return of all 

the property that had been seized from him. The District 

Court dismissed the motion without prejudice on January 

6, 1997, and McGlory promptly filed a motion to reconsider 

the denial of his 41(e) motion. Shortly thereafter, he filed a 

motion to vacate the judgments in the two earlier 

proceedings. The Magistrate Judge to whom the case was 

assigned concluded that no constitutional notice violation 

occurred in the jewelry forfeiture proceeding, but that there 

was a violation in the proceeding concerning the electronic 

equipment. Notwithstanding this conclusion, he 

recommended that this claim be dismissed based on the 

_________________________________________________________________ 

1. In proceedings below, McGlory claimed not to know who Magann is, 

and the government does not contend that he represented McGlory in 

this matter. 

 6 
doctrine of laches because: (a) McGlory had inexcusably 

delayed seeking recovery of the property; and (b) this delay 

was prejudicial to the government. Relying on the 

 780<!>Magistrate Judge's report, the District Court denied 

McGlory's motion to vacate the judgments on September 

23, 1998. McGlory filed a timely notice of appeal. 

The District Court had jurisdiction over the forfeiture 

proceedings under 28 U.S.C. SS 1331, 1345, and 1355, and 

over the motion to vacate judgment under 28 U.S.C. 

S 1331. We have jurisdiction to review the District Court's 

final order under 28 U.S.C. S 1291. Our review over

constitutional issues is plenary, see United States v. 

Various Computers & Computer Equip., 82 F.3d 582, 589 

(3d Cir. 1996), as is our review of the legal components of 

the laches issue, see Bermuda Express, N.V. v. M/V Litsa 

(Ex. Laurie U), 872 F.2d 554, 557 (3d Cir. 1989). 

II. 

The central issue in the appeal from the jewelry forfeiture 

is whether a pretrial detainee is entitled to actual notice of 

judicial forfeiture proceedings initiated against him.2 The 

District Court concluded that attempting service in jail via 

the mail satisfied constitutional requirements for the 

service of notice. It primarily relied upon two cases. First, 

it looked to our opinion in United States v. $184,505.01, 72 

F.3d 1160 (3d Cir. 1995), another McGlory forfeiture case, 

which taught that the government must at least attempt 

service on an incarcerated defendant in the place where he 

is being detained. Second, it cited Herbert v. United States, 

1996 WL 355333 (E.D. Pa. June 25, 1996), aff 'd without 

opinion, 103 F.3d 114 (3d Cir. 1996), which declared that 

notice to the prison in which the defendant was 

incarcerated met due process requirements. Because it was 

_________________________________________________________________ 

2. The relevant precedents in this area involve both judicial and 

administrative forfeitures. Insofar as both judicial and administrative 

forfeiture proceedings carry the potential to affect the property rights 

of 

the owner, there would appear to be no reason to distinguish between 

the notice required by the Due Process Clause in the two situations. At 

all events, the issue presented in this appeal solely concerns judicial 

forfeitures. 

 7 
not affirmed by a published opinion, Herbert is not 

precedential under our Internal Operating Procedures. See, 

e.g., United States v. Breyer, 41 F.3d 884, 892 n.11 (3d Cir. 

1994); IOP S 6.2.1 (2000 ed.). The District Court 

nevertheless reasoned that the two cases indicate that, in 

this circuit, attempting service by mail to a prisoner in jail 

meets due process requirements. 

We have never addressed the specific claim that McGlory 

urges upon us now. Our most recent pronouncement on

the issue, which also involved McGlory, held no more than 

that the government agency pursuing the forfeiture must 

send notice to the facility at which the detainee is actually 

incarcerated and that it may not rely on another agency to 

do so. See United States v. McGlory, 202 F.3d 664 (3d Cir. 

2000) (en banc). We turn then to consideration of whether 

due process requires the government to go further and 

provide actual notice to an incarcerated defendant against 

whom it has initiated forfeiture proceedings. 

A. 

Our analysis perforce begins with Mullane v. Central 

Hanover Bank & Trust, Co, 339 U.S. 306 (1950), which 

established the framework for evaluating the adequacy of 

notice for due process purposes. As described by the 

Supreme Court, the judgment is a highly contextual one. 

"An elementary and fundamental requirement of due 

process in any proceeding which is to be accordedfinality 

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." 

Id. at 314 (emphasis added). A person or entity seeking to 

give notice must employ means "such as one desirous of 

actually informing the absentee might reasonably adopt to 

accomplish it." Id. at 315. 

Under this framework, it is clear that when an 

incarcerated individual is the one being served, the serving 

party must attempt to effect service where the prisoner may 

be found--that is, in prison, not the pre-incarceration 

address. See Robinson v. Hanrahan, 409 U.S. 38, 40 (1972) 

(per curiam). As the Magistrate Judge's report recounted, 

 8 
this Court has ruled that notices in other forfeiture 

proceedings involving McGlory were inadequate when they 

did not attempt to reach him where he was incarcerated. 

See United States v. $184,505.01, 72 F.3d 1160 (3d Cir. 

1995). 

B. 

The government argues that precedent supports the 

conclusion that direct mail always satisfies due process 

requirements. Indeed, Supreme Court authority indicates 

that mailing to the location where the party can be found 

usually suffices for due process purposes. See Mullane, 339 

U.S. at 318. In Mennonite Bd. of Missions v. Adams, 462 

U.S. 791, 800 (1983), the Court opined, "[n]otice by mail or 

other means as certain to ensure actual notice is a

minimum constitutional precondition to a proceeding which 

will adversely affect the liberty or property interests of any 

party . . . if its name and address are reasonably 

ascertainable." The government points to this language and 

to Tulsa Professional Collection Services v. Pope, 485 U.S. 

478 (1988), for the proposition that notice by direct mail 

suffices to establish its successful discharge of its 

obligations to McGlory under the Due Process Clause. See 

id. at 490 ("We have repeatedly recognized that mail service 

is an inexpensive and efficient mechanism that is 

reasonably calculated to provide actual notice."). 

While this argument carries strong surface appeal, it 

ignores the framework that Mullane decreed. Precedents 

endorsing direct mail as a means of meeting constitutional 

notice requirements in certain contexts do not establish 

that such mailings result in per se satisfaction of notice 

requirements. Adequacy of notice is always evaluated by 

reference to the surrounding circumstances. See Mullane, 

339 U.S. at 314. "The focus is on the reasonableness of the 

balance, and, as Mullane itself made clear, whether a 

particular method of notice is reasonable depends on the 

particular circumstances." Tulsa Professional Collection 

Serv., 485 U.S. at 484. For example, in Covey v. Town of 

Somers, 351 U.S. 141, 146-47 (1956), the Supreme Court 

held that notice sent to an incompetent taxpayer was 

inadequate, notwithstanding that the notice was sent by 

 9 
direct mail. Though the facts of Covey are not, of course, 

analogous to the case at hand, that case's disposition 

stands as a stark example of the imprudence of gleaning 

from Supreme Court precedent a per se rule that mail will 

always be adequate notice. The proper effort at giving 

notice, the effort "such as one desirous of actually 

informing the absentee might reasonably adopt to 

accomplish it," Mullane, 339 U.S. at 315, will vary under 

the circumstances. 

C. 

Our sister circuits have differed on what kind of notice is 

the constitutional minimum for incarcerated individuals 

whose property is subject to forfeiture. United States v. 

Clark, 84 F.3d 378, 380 (10th Cir. 1996), involved the 

government's attempt to serve notice of an administrative 

forfeiture to a pre-trial detainee by mailing it to the facility 

where he was actually held. The Tenth Circuit held that 

this notice met the demands of due process, even if the 

party served did not actually receive the mailed notice. See 

id. at 381. In concluding that the notice was sufficient, the 

court employed a logic similar to that urged by the

government and pointed to the Supreme Court's indication 

in Mennonite Bd. of Missions that mail is a constitutionally 

acceptable form of notice. See id. "We have found no case 

suggesting that service by mail is inadequate or requiring 

the government to personally serve an interested party at 

the place of incarceration. We decline to create such a 

requirement here." Id. 

Other courts of appeals, however, have required more. In 

Weng v. United States, 137 F.3d 709 (2d Cir. 1998), the 

Second Circuit announced a requirement of actual notice. 

Weng involved several administrative forfeiture notices, one 

of which was sent by certified mail to the federal facility at 

which the defendant was detained. See id. at 714. The 

court determined that Mullane's balancing analysis 

compelled more. Noting the importance of the property 

interest at stake to the party notified and his inability to 

rely on others to vindicate those interests, see id. at 714- 

15, the court declared that the interests and burdens on 

the other side of the scale were less pronounced."[A]t least 

 10 
where the owner is in federal custody on the very charges 

that justify a federal agency in seeking the forfeiture, there 

is no undue hardship to the agency in insuring that the 

owner-prisoner actually receive the legally required 

notification." Id. at 715. The court further noted the 

disparity in the parties' relative ability to take precautions 

to ensure the prisoner's receipt of notice. 

 First, as a prisoner, the owner is unable to insure that 

 he will receive the notice once the post office has 

 delivered it to the institution. The owner is entirely 

 dependent on the institution to deliver his mail to him. 

 Second, because the owner's jailor--the Bureau of 

 Prisons--is part of the same government . . . as the 

 agency seeking to give notice, the forfeiting agent can 

 in all probability easily secure the Bureau's cooperation 

 in assuring that the notice will be delivered to the 

 owner and that a reliable record of the delivery will be 

 created. 

Id. 

The court concluded that, under the circumstances, 

merely sending notice to the detention facility without 

ensuring actual delivery to the prisoner is not notice "such 

as one desirous of actually informing [the owner] might 

reasonably adopt." Id. (quoting Mullane, 339 U.S. at 315). 

Instead, the court held that when the prisoner is in federal 

custody on the charges that are the basis of the forfeiture, 

"mailing of a notice to the custodial institution is not 

adequate unless the notice is in fact delivered to the 

intended recipient." Id.; see also United States v. Woodall, 

12 F.3d 791, 794-95 (8th Cir. 1993) ("[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."). 

As Weng recites, the circumstances of prisoners differ 

greatly from free citizens, a fact that potentially alters the 

evaluation of what steps are reasonably calculated to 

 11 
provide notice. When an individual is incarcerated at a 

location of the government's choosing, the government's 

ability to find and directly serve him or her with papers is 

at or near its zenith. Not only does the government know 

where to find the person, it can be equally sure that he or 

she will be there when the papers are delivered. Indeed, it 

can even move the person to a more convenient location if 

it so chooses. This appears especially the case where, as 

here, ongoing criminal proceedings against the prisoner 

brought the prisoner into frequent face-to-face contact with 

government attorneys. 

For his part, a prisoner lacks the ability to take steps to 

ensure that his mail is actually delivered to him. This 

dilemma is especially acute for a prisoner who may be 

transferred from facility to facility, complicating efforts to 

effect service. In the outside world, an individual who 

changes addresses can arrange to have mail forwarded and 

can notify interested parties as to the change of address. 

While a prisoner may take similar steps, the effectiveness of 

these measures may depend in some degree on such 

independent factors as prison policies vis-a-vis the 

forwarding of mail or the amount of forewarning a prisoner 

receives of an impending transfer. We also note that a 

prisoner may not know how long he or she will be at the 

changed address, which may make prison forwarding 

difficult. Shades of the same problem also exist for a 

prisoner who is not moved, but remains at one facility. If a 

person lives in an apartment building where the 

distribution of mail among the residents leads to lost 

missives, that person has some recourse, through 

complaint or, possibly, moving elsewhere. Such options are 

necessarily curtailed for the prisoner. 

The relative burdens and benefits of additional steps to 

ensure actual notice, therefore, suggest that requiring 

greater efforts at assuring notice by the government is 

appropriate. In other words, there is much to commend the 

Weng approach, and as an aspiration, the Weng rule 

comports with our ideas of the sort of effort that the 

government should undertake when it wishes to effect 

notice of a forfeiture proceeding against a prisoner in 

federal custody. On the other hand, Weng involved a

 12 
prisoner held in a federal, rather than a state, facility. As 

the Seventh Circuit has observed, "[t]he prophylactic Weng 

rule, requiring actual notice, becomes less reasonable as 

the federal government exercises less control over the 

detainee." Donovan v. United States, 172 F.3d 53, 1999 WL 

50847, at *2 (7th Cir. Feb. 2, 1999). The rejoinder to this 

argument is that, though McGlory was held in a state 

facility, he was held pursuant to his arrest on federal 

charges, and in contracting with state facilities to house 

pre-trial detainees, the federal government has the ability to 

demand procedures that will allow the delivery of adequate 

notice for prisoners. 

Though attractive, the Weng rule does present problems. 

The real difficulty with the Weng rule lies not in requiring 

the government to demonstrate actual notice, but rather 

the evidentiary burden that such a standard could impose 

after the passage of time. Given the temporal gap that may 

separate a forfeiture from a due process challenge to the 

proceedings, it is easy to imagine situations in which proof 

of the delivery of notice may be unavailable, even if such 

notice was properly served. An overly strict notice

requirement, therefore, could lead to unsettling the 

outcome of completed proceedings based on nothing but 

bare allegations of a party who had lost property. 

More importantly, the Weng approach undermines the 

procedural analysis that has heretofore animated the 

Supreme Court's dictates on this subject. The Court has 

never employed an actual notice standard in its 

jurisprudence. Rather, its focus has always been on the 

procedures in place to effect notice. See, e.g. , Mennonite Bd. 

of Missions, 462 U.S. at 799-80.3 We think this focus 

appropriate. Thus, while we will not adopt the Weng rule, 

the concerns animating Weng will inform our decision as to 

the procedures designed to give notice. We hold that, while 

_________________________________________________________________ 

3. It is true that Tulsa Prof. Collection Services v. Pope, 485 U.S. 478, 

485 

(1988), speaks in terms of requiring "actual notice" to those with a 

liberty or property interest at stake in a proceeding. That opinion, 

however, also describes mail service as an acceptable means of providing 

actual notice. See id. at 490. In our view, therefore, "actual notice" is 

employed not as a rule, but rather as a goal against which various forms 

of effecting actual notice are evaluated. 

 13 
the government need not prove actual notice to the 

prisoner, if it chooses to rely on less than actual notice, it 

bears the burden of demonstrating the existence of 

procedures that are reasonably calculated to ensure that 

such notice will be given. Thus, our rule requires the 

government to ensure that proper procedures are employed 

in the facilities where it chooses to house its prisoners.4 Of 

course, if there is a signed receipt from the served party, 

the government does not then have to prove anything about 

the procedures that were in place.5 

Because the District Court did not make findings on the 

sort of procedures in place at the facility at which McGlory 

was housed and whether these procedures were reasonably 

calculated to ensure that the notice, once addressed to 

McGlory, would still reach him upon arrival at the prison 

(and indeed, would only be accepted were McGlory actually 

present), we will vacate the District Court's ruling as to the 

jewelry forfeiture and remand for further proceedings 

consistent with this opinion. 

_________________________________________________________________ 

4. Our ruling is analogous to the approach taken by the Ninth Circuit in 

United States v. Real Property, 135 F.3d 1312 (9th Cir. 1998). In that 

case, the court declined to require actual notice to a forfeiture 

defendant 

when notice was sent by certified mail to the facility in which he was 

held awaiting trial and evidence was presented that the facility handled 

certified mail to inmates by opening the letters in their presence and, 

after checking for contraband, giving the contents directly to them. See 

id. at 1315. Under these circumstances, the court concluded that 

sufficient notice was given. See id. at 1316. 

5. Our approach would also apply to the problem of the relocated 

prisoner. Just as the government can monitor whether mail reaches a 

prisoner within a facility, it can similarly ensure that mail will follow 

an 

inmate who is transferred from one facility to another. See generally 

Small v. United States, 136 F.3d 1334, 1337 (D.C. Cir. 1998) (deeming 

notice inadequate when notice sent to jail and returned absent 

indication that effort to find prisoner for resending would be burdensome 

to government); Armendariz-Mata v. U.S. Dep't of Justice, D.E.A., 82 F.3d 

679, 683 (5th Cir. 1996) (holding notice inadequate when notice to jail 

returned undelivered and sender made no further inquiry). 

 14 
III. 

In the forfeiture proceeding regarding the Toshiba 

television and other electronic equipment, the government 

made no attempt to serve McGlory in jail. For due process 

purposes, therefore, the attempted notice was clearly 

inadequate. Though the government concedes the 

constitutional deficiency of its notice, it contends, and the 

District Court agreed, that McGlory's motion to vacate 

judgment on this forfeiture is precluded by the doctrine of 

laches. We disagree. 

A. 

The District Court treated McGlory's motion as arising 

under Federal Rule of Civil Procedure 60(b), but concluded 

that the improper notice given by the government of the 

forfeiture proceedings rendered the judgments, as applied 

against him, "voidable" rather than "void," as provided by 

Fed. R. Civ. Proc. 60(b)(4). We think this conclusion 

incorrect. As a general matter, we have held that the entry 

of a default judgment without proper service of a complaint 

renders that judgment void. See Gold Kist, Inc. v. 

Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985). The 

majority of courts of appeals to consider the fate of a prior 

forfeiture proceeding that violated notice requirements 

agree that a judgment issued without proper notice to a 

potential claimant is void. See United States v. Marolf, 173 

F.3d 1213, 1216 (9th Cir. 1999); Clymore v. United States, 

164 F.3d 569, 573 n.5 (10th Cir. 1999); Muhammed v.

D.E.A., Asset Forfeiture Unit, 92 F.3d 648, 654 (8th Cir. 

1996); Barrera-Montenegro v. United States, 74 F.3d 657, 

661 (5th Cir. 1996); United States v. Giraldo , 45 F.3d 509, 

512 (1st Cir. 1995). But see United States v. Dusenbery, 

201 F.3d 763, 768 (6th Cir. 2000) (treating forfeiture as 

voidable rather than void); Boero v. D.E.A., 111 F.3d 301, 

307 (2d Cir. 1997) (same). 

In light of our decision in Gold Kist, we are in accord with 

the majority view. Gold Kist involved a service of a 

summons and complaint in a manner that did not conform 

with Pennsylvania law. See Gold Kist, 756 F.2d at 18. 

Defendants in that action challenged the default judgment 

 15 
entered against them. Citing Fed. R. Civ. Proc. 60(b)(4), we 

declared that "[a] default judgment entered when there has 

been no proper service of complaint is, a fortiori, void, and 

should be set aside." Id. at 19. Because of the complaint's 

improper service, as well as the entry of default judgment 

before the expiration of the time for filing an answer, see 

id., the Gold Kist panel refrained from considering other 

factors that could also justify the setting aside of a default 

judgment. See id. 

The same logic applies here. Though we understand the 

concern expressed by the Sixth Circuit in Dusenbery that a 

prisoner claimant could sit on his or her rights until after 

the passage of the statute of limitations for the government 

to reinitiate a proceeding, see Dusenbery, 201 F.3d at 768, 

we conclude that this concern can be addressed by other 

means, see id. at 769 (Cole, J., dissenting). As we explain 

below, a holding that the forfeiture against McGlory's 

property was void does not equate to a ruling that he is 

entitled to a return of the property or monetary relief from 

the government, because a Rule 60(b) motion is not a claim 

for the return of property. McGlory will therefore have to 

pursue further proceedings to recover his property, and it 

is in these proceedings that the government may invoke 

defenses that are predicated on McGlory's alleged delay. 

B. 

The District Court ruled that McGlory's motion to vacate 

was barred by the doctrine of laches. The doctrine of laches 

hails from equity, and is invoked when two essential 

elements exist: inexcusable delay in instituting suit, and 

prejudice resulting to the defendant from such delay. See 

Central Penn. Teamsters Pension Fund v. McCormick Dray 

Line, Inc., 85 F.3d 1098, 1108 (3d Cir. 1996). We conclude 

that the District Court was incorrect to have applied laches 

analysis to McGlory's motion. 

McGlory's motion was to vacate the forfeiture judgments 

against him and is treated, as discussed above, as arising 

under Fed. R. Civ. Proc. 60(b). It is understandable why the 

District Court may have thought that the doctrine of laches 

applied. A motion under Rule 60(b) is equitable in nature, 

 16 
so it is reasonable to believe that equitable doctrines apply. 

See Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir. 1947) 

("The proceeding by motion to vacate a judgment is not an 

independent suit in equity but a legal remedy in a court of 

law; yet the relief is equitable in character and must be 

administered upon equitable principles."); see also Winfield 

Assocs., Inc. v. W.L. Stonecipher, 429 F.2d 1087, 1090 (10th 

Cir. 1970) ("Rule 60(b) . . . specifically preserves the right 

to attack a judgment by an independent equitable action."); 

In re Brown, 68 F.R.D. 172, 174 (D.D.C. 1975) (describing 

Rule 60(b) as codification of methods of gaining equitable 

relief from judgments). 

In light of our ruling that the judgment against McGlory 

in the electronic equipment forfeiture is void, however, no 

passage of time can transmute a nullity into a binding 

judgment, and hence there is no time limit for such a 

motion. It is true that the text of the rule dictates that the 

motion will be made within "a reasonable time." See Fed. R. 

Civ. Proc. 60(b). However, nearly overwhelming authority 

exists for the proposition that there are no time limits with 

regards to a challenge to a void judgment because of its 

status as a nullity; thus laches is no bar to recourse to 

Rule 60(b)(4). See Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 

F.3d 1126, 1130-31 (11th Cir. 1994) (collecting cases); 

Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir. 1993); Katter 

v. Arkansas Louisiana Gas Co., 765 F.2d 730, 734 (8th Cir. 

1985); In re Center Wholesale, Inc., 759 F.2d 1440, 1448 

(9th Cir. 1985); Misco Leasing, Inc. v. Vaughn , 450 F.2d 

257, 260 (10th Cir. 1971); Austin v. Smith, 312 F.2d 337, 

343 (D.C. Cir. 1962); Moore v. Positive Safety Manufacturing 

Co., 107 F.R.D. 49, 50 (E.D. Pa. 1985); see also Rodd v. 

Region Constr. Co., 783 F.2d 89, 91 (7th Cir. 1986) ("[T]he 

reasonable time criterion of Rule 60(b) as it relates to void 

judgments, means no time limit because a void judgment is 

no judgment at all.") (citation and quotation omitted). 

We agree that no passage of time can render a void 

judgment valid, and a court may always take cognizance of 

a judgment's void status whenever a Rule 60(b) motion is 

brought. Without addressing any other reason to bar a Rule 

60(b) motion that attacks a judgment as void,6 we hold that 

_________________________________________________________________ 

6. We also note that McGlory's delay vis-a-vis attacking the judgment (as 

opposed to inquiring into the disposition of his property, an issue that 

 17 
laches may not be used to preclude such a motion. Cf. 

Micro Leasing, 450 F.2d at 260 ("The cases say that a void 

judgment acquires no validity as the result of laches on the 

part of the adverse party. We are not asked to consider 

whether under any particular circumstances a movant

under Rule 60(b) may be estopped or precluded fromfiling 

such a motion.") (footnote omitted). 

C. 

Though we hold that laches is not available to preclude 

a claimant from attacking a void judgment, our holding is 

not to be construed as allowing a petitioner to sit on his or 

her rights. It is true that if a court is able to determine that 

a prior judgment is indeed void, it should declare it as 

such, but that does not mean that other remedies, such as 

the actual return of property or its cash value, are immune 

from defenses of waiver or laches. In other words, we 

conclude that the potential prejudice that arises from such 

delay is best dealt with outside of the Rule 60(b) context. 

Whether McGlory unreasonably delayed in seeking 

recovery of his property in general, which is the laches 

issue considered by the District Court, is a matter distinct 

from whether the judgment that forfeited the property was 

void. That is not, however, a matter that is before this 

Court. We are only reviewing the denial of McGlory's motion 

to vacate. Even if he prevails on this motion, that does not 

mean that he is entitled to any monetary relief or relief in 

the form of a transfer of property. It has been held that 

_________________________________________________________________ 

is not before us) was clearly not unreasonable. He maintains that he 

promptly sought relief from the judgments against him once he learned 

of them in 1994, and the District Court made no factfindings that 

indicate that McGlory learned of the judgments at an earlier date. Nor 

does this appear to be a situation in which McGlory can be accused of 

having waived his ability to bring a Rule 60(b) motion, as he did not 

previously launch a Rule 60(b) attack against the judgments. Cf. Beller 

& Keller v. Tyler, 120 F.3d 21, 23-24 (2d Cir. 1997) (acknowledging that 

laches cannot give a void judgment validity, but suggesting that a motion 

may be untimely when the voidness challenge is raised on a successive 

motion to vacate). 

 18 
Rule 60(b) does not provide for such remedies. See United 

States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 

1353, 1356-57 (5th Cir. 1972) (holding that monetary 

remedy for void forfeiture, which depends on waiver of 

sovereign immunity, lies not in Rule 60(b) but in 28 U.S.C. 

S 1346(a)); see also United States v. $119,980.00, 680 F.2d 

106, 107-08 (11th Cir. 1982) (holding Rule 60(b) may not 

be used to impose affirmative relief beyond setting aside 

prior judgment); United States v. One Douglas A-26B

Aircraft, 662 F.2d 1372, 1377 (11th Cir. 1981) (same). In 

order to obtain such relief, McGlory may have to look 

elsewhere. 

It is in the pursuit of his remedies that McGlory's delay, 

if any, will become an issue. Though the vacatur of the 

earlier judgment will be a powerful weapon for McGlory in 

such an effort, it will not decide the issue. McGlory would 

have to act within the confines of whatever legal framework 

surrounds the legal or equitable remedy he will elect to 

pursue. At that time, the District Court may consider 

whether the doctrine of laches applies, or whether the sixyear statute of limitations for suits against the federal 

government is applicable. See 28 U.S.C.S 2401(a). It would 

appear that the federal statute applies, see Menkarell v. 

Bureau of Narcotics, 463 F.2d 88, 91 (3d Cir. 1972)

(applying six-year statute of limitations of 28 U.S.C. 

S 2401(a) in attempt to recover forfeited property), even if 

the action is characterized as equitable, see, e.g., 

Blassingame v. Secretary of Navy, 811 F.2d 65, 70 (2d Cir. 

1987) ("[T]he merger of law and equity assured that section 

2401(a) covers both legal and equitable actions.").

If the District Court concludes laches analysis to be in 

order anyway, it will have to determine the interplay 

between laches and the relevant statute of limitations, 

giving consideration to the cases that indicate that if a suit 

is brought within the statutory period, laches would 

generally be unavailable. See, e.g., Central Penn. Teamsters 

Pension Fund v. McCormick Dray Line, Inc., 85 F.3d 1098, 

1108 (3d Cir. 1996); Henry v. United States, 46 F.2d 640, 

642 (3d Cir. 1931) ("While there is no statute of limitations 

in equity, yet it generally in this respect follows the law, 

and will, in the absence of special extenuating 

 19 
circumstances . . . regard the delay as inexcusable and 

refuse relief after the time of the statute of limitations in 

that particular locality has expired."); Ikelionwu v. United 

States, 150 F.3d 233, 238 (2d Cir. 1998) (declining to 

invoke laches when suit to recover forfeited property 

brought within statutory period). Also, insofar as it 

considers the doctrines of equity, the District Court will 

also have to consider whether the party asserting the 

defense of laches has clean hands. See United States v. 

Marolf, 173 F.3d 1213, 1219 (9th Cir. 1999) (refusing to 

reverse district court's rejection of laches defense in light of 

government's "inexplicable fail[ure] to remedy" an improper 

administrative notice or initiate proper judicial 

proceedings). 

We reference the foregoing authority not to express any 

view on the merits but only to flag important issues that 

the District Court did not appear to consider in its analysis 

of laches. At all events, we make no ruling on issues of 

inexcusable delay because all we have before us is the 

motion to vacate, and, as we have held, laches analysis 

does not apply to such a motion. Finally, in ruling that the 

judgment in the electronic equipment forfeiture is void, we 

offer no opinion as to whether the government is prohibited 

from reinitiating the forfeiture action against McGlory or if 

the passage of the relevant statute of limitations has been 

tolled. The District Court will have to consider the issue 

should the government attempt to reinitiate such 

proceedings. 

The judgment of the District Court will be vacated and 

the case remanded for further proceedings consistent with 

this opinion. 

 20 
ALITO, Circuit Judge, concurring and dissenting: 

I join parts I and III of the opinion of the court and 

concur in the judgment insofar as it relates to No. 98-3578. 

However, I respectfully dissent from the court's disposition 

of No. 98-3579 and from part II of the opinion of the court, 

which adopts an interpretation of due process that has no 

basis in prior decisions of the Supreme Court or our circuit. 

The question before us is not whether it would be good 

policy to require the government in forfeiture proceedings to 

provide notice to interested parties by some means superior 

to the mail. Rather, the question is whether the government 

complied with the minimum requirements of the Due Process 

Clause by sending notice by mail (return receipt requested) 

to McGlory at the facility where he was detained. Under 

Supreme Court precedent, this met constitutional 

standards. The Supreme Court has repeatedly referred to 

the service of notice by mail as sufficient to satisfy the 

minimum requirements of due process. See, e.g. , Tulsa 

Prof 'l Collection Services v. Pope, 485 U.S. 478, 490 (1988); 

Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 

(1983) ("Notice by mail or other means as certain to ensure 

actual notice is a minimum constitutional precondition to a 

proceeding which will adversely affect the liberty or 

property interests of [a] party . . . ."). 1 

The majority seemingly acknowledges that service by mail 

sent to the addressee's current address is constitutionally 

adequate in almost all other contexts, but the majority 

holds that such notice may not be sufficient when sent to 

a detainee or prisoner. Why? Why is it that mail sent to, 

say, an inexpensive long-term-occupancy hotel is 

reasonably calculated under all the circumstances to 

apprise an interested party of the pendency of a forfeiture 

_________________________________________________________________ 

1. On only one occasion has the Court held that notice by mail sent to 

the addressee's correct address was not constitutionally adequate. In 

Covey v. Town of Somers, 351 U.S. 141 (1956), the Court held that due 

process was violated where notice of foreclosure for delinquent taxes was 

mailed to a person who was known to be incompetent, lived alone, and 

had no guardian, no relatives in the state, and no other person who was 

able to help her with her taxes. Id. at 146-47. Thus, Somers hardly 

supports the majority's holding here. 

 21 
action but mail sent to a jail or prison may not be? The 

answer must be that there is a significantly higher

probability that mail sent to such hotels will reach the 

addressees than is the case with mail sent to a jail or 

prison. But where is the evidence that this is so? The 

majority studiously avoids this point--for the very good 

reason that no evidence whatsoever to this effect has been 

adduced, by McGlory, the majority in this case, or any 

other judicial opinion of which I am aware. Such systemic 

problems may or may not exist; I don't know; and I doubt 

that my colleagues do either. But without such evidence, 

there is no logical basis for the majority's decision. 

It may well be that it would be advisable for those with 

legislative or rulemaking authority to require the 

government in forfeiture cases to provide better notice than 

is required by the minimum standard imposed by due 

process. Congress has recently manifested concern about 

the fairness of federal forfeiture procedures and has 

enacted the Civil Asset Forfeiture Reform Act of 2000, Pub. 

L. No. 106-185, 114 Stat. 202 (2000), to remedy the

problems that it found. This Act, however, does not require 

that notice of forfeiture be provided by some means better 

than the mail, but perhaps Congress should consider that 

question. Congress has the capability--which the federal 

courts plainly lack--to investigate whether notice of 

forfeiture sent by mail fails to reach the addressee in a 

significant number of cases. (The mere fact that McGlory 

and a handful of other federal prisoners and detainees have 

claimed that they did not receive notice sent by mail to 

their facilities is hardly enough to show the existence of a 

serious problem.) Congress also has the ability to craft a 

rule that is specifically targeted to deal with any problem it 

finds to exist. It can specify the addressees to which any 

such rule applies--e.g., all persons to whom notice is 

provided, only those in custody, only those in custody on 

federal charges, or only those in federal facilities. And it can 

provide that any new rule will not have retroactive effect. A 

court, in interpreting the Due Process Clause, lacks such 

flexibility." 

I have three additional observations about the majority's 

decision. First, although the decision formally applies only 

 22 
to notices of forfeiture sent by the federal government to 

persons in custody on federal charges, its logic extends to 

any forfeiture notices sent to any persons in custody. If 

notice of a federal forfeiture proceeding that is sent by mail 

to a person in a state facility on federal charges is not 

reasonably calculated under all the circumstances to 

apprise that person of the pendency of the federal forfeiture 

proceeding, notice of a state forfeiture proceeding that is 

sent by mail to another person held in the same facility on 

state charges cannot be reasonably calculated to inform 

that person of the pendency of the state forfeiture

proceeding. Thus, the majority's decision has a broad 

logical sweep. 

Second, the majority's standard regarding the adequacy 

of mail handling procedures is left open-ended and will 

almost certainly lead to confusion and litigation. Under the 

majority's decision, notice by mail to a detainee or prisoner 

satisfies due process only if the facility's mail handling 

procedures at the time in question were reasonably 

calculated to ensure that the notice reached the addressee. 

See Maj. Op. p. 14. What does this mean in practical 

terms? Must there be a written policy? Must the addressee 

sign a receipt? May delivery of the mail be entrusted to 

other detainees or prisoners? Must the mail be handed to 

the addressee personally? One or more rounds of litigation 

will almost certainly be required to answer these and 

related questions. 

Third, although the majority has attempted to devise a 

rule that will not impose an undue evidentiary burden in 

cases in which forfeiture judgments are sought to be 

vacated for lack of proper notice, the majority's decision 

may well prove quite difficult to administer. As previously 

noted, the majority's mail handling standard is murky, and 

attempting to establish what procedures were followed at 

various points in the past at the numerous state and 

federal facilities in which federal detainees and prisoners 

have been held may not be easy. And if the majority's 

decision is extended to state detainees and prisoners, as I 

think logic requires, the problem will be magnified. 

I would hold that due process was satisfied and leave it 

to the legislative or rulemaking processes to decide whether 

 23 
additional notice requirements should be imposed in

forfeiture cases. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 24