### *The H on. Richard H. Battey, Chief Judge, United State s

District Court for the District of South Dakota, sitting b y 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 Dr ug Enforcement Administration declared $24,410 of money claimed by William Lee Cupples administratively forfeited t o the government. Cupples later mov ed for the return of his property, arguing that he had no t received adequate notice of the administrative proceeding. The District Court denied his moti on, and this appeal followed. We reverse and remand this proceeding so

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that th e District Court can determine whether or not Cupples receive d actual notice of the administrative forfeiture proceeding.

I.

In November 1994, a Utah state trooper stopped a pick-up truck o n suspicionof drunk driving. While searching the truck, he discovered 20 ounces of methamphetamine and three pounds of ma rijuana. The passenger in the truck claimed that he was on his way to deliver the drugs to William Lee Cup ples. Utah law- enforcement officers used this information t o obtain a search warra nt 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 thei r search of the house, the officers discovered and seized a sma ll quantity of drugs and $24,410 in U.S. currency. Cupples wa s ev entuallyarrested and charged with conspiracy to distribut e methamph etamine and marijuana in violation of 28 U.S.C. § 846, an d posses sionwith intent to distribute methamphetamine in violation of 2 1 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 dru g transactions. Three days after the return of the indictment on December 16, 1 994, the Drug Enforcement Administration instituted a paralle l administrative proceeding seeking the forfeiture of the same money. On December 24, 1994, a notice advising Cupples of the administ rative forfeiture proceeding was delivered to his house by certified mail an d signed for in Cupples’s name by Dave Boudreau, who was living at Cupples’s house a t the time. The notice advised that administrative forfeitur e proceedings were under way and that

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Cupple s could challenge the forfeiture by submitting a petition fo r remission or mitigati on within 30 days of the receipt of the notice or by making an appropriate filing in federal district court within 20 days of the public ation of the notice of forfeiture in the December 28, 1994 , edition of U.S.A. Tod ay. 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 th e iss uance of a Declaration of Forfeiture approximately a month after th e notice of the forfeit ure 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 N otice of Seizure was delivered to his house. He also moved in th e criminal case for the return of his property shortly after the final date for challenging the administrative forfeiture but before the governmen t issued the Declaration of Forfeiture. A hearingwas held on the same day, and the motion was denied. The government did not inform Cupples, hi s attorney, or the District Court at this time of the parallel civi l forfeiture proceedings. Two months after the en try of his plea, Cupples’s trial on the drug charges began. Both he and hi s grandmother testified at the trial that his grandmother had lent him the money that the officer s sei zed from his house to help with his auto-sales business. The jur y acquitted Cupples of the drug charges, and the court then dismissed th e criminal forfeiture count. It was only when Cupples tried again to get hi s money back that he discovered that the money hadbeen civilly forfeited to the government. Cupp les then moved for the return of his property in the District Court, arguing that the government violated his due process right s because it never provided him or his counsel with actual notice of th e ad ministrative forfeiture proceeding. The District Court denied hi s motion, and this appeal followed.

### -4- II. The District Court assumed, as alleg ed, that Cupples and his counsel never received actual notice of the administrative forfeiture proceeding. Neverth eless, it held, and the government argues, that notice sent by certif ied mail to Cupples’s residence was enough to satisfy th e government’s constitutional obligations. This Court has previously held to the contrary. In United States v. Woodall , 12 F.3d 791, 794-95 (8t h Cir. 1993), this Court held that “if the government is incarcerating o r prosecuting the property owner when it elects to impose the additiona l burdenof defending a forfeiture proceeding, fundamental fairness surely requires that either the defendant or his counse l receive actual notice of the agency’s intent to forfeit in time to decide whether to compel th e agency to proceed by judicial condemnation.”
The gover nment attempts to distinguish Woodall by pointing out that in that c ase, the government sent the notice of forfeiture to the wron g address, a circumstance not present in this case. The rule of la w announced in Woodall , however, is not limited to the facts of that case. The case hinged upon the property owner’s failur e to receive actual notice of the forfeiture, not upon the particular circumstances of the case. Whe n the go vernment is prosecuting someone who is actively contesting th e criminal charges agai nst him, including a count of the indictment seeking forfei ture, but who is not contesting the civil forfeiture proceeding s 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 giv e actual notice to the property owner’s counsel or the defendant himself.

### -5- The Distr ict Court assumed that Cupples did not know of the pending administrative proceedings. Because this case was decided at the pleading s stage , the assumption was entirely proper. It was appropriate for th e 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 shoul d then, on remand, be put to his proof. If the Court then finds that Cupple s 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 C upples did have actual knowledge of the administrative forfeitur e proceeding, either because Dave Boudreau told him about it, or for som e other reason, the Cou rt should enter judgment confirming the government’s declaration of forfeiture.
The judgment is reversed, and the ca use remanded for proceedings not inconsistent with this opinion.
It is so ordered.
A true copy.

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