IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50475

Summary Calendar

JAMES LLOYD CONARD

Petitioner-Appellant

v.

UNITED STATES OF AMERICA

Defendant-Appellee

and

SEIZURE OF $278,478.34,

Defendant.

Appeal from the United States District Court

for the Western District of Texas

U.S.D.C. No. 5:10-cv-00355

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.

PER CURIAM:*

James Lloyd Conard filed suit in federal court to set aside the

administrative forfeiture of two Chase bank accounts in Conard’s name. 

Pursuant to FED. R. CIV. P. 56, the district court granted summary judgment in

United States Court of Appeals

Fifth Circuit

F I L E D

May 2, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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favor of the Government, denying Conard’s motion to set aside the

administrative forfeiture and for return of the funds. We AFFIRM.

I. FACTS & PROCEDURAL HISTORY 

On May 9, 2007, Conard was arrested on a criminal complaint of federal

drug violations. In conjunction with his arrest, officers seized from Conard’s

residence in San Antonio, Texas, approximately 1500 grams of

methamphetamine, 832 grams of marijuana, 23 grams of cocaine, approximately

$82,000 in U.S. currency, and approximately 62 different weapons. 

After his arrest, Conard was released on bond and ordered to report to an

inpatient drug treatment facility. Conard initially reported to the facility but

then absconded from the facility in June 2007. An indictment was returned

against Conard shortly thereafter alleging violations of Title 21 U.S.C. §§

841(a)(1), 841(b)(1)(A) and Title 18 U.S.C. § 2, for Conspiracy to Possess with

Intent to Distribute Methamphetamine, a Schedule II Controlled Substance and

Aiding and Abetting the same; and Title 18 U.S.C. § 924(c), Possession of a

Firearm during a Drug Trafficking Crime. A warrant for Conard’s arrest was

issued on June 11, 2007. Conard remained a fugitive for approximately one

year. 

During the year that Conard was a fugitive, federal agents discovered two

Chase bank accounts in Conard’s name. Agents sought, received, and executed

a seizure warrant for the balances contained in the bank accounts. The account

at issue in this appeal contained a balance of $278,478.34 (hereinafter referred

to as the “subject currency”). Pursuant to the Civil Asset Forfeiture Reform Act, 1

the Drug Enforcement Administration (“DEA”) began administrative forfeiture

proceedings against the subject currency. 

Conard’s other Chase bank account contained a balance of $192.09 and is not at issue in

1

this appeal. 

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The DEA made four attempts to send notice of the administrative

forfeiture proceedings to Conard. The notices included a statement by the DEA

of its intent to administratively forfeit the property along with information

detailing the procedures and applicable deadlines to claim the seized property. 

The first and second notices were sent via certified mail to Conard’s residence

in San Antonio, both of which were returned unclaimed. The DEA then sent

notice to Conard’s attorney, which was received. The DEA also discovered an

alternative address associated with Conard in Converse, Texas, and sent notice

via certified mail to that address, which was claimed and signed for as having

been delivered. Additionally, the DEA published notice of the administrative

forfeiture in the Wall Street Journal on August 6, 13, and 20, of 2007.

When no claims to the seized property were received after the above four

notices were issued, the DEA entered a declaration of administrative forfeiture

of the subject currency. 

Conard was then re-arrested, entered a guilty plea to the criminal charges

in the indictment, and was sentenced to a term of sixty-five months’

imprisonment. After this disposition of his criminal case, Conard filed suit in

May 2010 to set aside the administrative forfeiture of the subject currency and

for return of the funds. Conard claimed that the subject currency was comprised

entirely of legitimately earned retirements funds from his previous employment

with Alamo Concessions. 

In September 2010, the Government filed a motion to dismiss and an

alternative motion for summary judgment, asserting the propriety of the

administrative forfeiture. In January 2011, a magistrate court entered a

memorandum and recommendation for summary judgment in favor of the

Government. In March 2011, the district judge entered an order adopting the

magistrate judge’s recommendation and summary judgment was entered in

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favor of the Government, thereby denying Conard’s motion to set aside the

administrative forfeiture and for return of the funds. This appeal ensued.

II. DISCUSSION

A grant of summary judgment in a civil forfeiture proceeding is a question

of law subject to de novo review. United States v. Robinson, 434 F.3d 357, 361

(5th Cir. 2005). Summary judgment is appropriate when “the movant shows

that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

The forfeiture proceedings in this case are governed by the Civil Asset

Forfeiture Reform Act (“CAFRA”). Under CAFRA, “the burden of proof is on the

Government to establish, by a preponderance of the evidence, that the property

is subject to forfeiture[.]” 18 U.S.C. § 983(c)(1). Further, if the Government’s

theory of forfeiture is that the property was involved in the commission of a

criminal offense, the Government must establish a “substantial connection”

between the property and the offense. Id. § 983(c)(3). The claimant then has the

burden of proving that he is an innocent owner by a preponderance of the

evidence. Id. § 983(d)(1).

Pursuant to 19 U.S.C. § 1607, an agency seizing property with a value of

$500,000 or less may use administrative forfeiture procedures. In accordance

with the statute, the agency must publish notice of the seizure “for at least three

successive weeks in such manner as the Secretary of Treasury may direct.” Id.

§ 1607(a)(4). Additionally, “[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.” Id. After notice is given, a party has twenty days

in which to file a claim. Id. § 1608. 

If a claim is filed, the administrative forfeiture proceedings are cancelled

and referred to the United States Attorney’s Office for initiation of judicial

forfeiture proceedings. Robinson, 434 F.3d at 362. If no claim is filed, the seized

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property is deemed summarily forfeited. 19 U.S.C. § 1609(a). A declaration of

forfeiture under the statute shall have the same force and effect as a final decree

and order of forfeiture in a judicial forfeiture proceeding in a district court of the

United States. Id. § 1609(b). 

Once an administrative forfeiture is complete, the district court may

review only “whether the forfeiture comported with constitutional due process

guarantees.” Taylor v. United States, 483 F.3d 385, 388 (2007) (quoting

Robinson, 434 F.3d at 362). If a party “with an interest in forfeited funds failed

to receive constitutionally adequate notice, the administrative forfeiture is void

and must be vacated.” Robinson, 434 F.3d at 362. To withstand scrutiny under

the Due Process Clause, the Government’s notice must be “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.” Taylor, 483 F.3d at 388 (quoting Mullane v. Cent. Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950)). Actual notice is not required. Dusenbery

v. United States, 534 U.S. 161, 170 (2002). “Although the Government is not

required to undertake ‘heroic efforts,’ it must fulfill Mullane’s command that the

effort be ‘reasonably calculated’ to provide notice.” Taylor, 483 F.3d at 388

(quoting Dusenbery, 534 U.S. at 170). 

When CAFRA was enacted in 2000, its statutory provisions became “the

exclusive remedy for seeking to set aside a declaration of forfeiture under a civil

forfeiture statute.” 18 U.S.C. § 983(e)(5). 

Conard does not argue that the notices sent by the DEA were not

reasonably calculated to apprise him of the pendency of the forfeiture

proceedings. Conard concedes in his final brief that the Government “followed

the necessary steps to send notice in a manner that generally satisfies due

process notice requirements.” Conard contends, however, that the district court

erred in failing to exercise its equitable jurisdiction to grant Conard’s motion to

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set aside the administrative forfeiture and for the return of the subject currency. 

Conard further contends that summary judgment was not appropriate in light

of his complaint that the Government’s actions during the administrative

forfeiture amounted to “outrageous governmental conduct.” We are not

persuaded by either of these arguments. 

The evidence in the record indicates that the DEA adhered to CAFRA’s

statutory requirements and constitutional due process standards during the

administrative forfeiture proceedings against Conard. In addition to publishing

notice of the proceedings for three consecutive weeks in the Wall Street Journal,

the DEA sent two notices by certified mail to the residential address where

Conard was living when he was originally arrested on the charges associated

with this litigation. The DEA sent a third notice by certified mail to Conard’s

attorney which was received. The DEA sent a fourth notice by certified mail to

a second residential address which was discovered to have been associated with

Conard, which was received. Additionally, the fact that Conard was a fugitive

for a year, absconding from the jurisdiction of the courts from which he now

seeks relief, serves as a plausible explanation as to why Conard did not receive

two of the four attempted notices sent to him by the DEA. 

Further, because CAFRA provides the “exclusive remedy for seeking to set

aside a declaration of forfeiture under a civil forfeiture statute,” the district court

was deprived of its equitable remedy jurisdiction after CAFRA’s enactment in

2000. See 18 U.S.C. § 983(e)(5). Congress may deprive the federal courts of their

equitable remedy authority by establishing a comprehensive enforcement

scheme with exclusive remedies for a statutory violation. United States v.

Babcock, 250 U.S. 328, 331 (1919) (“where a statute creates a right and provides

a special remedy, that remedy is exclusive”). Consequently, the arguments

advanced by Conard with regard to the equitable remedy jurisdiction of the

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district court, the majority of which rely on pre-CAFRA jurisprudence, are

foreclosed by CAFRA and will not be further considered by this court.

Finally, in light of our conclusion that the DEA adhered to CAFRA’s

statutory requirements and constitutional due process standards during the

administrative forfeiture proceedings against Conard, we find Conard’s

secondary argument that the Government’s conduct was “outrageous” to be

without merit. See United States v. One Boeing 707 Aircraft, 750 F.2d 1280,

1284 (5th Cir. 1985) (holding that Appellant’s argument that the Government’s

conduct was so outrageous that the forfeiture of weapons was itself a denial of

due process was without merit). 

III. CONCLUSION

Accordingly, we AFFIRM the district court’s summary judgment in favor

of the Government, denying Conard’s motion to set aside the administrative

forfeiture.

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