*The Hon. Richard H. Battey, Chief Judge, United States

District Court for the District of South Dakota, sitting by

designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-2158SI

_____________

United States of America, *

*

Appellee, * On Appeal from the United

* States District Court

v. * for the Southern District

* of Iowa.

*

William Lee Cupples, *

*

Appellant. *

___________

 Submitted: February 11, 1997

 Filed: April 23, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY,*

Chief District Judge.

___________

RICHARD S. ARNOLD, Chief Judge.

In early 1995, after an uncontested civil forfeiture proceeding, the

Drug Enforcement Administration declared $24,410 of money claimed by

William Lee Cupples administratively forfeited to the government. Cupples

later moved for the return of his property, arguing that he had not

received adequate notice of the administrative proceeding. The District

Court denied his motion, and this appeal followed. We reverse and remand

this proceeding so 
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that the District Court can determine whether or not Cupples received

actual notice of the administrative forfeiture proceeding.

I.

In November 1994, a Utah state trooper stopped a pick-up truck on

suspicion of drunk driving. While searching the truck, he discovered 20

ounces of methamphetamine and three pounds of marijuana. The passenger in

the truck claimed that he was on his way to deliver the drugs to William

Lee Cupples. Utah law- enforcement officers used this information to

obtain a search warrant for Cupples’s residence in Des Moines, Iowa. The

officers then had the passenger deliver the drugs to Cupples’s residence

and executed the search warrant as soon as the passenger entered the house.

In their search of the house, the officers discovered and seized a

small quantity of drugs and $24,410 in U.S. currency. Cupples was

eventually arrested and charged with conspiracy to distribute

methamphetamine and marijuana in violation of 28 U.S.C. § 846, and

possession with intent to distribute methamphetamine in violation of 21

U.S.C. § 841(a)(1). The government also sought criminal forfeiture of the

money from Cupples’s residence, claiming it to be the proceeds of drug

transactions. Three days after the return of the indictment on December

16, 1994, the Drug Enforcement Administration instituted a parallel

administrative proceeding seeking the forfeiture of the same money.

On December 24, 1994, a notice advising Cupples of the administrative

forfeiture proceeding was delivered to his house by certified mail and

signed for in Cupples’s name by Dave Boudreau, who was living at Cupples’s

house at the time. The notice advised that administrative forfeiture

proceedings were under way and that 
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Cupples could challenge the forfeiture by submitting a petition for

remission or mitigation within 30 days of the receipt of the notice or by

making an appropriate filing in federal district court within 20 days of

the publication of the notice of forfeiture in the December 28, 1994,

edition of U.S.A. Today. Cupples claims, and the District Court assumed,

that Boudreau neglected to tell Cupples about the notice. Consequently,

Cupples failed to challenge the administrative forfeiture, resulting in the

issuance of a Declaration of Forfeiture approximately a month after the

notice of the forfeiture proceeding was delivered to Cupples’s residence.

Meanwhile, Cupples was contesting the criminal charges against him.

He entered a plea of not guilty to the drug charges on the same day that

the Notice of Seizure was delivered to his house. He also moved in the

criminal case for the return of his property shortly after the final date

for challenging the administrative forfeiture but before the government

issued the Declaration of Forfeiture. A hearing was held on the same day,

and the motion was denied. The government did not inform Cupples, his

attorney, or the District Court at this time of the parallel civil

forfeiture proceedings. Two months after the entry of his plea, Cupples’s

trial on the drug charges began. Both he and his grandmother testified at

the trial that his grandmother had lent him the money that the officers

seized from his house to help with his auto-sales business. The jury

acquitted Cupples of the drug charges, and the court then dismissed the

criminal forfeiture count. It was only when Cupples tried again to get his

money back that he discovered that the money had been civilly forfeited to

the government. Cupples then moved for the return of his property in the

District Court, arguing that the government violated his due process rights

because it never provided him or his counsel with actual notice of the

administrative forfeiture proceeding. The District Court denied his

motion, and this appeal followed. 
-4-

II.

The District Court assumed, as alleged, that Cupples and his counsel

never received actual notice of the administrative forfeiture proceeding.

Nevertheless, it held, and the government argues, that notice sent by

certified mail to Cupples’s residence was enough to satisfy the

government’s constitutional obligations. This Court has previously held

to the contrary. In United States v. Woodall, 12 F.3d 791, 794-95 (8th

Cir. 1993), this Court held that “if 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.”

The government attempts to distinguish Woodall by pointing out that

in that case, the government sent the notice of forfeiture to the wrong

address, a circumstance not present in this case. The rule of law

announced in Woodall, however, is not limited to the facts of that case.

The case hinged upon the property owner’s failure to receive actual notice

of the forfeiture, not upon the particular circumstances of the case. When

the government is prosecuting someone who is actively contesting the

criminal charges against him, including a count of the indictment seeking

forfeiture, but who is not contesting the civil forfeiture proceedings

against him, the government both knows the identity of the property owner’s

lawyer and has some idea that the defendant may not know of the parallel

administrative forfeiture proceedings. Under these circumstances, it is

only fair and not unduly burdensome, to require the government to give

actual notice to the property owner’s counsel or the defendant himself.
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The District Court assumed that Cupples did not know of the pending

administrative proceedings. Because this case was decided at the pleadings

stage, the assumption was entirely proper. It was appropriate for the

District Court to assume that the facts were as alleged by Cupples.

Whether Cupples did have actual notice, however, is a question of fact.

If the government denies Cupples’s version of the facts, Cupples should

then, on remand, be put to his proof. If the Court then finds that Cupples

did not have actual knowledge of the institution of the civil forfeiture

proceedings, the proceeding should then continue, with Cupples being given

an opportunity to contest the forfeiture either by administrative petition

or through a judicial proceeding. If, on the other hand, the Court finds

that Cupples did have actual knowledge of the administrative forfeiture

proceeding, either because Dave Boudreau told him about it, or for some

other reason, the Court should enter judgment confirming the government’s

declaration of forfeiture.

The judgment is reversed, and the cause remanded for proceedings not

inconsistent with this opinion.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.