2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-1-2000

USA v. McGlory

Precedential or Non-Precedential:

Docket 97-3057

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Recommended Citation

"USA v. McGlory" (2000). 2000 Decisions. Paper 15.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/15
Filed February 1, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-3057 

UNITED STATES OF AMERICA 

v. 

REGINALD MCGLORY, 

 Appellant 

On Appeal from the United States District Court 

For the Western District of Pennsylvania 

(D.C. Crim. No. 89-cr-00144) 

District Judge: The Honorable D. Brooks Smith 

Originally Argued April 5, 1999 

Before: SLOVITER and ALITO, Circuit Judges, 

ALARCON, Senior Circuit Judge* 

Argued en banc November 8, 1999 

Before: BECKER, Chief Judge, SLOVITER, MANSMANN, 

GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, 

MCKEE, RENDELL, and BARRY, Circuit Judges 

(Filed February 1, 2000) 

 Michael A. Young (Argued) 

 165 Christopher Street 

 New York, NY 10014 

 Attorney for Appellant 

_________________________________________________________________ 

* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals 

for the Ninth Circuit, sitting by designation when this case originally 

was 

argued April 5, 1999. 
 Mary Houghton 

 Assistant United States Attorney 

 Harry Litman (Argued) 

 United States Attorney 

 Bonnie R. Schlueter 

 Assistant United States Attorney 

 633 United States Post Office and 

 Courthouse 

 Pittsburgh, PA 15219 

 Attorneys for Appellee 

OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

The issue before the en banc court in this case is 

whether the appellant Reginald D. McGlory received 

constitutionally adequate notice for the administrative 

forfeiture of certain property seized by officers of the Drug 

Enforcement Administration ("DEA"). 

McGlory was arrested, tried, convicted, and sentenced to 

life imprisonment for various drug and firearm offenses. 

Incident to his arrest various of his property was seized and 

most of the seized property, but apparently not all, was 

subjected to administrative or judicial forfeiture by the 

DEA. McGlory first challenged the forfeiture byfiling a 

motion for return of property pursuant to Rule 41(e) of the 

Federal Rules of Criminal Procedure. Before we can 

consider the adequacy of the particular administrative 

forfeiture notices that are the subject of this appeal,1 we 

must decide whether the District Court had jurisdiction to 

consider McGlory's Rule 41(e) motion. Only if it had can we 

consider the important, albeit narrow, issue whether 

_________________________________________________________________ 

1. Also before the en banc court are consolidated appeals in United 

States v. One Toshiba Color Television, Two Answering Machines, and 

One Health Tech Computer, No. 98-3578, and United States v. Assorted 

Jewelry, No. 98-3579. Although those appeals involve the identical 

parties and similar fact patterns as the present appeal, they raise 

distinct legal issues and will be addressed hereafter in a separate 

opinion. 

 2 
adequate notice of administrative forfeiture proceedings is 

provided to a prisoner who is in local detention facilities by 

mailing the notices to an office of the United States 

Marshals Service. 

I. 

On September 8, 1989, DEA agents and local Pittsburgh 

officers arrested McGlory for conspiracy to possess heroin 

with intent to distribute. At that time, and pursuant to 

search warrants, the officers seized property, including 

cash, from McGlory's apartment at 236 South Negley 

Avenue in Pittsburgh, Pennsylvania, his mother's home at 

4267 Bryn Mawr Road in Pittsburgh, Pennsylvania, and his 

wife's residence at 285 Suncrest Drive in Verona, 

Pennsylvania. On September 15, 1989, the Magistrate

Judge ordered that McGlory be detained by the United 

States Marshals Service pending trial. By arrangement 

between federal and state authorities, federal pretrial 

detainees are often housed in state detention facilities. 

McGlory was indicted by a federal grand jury on October 

4, 1989. He was charged with possession of a firearm after 

having been convicted of a felony, conspiracy to distribute 

heroin, and possession of heroin with intent to distribute. 

McGlory pled not guilty, and the court ordered a trial by 

jury to begin December 11, 1989, which was later 

continued to February 20, 1990. 

On December 13, 1989, the government filed a 

superseding indictment which added additional criminal 

charges against McGlory. McGlory was arraigned on the 

superseding indictment on December 21, 1989. He again 

pled not guilty to each charge. McGlory's trial began on 

April 25, 1990. On May 16, 1990, the jury returned its 

verdict finding McGlory guilty of each of the charges set 

forth in the superseding indictment. 

McGlory was sentenced on February 11, 1991 and was 

remanded to the custody of the Bureau of Prisons less than 

two weeks later. He therefore remained in the custody of 

the United States Marshals Service from the date of his 

arrest on September 8, 1989 until February 22, 1991, 

almost all of that time as a pretrial detainee. McGlory has 

 3 
stated that during this time he was housed in various 

pretrial detention facilities, but neither he nor the 

government introduced evidence of the facilities in which he 

was confined or the dates of his confinement at each 

facility. This court has reviewed the record of McGlory's 

criminal trial and finds references to McGlory's initial 

detention on September 11, 1989 and thereafter on 

December 11, 1989 in Hancock County Jail, West Virginia, 

which suggests that he was detained there during that 

period. This encompasses the relevant period for the 

purpose of this appeal. We note other references that 

suggest that from approximately May 18, 1990 until at 

least August 2, 1990 he was housed in Fayette County Jail, 

Uniontown, Pennsylvania. By November 9, 1990, he had 

been moved to the Ohio County Jail in Wheeling, West 

Virginia. Since February 22, 1991, he has been in a federal 

prison designated by the Bureau of Prisons serving his term 

of life imprisonment. See 18 U.S.C. S 3621(a) and (b). 

Before McGlory's criminal trial began, and during the 

time McGlory was in the custody of the United States 

Marshals Service, the DEA initiated administrative 

forfeiture proceedings regarding the property covered by 

DEA seizure numbers 52425 ($8,800 cash), 65613 

(assorted clothing), 65615 (Louis Vuitton luggage), 2 66651 

(Louis Vuitton luggage/briefcase), 65323 (miscellaneous 

jewelry), and 67065 (cellular phone).3 

The DEA provided notice of these administrative 

forfeiture proceedings by three methods. One was by

published notice in a newspaper of general circulation. The 

DEA also sent notice by certified mail, return receipt 

_________________________________________________________________ 

2. The luggage is misnamed throughout the record as Louis Vitton. The 

brand name is well known and the accurate name is Louis Vuitton. 

3. The government also initiated administrative forfeiture proceedings 

regarding eleven other DEA seizure numbers: 64582, 68735, 73402, 

68730, 68719, 68727, 64563, 68740, 68729, 68743, and 72090. The 

government contends that the property listed at these seizure numbers 

was seized from individuals other than McGlory, and McGlory does not 

contend otherwise in this appeal. In addition, one other administrative 

forfeiture (66645) involved a Nissan automobile that has been returned 

to the lienholder, and McGlory did not list this among the seizure 

numbers challenged on appeal. See Appellant's Brief at 4. 

 4 
requested, to McGlory's last known address at 236 S. 

Negley Avenue, Pittsburgh, Pennsylvania, and his mother's 

residence at 4267 Bryn Mawr Road, Pittsburgh, 

Pennsylvania. Finally, the DEA sent notice by certified mail, 

return receipt requested, addressed to McGlory to or in care 

of the United States Marshals Service at the federal 

courthouse located at 7th and Grant Street, Pittsburgh, 

Pennsylvania. Those notices were mailed between 

September 26, 1989 and November 15, 1989. McGlory 

claims that he received none of these notices. The 

government has made no attempt to show otherwise. 

McGlory did not take steps for the return of the property 

seized until April 11, 1994 when he filed a pro se motion 

under Rule 41(e) for the return of the seized property. This 

was after the completion of the criminal trial proceedings 

on February 11, 1991. On February 3, 1995, the District 

Court referred McGlory's Rule 41(e) motion for the return of 

the seized property to a Magistrate Judge for a report and 

recommendation. While the matter was pending, this court 

decided United States v. $184,505.01 In U.S. Currency, 72 

F.3d 1160 (3d Cir. 1995), another challenge by McGlory to 

different forfeitures, where we held that the notice given to 

McGlory in two of three judicial forfeiture proceedings did 

not satisfy due process. On December 17, 1996, the 

Magistrate Judge filed his report recommending that

McGlory's Rule 41(e) motion be denied without prejudice to 

the judicial forfeiture actions. On December 30, 1996, 

before the District Court ruled on the Report and 

Recommendation, McGlory's counsel filed a motion for 

permission to file an amended Rule 41(e) motion and to 

stay any further proceedings on McGlory's pro se Rule 41(e) 

motion. 

On January 3, 1997, the District Court determined that 

the Magistrate Judge "correctly denied the Rule 41(e) 

motion" and ordered that "the plaintiff 's Rule 41(e) motion 

is dismissed without prejudice to the pending civil forfeiture 

actions." United States v. McGlory, No. 89-144, Slip op. at 

1, 4 (W.D. Pa. Jan. 3, 1997). The court opined that "[t]he 

administrative forfeiture proceedings did not suffer from the 

same defective notice problem as the judicial forfeiture 

proceedings, see United States v. $184,505.01 In U.S. 

 5 
Currency, 72 F.3d 1160 (3d Cir. 1995), since petitioner was 

personally served with notice of those actions." Id. at 2 

(emphasis added). The court did not explain what 

constituted the "personal service" on McGlory to which it 

referred, nor did it expressly rule on McGlory's motion to 

file an amended Rule 41(e) motion. 

On January 13, 1997, McGlory, through counsel, filed a 

motion for reconsideration of the January 3, 1997 order 

denying his Rule 41(e) motion. On January 14, 1997, he 

filed a notice of appeal from that same order without 

waiting for any order from the District Court. We stayed the 

appeal pending resolution of the motion for reconsideration, 

which the District Court denied on September 22, 1998, 

when it also adopted the Magistrate Judge's Report and 

Recommendation on a wide range of issues relating to the 

forfeitures. Both parties assume that we have jurisdiction 

to review the District Court's order of September 22, 1998. 

We do not. McGlory only appealed the January 3, 1997 

order. 

The Federal Rules of Civil Procedure do not specifically 

refer to a motion to reconsider but such motions, iffiled 

within ten days of judgment, are generally treated as 

motions to alter or amend judgment under Rule 59(e) of the 

Federal Rules of Civil Procedure. See Federal Kemper Ins. 

Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir. 1986); 

Campbell v. Bartlett, 975 F.2d 1569, 1580 n.15 (10th Cir. 

1992). We therefore analyze McGlory's motion to reconsider, 

which was timely, as though he had filed it under Rule 

59(e). 

Federal Rule of Appellate Procedure 4(a) provides that a 

notice of appeal filed before the disposition of one of the 

motions specified in Rule 4(a)(4)(A), including a Rule 59(e) 

motion, will become effective upon entry of the order 

disposing of the motion. Because McGlory filed his notice of 

appeal from the court's January 3, 1997 order while the 

Rule 59(e) motion was pending, the notice of appeal became 

effective on September 22, 1998 -- the date the District 

Court entered its order denying that motion. See Fed. R. 

App. P. 4(a)(4)(B)(i). However, in order to contest the denial 

of a Rule 59(e) motion, a new or amended notice of appeal 

must be filed. Thus, when the District Court denied

 6 
McGlory's Rule 59(e) motion on September 22, 1998, 

McGlory could proceed with his appeal of the January 3, 

1997 order denying his Rule 41(e) motion without further 

filing, but if he wanted the appeal to encompass any 

challenge to the order of September 22, 1998, he was 

required to file an amended notice of appeal. See Fed. R. 

App. P. 4(a)(4)(B)(ii). He failed to do so. 

Patently, McGlory's original notice of appeal from the 

January 3, 1997 order could not confer jurisdiction over 

the District Court's September 22, 1998 order denying 

reconsideration. See United States v. Rivera Construction 

Co., 863 F.2d 293, 298 (3d Cir. 1988) ("However, where the 

order or judgment upon which the appellant seeks review is 

neither directly nor indirectly referred to in the notice of 

appeal, then the issue is not fairly raised and the Court of 

Appeals does not acquire jurisdiction.") (internal quotation 

omitted). We therefore must limit our review to the merits 

of the January 3, 1997 order denying McGlory's Rule 41(e) 

motion. It follows that the District Court's disposition 

of certain issues (such as laches) in its Memorandum 

Order of September 22, 1998, adopting the Report and 

Recommendation of the Magistrate Judge, is not properly 

before us. 

II. 

The government states in its brief that "[t]he district court 

may have lacked subject-matter jurisdiction over the entire 

claim." United States Brief at 19. As we understand the 

government's position, it is that jurisdiction may be lacking 

both because McGlory's challenge is to an administrative 

forfeiture and because McGlory's motion was filed after the 

completion of the underlying criminal proceedings. We have 

not previously considered whether a district court lacks 

jurisdiction over a Rule 41(e) motion on either of these 

grounds. 

Rule 41(e) provides: 

 A person aggrieved by an unlawful search and seizure 

 or by the deprivation of property may move the district 

 court for the district in which the property was seized 

 for the return of the property on the ground that such 

 7 
 person is entitled to lawful possession of the property. 

 The court shall receive evidence on any issue of fact 

 necessary to the decision of the motion. If the motion 

 is granted, the property shall be returned to the 

 movant. . . . 

Fed. R. Crim. P. 41(e). 

McGlory's Rule 41(e) motion requested that the 

government return property seized from him and forfeited 

by the DEA in administrative and judicial proceedings,4 as 

well as property seized from him for which no forfeiture 

proceedings had been instituted and for which the 

government has failed to provide an accounting. 

The civil forfeiture of property that constitutes the 

proceeds of drug transactions is authorized by 21 U.S.C. 

S 881(a).5 When the seized property is $500,000 or less, the 

government may use the administrative forfeiture process 

governed by the customs laws; this process entails no 

judicial involvement. See 19 U.S.C. S 1607;6 21 U.S.C. 

_________________________________________________________________ 

4. In this appeal, McGlory has not renewed his challenge to the notice 

provided in the judicial forfeiture proceedings, although that issue is 

before the court in the related appeals referred to in note 1 supra. 

5. Section 881(a) provides in pertinent part: 

 The following shall be subject to forfeiture to the United States 

and 

 no property right shall exist in them . . . 

 (6) All moneys, negotiable instruments, securities, or other things 

of 

 value furnished or intended to be furnished by any person in 

 exchange for a controlled substance or listed chemical in violation 

of 

 this subchapter, all proceeds traceable to such an exchange, and 

all 

 moneys, negotiable instruments, and securities used or intended to 

 be used to facilitate any violation of this subchapter. . . . 

6. Section 1607 provides: 

 If . . . the value of such seized vessel, vehicle, aircraft, 

merchandise, 

 or baggage does not exceed $500,000 [,]. . . the appropriate 

customs 

 officer shall cause a notice of the seizure of such articles and 

the 

 intention to forfeit and sell or otherwise dispose of the same 
 according to law to be published for at least three successive 

weeks 

 in such manner as the Secretary of the Treasury may direct. Written 

 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. 

 8 
S 881(d).7 The government is required to publish notice of 

its intent to forfeit the property once a week for three weeks 

and to send written notice to any party known to have an 

interest in the property. See 19 U.S.C.S 1607(a). If a 

claimant files a claim and a cost bond within 20 days after 

the first publication, the administrative process is halted 

and the seizing agency must turn the matter over to the 

United States Attorney to commence a judicial forfeiture 

proceeding, see 19 U.S.C. S 1608, which is the procedure 

automatically followed for property valued over $500,000. 

See 19 U.S.C. S 1610. If a claimant fails to file the bond to 

contest the forfeiture, the seizing agency will make a 

declaration of forfeiture and title will vest in the United 

States. See 19 U.S.C. S 1609(a). This administrative 

declaration has the same effect as a final decree and order 

of forfeiture entered in a judicial proceeding. See 19 U.S.C. 

S1609(b). 

A district court ordinarily lacks jurisdiction to review the 

DEA's administrative forfeiture proceedings. See Linarez v. 

United States Dep't of Justice, 2 F.3d 208, 212 (7th Cir. 

1993) ("[O]nce the government initiates an administrative 

forfeiture proceeding and the property is not the subject of 

an ongoing criminal proceeding, the district court loses 

jurisdiction to resolve the issue of return of property."). 

However, "the federal courts have universally upheld 

_________________________________________________________________ 

7. Section 881(d) states: 

 The provisions of law relating to the seizure, summary and judicial 

 forfeiture, and condemnation of property for violation of the 

customs 

 laws; the disposition of such property or the proceeds from the 

sale 

 thereof; the remission or mitigation of such forfeitures; and the 

 compromise of claims shall apply to seizures and forfeitures 

 incurred, or alleged to have been incurred, under any of the 

 provisions of this subchapter, insofar as applicable and not 

 inconsistent with the provisions hereof; except that such duties as 

 are imposed upon the customs officer or any other person with 

 respect to the seizure and forfeiture of property under the customs 

 laws shall be performed with respect to seizures and forfeitures of 

 property under this subchapter by such officers, agents, or other 

 persons as may be authorized or designated for that purpose by the 

 Attorney General, except to the extent that such duties arise from 

 seizures and forfeitures effected by any customs officer. 

 9 
jurisdiction to review whether an administrative forfeiture 

satisfied statutory and due process requirements." United 

States v. Woodall, 12 F.3d 791, 793 (8th Cir. 1993) (citing 

cases). 

Some courts have found equity jurisdiction appropriate to 

review a claimant's challenge to the sufficiency of the notice 

on the theory that a claimant who received inadequate 

notice lacked an adequate remedy at law. See United States 

v. Claggett, 3 F.3d 1355, 1356 (9th Cir. 1993) (reasoning 

that "[i]f notice of the pending forfeiture was inadequate, 

. . . then the forfeiture proceeding was never available to 

[the claimant] in any meaningful sense."); Sarit v. U.S. Drug 

Enforcement Admin., 987 F.2d 10, 17 (1st Cir. 1993)

("Whereas most challenges to forfeiture would be foreclosed 

by . . . failure to utilize [the statutory mechanism], courts 

have entertained challenges to the adequacy of notice, 

reasoning that the mechanism is not available to a plaintiff 

who is not properly notified of the pending forfeiture."). 

Further, those courts which have allowed limited judicial 

review of an administrative forfeiture proceeding on due 

process grounds have also ruled that a Rule 41(e) motion 

filed after criminal proceedings have terminated is an 

acceptable means of obtaining review. For example, the 

Court of Appeals for the First Circuit has held that"[w]here 

criminal proceedings against the movant have already been 

completed, a district court should treat a rule 41(e) motion 

as a civil complaint." United States v. Giraldo, 45 F.3d 509, 

511 (1st Cir. 1995) (internal quotation omitted). Other 

courts have agreed. See Weng v. United States , 137 F.3d 

709, 711 n.1 (2d Cir. 1998) (same); United States v. Clark, 

84 F.3d 378, 381 (10th Cir. 1996) (same); Woodall, 12 F.3d 

at 794 n.1 (holding that a Rule 41(e) motion filed by a pro 

se plaintiff after criminal proceedings have ended should be 

liberally construed as seeking to invoke the proper remedy); 

United States v. Martinson, 809 F.2d 1364, 1366-67 (9th 

Cir. 1987) (holding that a district court has jurisdiction 

over a motion to return property styled as a Rule 41(e) 

motion, and should treat such motion as a civil equitable 

proceeding). 

We find the reasoning of these cases persuasive and now 

hold that a district court has jurisdiction to consider a 

 10 
claim that a person received inadequate notice of completed 

administrative forfeiture proceedings, notwithstanding that 

the claim was styled as a Rule 41(e) motion andfiled after 

criminal proceedings had been completed. Accordingly, we 

conclude that the District Court had jurisdiction to 

consider McGlory's claim that he received inadequate notice 

of the DEA's administrative forfeiture proceedings.

III. 

We thus turn to the narrow issue before us on this 

appeal: whether a pretrial detainee in custody of the 

Marshals Service has a due process right to have notice of 

administrative forfeiture proceedings mailed by the

forfeiting agency directly to the pretrial detainee at the 

institution where s/he is being housed. The procedure 

followed by the DEA in this case, and apparently its general 

practice, was to mail a notice addressed to the detainee to 

or care of the Marshals Service at its office in the 

Pittsburgh courthouse, a practice that McGlory contends 

does not comport with due process. 

The government argues that due process was satisfied by 

sending the notices to the Marshals Service because under 

the Service's standard office procedure "any correspondence 

addressed to a person in custody . . . [was] forwarded . . . 

to the intended recipient, at his place of confinement, by 

first class mail, postage prepaid." Declaration of Gary 

Richards, Chief Deputy, United States Marshals Service, 

App. at 104. McGlory argues, in contrast, "that in order to 

satisfy constitutional requirements, the DEA was required 

to address the certified mail containing the notices to 

[McGlory] at the prison where the government was 

confining him." McGlory's Reply Br. at 7-8; see also 

McGlory's Opening Br. at 19-20.8 Thus the parties are 

_________________________________________________________________ 

8. Because McGlory has not contended in his brief on this appeal that 

due process required more of the government than sending certified 

mail, return receipt requested, to him at his place of confinement, we are 

not faced with the issue before the court in United States v. Assorted 

Jewelry, No. 98-3579, namely, whether the government must ensure 

actual notice or take additional steps to increase the likelihood of 

actual 

notice, to prisoners in its custody. See Commonwealth of Pennsylvania 

Dep't of Public Welfare v. United States Dep't of Health & Human Servs., 

101 F.3d 939, 945 (3d Cir. 1996) (argument not properly raised in brief 

is deemed waived on appeal). 

 11 
joined on the issue whether the government has fulfilled its 

responsibility under the Due Process Clause to give

reasonable notice under the circumstances by relying on 

the Marshals Service to forward notice to the detainee when 

the government, in whose custody the detainee is 

committed, is uniquely well situated to ascertain the 

detainee's whereabouts. 

The District Court did not meet this issue directly in its 

order of January 3, 1997, the only order properly before us, 

as it found that McGlory was personally served with notice 

of the administrative forfeitures. McGlory has consistently 

maintained that he was not personally served; further, even 

the government does not contend that McGlory was 

"personally served" (the language used by the District 

Court) by delivery to him. Although the DEA's notices were 

sent to the Marshals Service certified mail, return receipt 

requested, the Marshals Service allegedly remailed them by 

first class mail to McGlory at the prison where he was 

detained. As previously noted, the government has not 

produced any return receipts signed by McGlory. 

The statute governing administrative forfeitures requires, 

in addition to notice by publication, "[w]ritten notice . . . to 

each party who appears to have an interest in the seized 

article." 19 U.S.C. S 1607(a). That this notice must be one 

that satisfies the Due Process Clause is beyond 

peradventure. A half century ago, the Supreme Court

declared that "[a]n 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." Mullane v. Central Hanover Bank 

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

Twenty-three years later, in Robinson v. Hanrahan, 409 

U.S. 38 (1972), the Court addressed the question whether 

a notice of forfeiture, mailed to a prisoner's home address 

by the government entity in whose custody the prisoner 

was held, was constitutionally sufficient. In a brief, per 

curiam opinion, the Court, repeating the language from 

Mullane quoted above, held that it was not: 

 12 
 In the instant case, the State knew that appellant 

 was not at the address to which the notice was mailed 

 and, moreover, knew also that appellant could not get 

 to that address since he was at that very time confined 

 in the Cook County jail. Under these circumstances, it 

 cannot be said that the State made any effort to 

 provide notice which was `reasonably calculated' to 

 apprise appellant of the pendency of the forfeiture 

 proceedings. 

Id. at 40. In so ruling, the Court suggested that the notice 

provided "with respect to an individual whose name and 

address are known or easily ascertainable," id., must be 

such notice that can be put to practical use. It cited its 

earlier decision in Covey v. Town of Somers, 351 U.S. 141 

(1956), where it held that even mailing of a notice of 

foreclosure was inadequate if the individual involved was 

incompetent and without the protection of a guardian. 

Consistent with the principle enunciated in these cases, the 

Court stated in Mennonite Board of Missions v. Adams, 462 

U.S. 791, 800 (1983), that "[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." 

(emphasis omitted). 

We took guidance from these cases in United States v. 

$184,505.01 in U.S. Currency, 72 F.2d 1160 (3d Cir. 1995), 

a case involving an earlier set of forfeitures of other of 

McGlory's property. In that case, the government sent 

notices to McGlory's last known address but made no

attempt to reach him at his place of confinement. We held 

this attempt inadequate under Robinson and Mennonite 

Board, stating, "McGlory argues, in our view persuasively, 

that Robinson and Adams together required that the 

government at least make an attempt to serve him with 

notice of the forfeiture proceedings in prison." Id. at 1163 

(emphasis added). Robinson alone should be dispositive of 

the issue in this case. 

The government cites no authority, and we are aware of 

none, that suggests that the forfeiting agency may delegate 

its responsibility by mailing notice to the Marshals Service 

 13 
in Pittsburgh when the forfeiting agency is aware that the 

intended recipient is confined elsewhere. Even assuming 

arguendo that mailing the notices to the Marshals Service 

is more likely to reach the prisoner than mailing them to 

his last known address, the defect in $184,505.01, it is still 

inadequate when the government department or agency

responsible for giving notice, here the DEA, knows or can 

quickly and easily obtain the place where the prisoner is 

confined. 

The constitutional imperative derived from Mullane and 

Robinson and their progeny plainly suggests that in order to 

give notice that meets the requirement of due process, the 

agency responsible for sending notice must, at least in the 

first instance, address and direct notice to the detainee at 

his place of confinement. This hardly imposes an onerous 

burden as the DEA did in fact mail notices to McGlory. Its 

deficiency was in not mailing them to McGlory's place of 

confinement. Rather than the two step process followed 

here, which entailed mailing McGlory's notices to the 

Marshals Service in Pittsburgh and relying on it to remail 

them to McGlory at the institution where he was then 

detained, the DEA could have ascertained McGlory's 

whereabouts at the relevant time from the Marshals Service 

(which acts as the locator for all persons in federal custody) 

and mailed its notices to him directly. 

It is not a novel proposition to hold that due process 

requires that notice to prisoners be directed and mailed to 

the prisoner where detained. Numerous decisions by other 

courts of appeals so hold. See, e.g., Weng v. United States, 

137 F.3d 709, 714 (2d Cir. 1998) ("Absent special justifying 

circumstances, the least that can be asked . . . is that [the 

forfeiting agency] determine where the claimant is detained 

and send the notice to the right institution."); United States 

v. Clark, 84 F.3d 378, 381 (10th Cir. 1996) ("When the 

government is aware that an interested party is 

incarcerated, due process requires . . . an attempt to serve 

him with notice in prison."); Torres v. $36,256.80 U.S. 

Currency, 25 F.3d 1154, 1161 (2d Cir. 1994) ("[I]f the DEA 

had desired to give [claimant] actual notification, a simple 

call to the Bureau of Prisons would have sufficed to reveal 

where [he] was serving his sentence."). Cf. United States v. 

 14 
Real Property, 135 F.3d 1312, 1316 (9th Cir. 1998) 

(rejecting due process challenge when notice was sent, inter 

alia, to institution where claimant was confined). 

The government also argues that because pretrial 

detainees are often moved between detention facilities and 

McGlory could have been moved after the DEA ascertained 

his whereabouts and sent the mail, "sending notice via the 

Marshals Service was the most reasonable and efficient 

means available for the DEA to provide McGlory with actual 

notice of its administrative actions." United States brief at 

23. Even if we assume that the Marshals Service actually 

followed its policy and remailed the notices, and the 

government introduced no such evidence, using the 

Marshals Service as a conduit for forfeiture notices may 

exacerbate rather than cure the problem it was designed to 

solve. McGlory could have been moved after the Marshals 

Service itself sent the mail. And adding the Marshals 

Service in the chain of mailers duplicates the number of 

agencies handing the mail, thereby increasing the 

possibility of error, and doubles the time until his receipt 

which is hardly a more reasonable attempt at service than 

mailing the notices directly to the detainee in thefirst 

place. 

There is no suggestion in this case that McGlory was 

moved about with such rapidity that it would not have been 

possible for mail to catch up with him. All of the 

administrative forfeiture notices at issue here were mailed 

between September 26 and November 15, 1989. What little 

record evidence there is suggests that McGlory was not 

moved during this time and that at least the U.S. Attorney's 

office knew where McGlory was for at least part of that 

time. See Case Information Reports filed by U.S. Attorney 

William Conley on October 4, 1989 and December 11, 

1989, listing McGlory's place of confinement as Hancock 

County Jail. 

Moreover, the DEA did not even make an attempt to 

reach him at his place of confinement, as we held was 

required in $184,505.01, 72 F.3d at 1163. Due process 

does not require an infallible method of giving notice. But 

before relying on the Marshals Service policy, which 

apparently failed in these six instances, the DEA had at 

 15 
hand a method more "reasonably calculated, under all the 

circumstances, to apprise interested parties of the

pendency of the action." Mullane, 339 U.S. at 314. As the 

Supreme Court in Mullane stressed, "when notice is a 

person's due, process which is a mere gesture is not due 

process. The means employed must be such as one 

desirous of actually informing the absentee might 

reasonably adopt to accomplish it." 339 U.S. at 315. One 

who was "desirous of actually informing" McGlory would 

have taken the time to ascertain the easily ascertainable 

fact of his whereabouts and would, at the least, have 

directed the notices to him at that address."9 

We thus hold that, at a minimum, due process requires 

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

_________________________________________________________________ 

9. At oral argument, McGlory did not press the position that due process 

mandates the use of certified as opposed to ordinary first class mail. In 

fact, "[c]ertified mail is dispatched and handled in transit as ordinary 

mail." United States Postal Service, Domestic Mail Manual, Issue 54, 

S912.1.1 (12/2/1999) (on the Web at http://pe.usps.gov/). As the Postal 

Service explains, the principal advantage of this type of service is 

evidentiary. Id. ("Certified mail service provides the sender with a 

mailing 

receipt, and a delivery record is kept at the post office of address."). 

Although we have at times noted the obvious evidentiary value of 

certified or registered mail, we have not required notice to be effected 

in 

that manner. See, e.g., Zimmer Paper Prods., Inc. v. Berger & Montague, 

P.C., 758 F.2d 86, 91-93 (3d Cir. 1985) (first class mail and publication 

provided adequate notice in class action suit); United States v. Smith, 

398 F.2d 173, 176-78 (3d Cir. 1968) (notice of divorce proceeding need 

not be sent by certified or registered mail); see also, e.g., DePiero v. 

City 

of Macedonia, 180 F.3d 770, 788-89 & n.9 (6th Cir. 1999) (notice of right 

to contest parking ticket may be sent first class mail); Armendariz-Mata 

v. DEA, 82 F.3d 679, 683 (5th Cir. 1996) ("Under most circumstances, 

notice by ordinary mail is sufficient to discharge the government's due 

process obligations."); Weigner v. City of New York, 852 F.2d 646, 650-51 

(2d Cir. 1988) (notice of tax foreclosure may be sent regular mail). Nor 

has the Supreme Court suggested a distinction of constitutional 

magnitude between these types of mail. See, e.g., Tulsa Prof 'l Collection 

Servs., Inc. v. Pope, 485 U.S. 478, 490 (1988) ("notice by mail" 

sufficient 

to provide actual notice of probate proceedings); Mullane v. Central 

Hanover Bank & Trust Co., 339 U.S. 306, 318-19 (1950) (trust 

beneficiaries had to be notified "at least by ordinary mail" . . . which 

is 

"recognized as an efficient and inexpensive means of communication"). 
 16 
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. Whether 

anything more is required is not presently before us in this 

appeal. 

IV. 

For the reasons set forth we will vacate the District 

Court's order of January 3, 1997 granting summary 

judgment to the government with regard to DEA seizure 

numbers 52425, 65613, 65615, 66651, 65323 and 67065

and remand to the District Court for further proceedings 

consistent with this opinion.10 

_________________________________________________________________ 

10. We note that the District Court's order of January 3, 1997 did not 

address McGlory's claim to property he contends was seized but never 

subjected to administrative or judicial forfeiture, although McGlory did 

raise the issue in his Rule 41(e) motion. The Magistrate Judge's report 

of July 23, 1998, adopted by the District Court in its September 22, 

1998 order denying McGlory's motion for reconsideration, did address 

ten household items, and having determined that the government had 

properly accounted for all but two of the ten disputed items, determined 

that the government should return to McGlory a stereo system and 

camera which were seized but never forfeited or the value of these items. 

The status of the remaining twenty-six items that McGlory claims were 

also seized but not forfeited is not before us. The District Court may 

address them on remand. 

 17 
ALITO, Circuit Judge, dissenting: 

I dissent from the judgment of the court and from part III 

of the court's opinion, which concerns the constitutionality 

of the notice of forfeiture that was provided in this case. I 

cannot agree with the majority's decision on this issue 

because it seems to me to be plainly inconsistent with the 

legal rule on which the majority purports to rely. According 

to the majority, "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 

must be mailed to the detainee at his or her place of 

confinement." Maj. Op. at 16-17. That is precisely what 

may well have happened in this case, and yet the 

majority holds that the manner in which notice was given 

here violated due process. 

In the majority's view, the following procedure should 

have been used. An employee of the Drug Enforcement

Administration (a component of the Department of Justice) 

should have ascertained from the United States Marshals 

Service (another component of the Department of Justice) 

where McGlory was held at the various times in question1 

and then sent the notices of forfeiture to McGlory at those 

locations by first-class mail. Instead, this is what 

happened. An employee of the DEA sent the notices to the 

Marshals Service, which had legal custody of McGlory, 

knew his exact location at all times, and has extensive 

experience and responsibilities relating to the service of 

process. The notices were received by the Marshals Service 

(the DEA produced certified mail receipts for all of the 

notices at issue), and, if the Marshals Service followed its 

standard practice, the Marshals Service forwarded the 

notices "to the intended recipient at his place of 

confinement, by first class mail, postage prepaid." App. at 

104. Indeed, the Chief Deputy Marshal for the Western 

_________________________________________________________________ 

1. At no time in this appeal has McGlory disputed the fact that he was 

moved from one facility to another during the relevant period. Indeed, in 

a submission filed shortly before the en banc argument, McGlory stated: 

"[T]he government saw fit to house Mr. McGlory while he was in their 

custody during this period at a number of state facilities which were 

apparently under contract with the federal government to house federal 

prisoners." Appellant's Oct. 25, 1999, Letter-Brief at 4 (emphasis added). 

 18 
District of Pennsylvania affirmed that during the time in 

question "to the best of [his] knowledge and belief, the 

standard office procedures of the United States Marshal 

Service were followed, and all such correspondence was 

forwarded to Reginald D. McGlory at his place of 

confinement by first class mail, postage prepaid." Id. at 

105. Thus, if the Chief Deputy Marshal's belief and

knowledge are correct and the standard practice of the 

Marshals Service was followed, notice of the forfeitures was 

mailed to McGlory at his place of confinement by first-class 

mail -- precisely what the majority says that due process 

demands. 

Why, then, does the majority think that due process was 

violated? The majority provides no express explanation. The 

majority opinion appears to hint at two possible 

explanations, but neither is supportable. First, the majority 

may believe that it is essential that the notice be sent to the 

detainee's place of confinement by "the forfeiting agency," 

Maj. Op. at 11, in this case the DEA, rather than the 

Marshals Service. Compare Weng v. United States, 137 F.3d 

709, 715 (3d Cir. 1998)(treating the forfeiting agency, the 

DEA, and another component of the Justice Department, 

the Bureau of Prisons, as one entity for the purpose of due 

process notice requirements in administrative forfeiture of 

property of detainee). The majority, however, provides no 

reason for this requirement, and there is no constitutional 

basis for it. The forfeiture proceedings were brought in the 

name of the United States, and I fail to see why it matters 

for due process purposes whether the notices were mailed 

by a person working for the DEA or the Marshals Service. 

Suppose that the notices had been mailed by an employee 

of the United States Attorney's office or an employee of the 

Criminal Division of the Department of Justice in 

Washington. Would that make the notices constitutionally 

inadequate? 

The other possible ground for the majority's decision is 

internal Executive Branch efficiency. The majority opines 

that "adding the Marshals Service in the chain of mailers 

duplicates the number of agencies handling the mail, 

thereby increasing the possibility of error, and doubles the 

time until . . . receipt [by the detainee]." Maj. Op. at 15. But 

 19 
even if this is true, it does not matter for purposes of the 

Due Process Clause. What matters for due process 

purposes is that notice is in fact mailed to the right place 

at the right time. If those requirements are met, any 

inefficiency in the internal government procedures leading 

up to the mailing is a matter for the Executive, not the 

Judiciary.2 

In sum, the en banc majority has rendered a decision 

that mailing by the Marshals Service, as opposed to the 

DEA, violates the Constitution, but the majority fails to say 

why, and no plausible explanation is apparent. I urge the 

majority to explain why it matters for due process purposes 

whether the notices were sent by the DEA or the Marshals 

Service. Since the majority has yet to offer such an 

explanation, and since none is apparent I would hold, 

contrary to the majority, that due process was satisfied in 

this case -- provided that the Marshals Service followed its 

standard practice and sent the notices in question to 

McGlory by first-class mail at his place or places of 

confinement. It is far from clear that McGlory has raised on 

appeal the argument that in fact the Marshals Service did 

not follow its standard practice with respect to the notices 

in question,3 but I would give him the benefit of the doubt 

on this point and remand for a factual finding by the 

District Court. If the District Court finds that the Marshals 

Service never sent the notices, I would agree with the 

_________________________________________________________________ 

2. The majority's suggestion that its decision is supported by Robinson v. 

Hanrahan, 409 U.S. 38 (1972), and United States v. $184,505.01, 72 

F.3d 1160 (3d Cir. 1995), is plainly incorrect. Both cases held that due 

process was violated where notice of forfeiture was sent to the home 

address of a person who was incarcerated, rather than the place where 

he was being held, even though the government knew that the detainee 

was in custody. Neither case had anything to do with the issue 

presented here, viz., whether due process was violated because the DEA, 

instead of mailing the forfeiture notices directly to McGlory's place of 

confinement, mailed them to the Marshals Service, and the Marshals 

Service, if it followed its standard practice, then forwarded them to 

McGlory. 

3. Rather, the main thrust of McGlory's argument, like the majority's 

analysis, focuses on the conduct of the DEA, and he contends that the 

DEA's actions -- mailing the notices to the Marshals Service -- were 

constitutionally inadequate. 

 20 
majority that due process was not provided. But if the 

Court finds that the Marshals Service did send the notices, 

I would hold that due process was satisfied. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 21