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. e du/thir dc ir c uit_2000/15Filed 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 Stat es 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 administra tive forfeiture of certain property seized by officers o f the Drug Enforcement Administration ("DEA").

McGlory was arrested, tried, convicted, and sentenc ed to life imprisonment for various drug and firearm offe nses. 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 byfili ng 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 administrat ive forfeiture notices that are the subject of this app eal,1 we must decide whether the District Court had jurisdic tion to consider McGlory's Rule 41(e) motion. Only if it ha d can we consider the important, albeit narrow, issue whethe r

___________________________________________________ ______________

1. Also before the en banc court are consolidated a ppeals in United States v. One Toshiba Color Television, Two Answeri ng Machines, and One Health Tech Computer, No. 98-3578, and United S tates v. Assorted Jewelry, No. 98-3579. Although those appeals involv e the identical parties and similar fact patterns as the present ap peal, they raise distinct legal issues and will be addressed hereaft er in a separate opinion.

2adequate notice of administrative forfeiture procee dings is

provided to a prisoner who is in local detention fa cilities by mailing the notices to an office of the United Stat es Marshals Service.

I.

On September 8, 1989, DEA agents and local Pittsbur gh officers arrested McGlory for conspiracy to possess heroin with intent to distribute. At that time, and pursua nt to search warrants, the officers seized property, incl uding cash, from McGlory's apartment at 236 South Negley Avenue in Pittsburgh, Pennsylvania, his mother's ho me at 4267 Bryn Mawr Road in Pittsburgh, Pennsylvania, an d 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 Unite d States Marshals Service pending trial. By arrangeme nt between federal and state authorities, federal pret rial
detainees are often housed in state detention facil ities.

McGlory was indicted by a federal grand jury on Oct ober 4, 1989. He was charged with possession of a firear m after having been convicted of a felony, conspiracy to di stribute heroin, and possession of heroin with intent to dis tribute. McGlory pled not guilty, and the court ordered a tr ial 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 crimi nal charges against McGlory. McGlory was arraigned on t he superseding indictment on December 21, 1989. He aga in pled not guilty to each charge. McGlory's trial beg an on April 25, 1990. On May 16, 1990, the jury returned its verdict finding McGlory guilty of each of the charg es set forth in the superseding indictment.

McGlory was sentenced on February 11, 1991 and was remanded to the custody of the Bureau of Prisons le ss than
two weeks later. He therefore remained in the custo dy 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. McG lory has

3stated that during this time he was housed in vario us

pretrial detention facilities, but neither he nor t he government introduced evidence of the facilities in which he
was confined or the dates of his confinement at eac h facility. This court has reviewed the record of McG lory's criminal trial and finds references to McGlory's in itial detention on September 11, 1989 and thereafter on December 11, 1989 in Hancock County Jail, West Virg inia, which suggests that he was detained there during th at period. This encompasses the relevant period for th e purpose of this appeal. We note other references th at suggest that from approximately May 18, 1990 until at least August 2, 1990 he was housed in Fayette Count y Jail, Uniontown, Pennsylvania. By November 9, 1990, he ha d been moved to the Ohio County Jail in Wheeling, Wes t 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 t he time McGlory was in the custody of the United State s Marshals Service, the DEA initiated administrative forfeiture proceedings regarding the property cover ed by DEA seizure numbers 52425 ($8,800 cash), 65613 (assorted clothing), 65615 (Louis Vuitton luggage), 2 66651 (Louis Vuitton luggage/briefcase), 65323 (miscellan eous 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 circulat ion. The DEA also sent notice by certified mail, return rece ipt

___________________________________________________ ______________

2. The luggage is misnamed throughout the record as Louis Vitton. The
brand name is well known and the accurate name is L ouis Vuitton.

3. The government also initiated administrative for feiture proceedings regarding eleven other DEA seizure numbers: 64582, 68735, 73402, 68730, 68719, 68727, 64563, 68740, 68729, 68743, an d 72090. The government contends that the property listed at the se 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 tha t has been returned to the lienholder, and McGlory did not list this am ong the seizure numbers challenged on appeal. See Appellant's Brief at 4.

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

.

Negley Avenue, Pittsburgh, Pennsylvania, and his mo ther's residence at 4267 Bryn Mawr Road, Pittsburgh, Pennsylvania. Finally, the DEA sent notice by certi fied mail, return receipt requested, addressed to McGlory to o r in care
of the United States Marshals Service at the federa l courthouse located at 7th and Grant Street, Pittsbu rgh, 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 pr operty seized until April 11, 1994 when he filed a pro se motion under Rule 41(e) for the return of the seized prope rty. This was after the completion of the criminal trial proc eedings on February 11, 1991. On February 3, 1995, the Dist rict Court referred McGlory's Rule 41(e) motion for the return of the seized property to a Magistrate Judge for a rep ort and recommendation. While the matter was pending, this court decided United States v. $184,505.01 In U.S. Curren cy, 72 F.3d 1160 (3d Cir. 1995), another challenge by McGl ory to different forfeitures, where we held that the notic e given to McGlory in two of three judicial forfeiture proceed ings 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 preju dice to the judicial forfeiture actions. On December 30, 19 96, before the District Court ruled on the Report and Recommendation, McGlory's counsel filed a motion fo r permission to file an amended Rule 41(e) motion and to stay any further proceedings on McGlory's pro se Ru le 41(e)
motion.

On January 3, 1997, the District Court determined t hat 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, Sli p op. at 1, 4 (W.D. Pa. Jan. 3, 1997). The court opined that "[t]he administrative forfeiture proceedings did not suffe r from the same defective notice problem as the judicial forfe iture proceedings, see United States v. $184,505.01 In U. S.

5Currency, 72 F.3d 1160 (3d Cir. 1995), since petiti oner 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 wh ich it referred, nor did it expressly rule on McGlory's mo tion to file an amended Rule 41(e) motion.

On January 13, 1997, McGlory, through counsel, file d a motion for reconsideration of the January 3, 1997 o rder denying his Rule 41(e) motion. On January 14, 1997, he filed a notice of appeal from that same order witho ut waiting for any order from the District Court. We s tayed the appeal pending resolution of the motion for reconsi deration, which the District Court denied on September 22, 19 98, when it also adopted the Magistrate Judge's Report and Recommendation on a wide range of issues relating t o the forfeitures. Both parties assume that we have juris diction to review the District Court's order of September 2 2, 1998. We do not. McGlory only appealed the January 3, 199 7

order.

The Federal Rules of Civil Procedure do not specifi cally refer to a motion to reconsider but such motions, i ffiled 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 Kempe r Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir. 1986); Campbell v. Bartlett, 975 F.2d 1569, 1580 n.15 (10t h Cir. 1992). We therefore analyze McGlory's motion to rec onsider, which was timely, as though he had filed it under R ule 59(e).

Federal Rule of Appellate Procedure 4(a) provides t hat a notice of appeal filed before the disposition of on e of the motions specified in Rule 4(a)(4)(A), including a R ule 59(e) motion, will become effective upon entry of the ord er 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 Dis trict Court entered its order denying that motion. See F ed. 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

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

McGlory could proceed with his appeal of the Januar y 3, 1997 order denying his Rule 41(e) motion without fu rther filing, but if he wanted the appeal to encompass an y challenge to the order of September 22, 1998, he wa s required to file an amended notice of appeal. See F ed. 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 denyi ng reconsideration. See United States v. Rivera Constr uction Co., 863 F.2d 293, 298 (3d Cir. 1988) ("However, wh ere the order or judgment upon which the appellant seeks re view 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 dispos ition of certain issues (such as laches) in its Memorandu m Order of September 22, 1998, adopting the Report an d Recommendation of the Magistrate Judge, is not prop erly

before us.

II.

The government states in its brief that "[t]he dist rict court may have lacked subject-matter jurisdiction over th e 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 administr ative forfeiture and because McGlory's motion was filed a fter 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 t he district court for the district in which the property was seized for the return of the property on the ground that such

7person is entitled to lawful possession of t he property.

The court shall receive evidence on any issu e of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned t o the

movant. . . .

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

McGlory's Rule 41(e) motion requested that the government return property seized from him and forf eited by the DEA in administrative and judicial proceedin gs,4 as well as property seized from him for which no forfe iture proceedings had been instituted and for which the government has failed to provide an accounting.

The civil forfeiture of property that constitutes t he 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 pr ocess governed by the customs laws; this process entails no judicial involvement. See 19 U.S.C. S 1607;6 21 U.S .C.

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4. In this appeal, McGlory has not renewed his chal lenge to the notice provided in the judicial forfeiture proceedings, al though 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, secu rities, or other things

of
value furnished or intended to be furnished by any person in exchange for a controlled substance or liste d chemical in violation

of this subchapter, all proceeds traceable to s uch an exchange, and

all moneys, negotiable instruments, and securiti es used or intended to be used to facilitate any violation of this subchapter. . . .

6. Section 1607 provides:

If . . . the value of such seized vessel, ve hicle, 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 d ispose of the sameaccording to law to be published for at leas t three successive

weeks in such manner as the Secretary of the Treas ury may direct. Written notice of seizure together with information on the applicable procedures shall be sent to each party who a ppears to have an
interest in the seized article.

8S 881(d).7 The government is required to publish no tice of

its intent to forfeit the property once a week for three weeks and to send written notice to any party known to ha ve an interest in the property. See 19 U.S.C.S 1607(a). I f a
claimant files a claim and a cost bond within 20 da ys after the first publication, the administrative process i s halted and the seizing agency must turn the matter over to the United States Attorney to commence a judicial forfe iture proceeding, see 19 U.S.C. S 1608, which is the proc edure automatically followed for property valued over $50 0,000.
See 19 U.S.C. S 1610. If a claimant fails to file t he bond to contest the forfeiture, the seizing agency will mak e a declaration of forfeiture and title will vest in th e United States. See 19 U.S.C. S 1609(a). This administrativ e declaration has the same effect as a final decree a nd order of forfeiture entered in a judicial proceeding. See 19 U.S.C. S1609(b).

A district court ordinarily lacks jurisdiction to r eview the DEA's administrative forfeiture proceedings. See Li narez v. United States Dep't of Justice, 2 F.3d 208, 212 (7t h Cir. 1993) ("[O]nce the government initiates an administ rative forfeiture proceeding and the property is not the s ubject of an ongoing criminal proceeding, the district court loses jurisdiction to resolve the issue of return of prop erty."). However, "the federal courts have universally uphel d

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7. Section 881(d) states:

The provisions of law relating to the seizur e, summary and judicial forfeiture, and condemnation of property for violation of the

customs laws; the disposition of such property or th e 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 ap plicable and not inconsistent with the provisions hereof; exc ept that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of pro perty under the customs laws shall be performed with respect to seiz ures and forfeitures of property under this subchapter by such offic ers, agents, or other persons as may be authorized or designated f or that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any cus toms officer.

9jurisdiction to review whether an administrative fo rfeiture

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 appropri ate to review a claimant's challenge to the sufficiency of the notice on the theory that a claimant who received inadequa te notice lacked an adequate remedy at law. See United States v. Claggett, 3 F.3d 1355, 1356 (9th Cir. 1993) (rea soning that "[i]f notice of the pending forfeiture was ina dequate, . . . then the forfeiture proceeding was never avai lable 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 fo reclosed by . . . failure to utilize [the statutory mechanis m], courts have entertained challenges to the adequacy of noti ce, reasoning that the mechanism is not available to a plaintiff who is not properly notified of the pending forfeit ure.").

Further, those courts which have allowed limited ju dicial review of an administrative forfeiture proceeding o n due process grounds have also ruled that a Rule 41(e) m otion 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 tha t"[w]here criminal proceedings against the movant have alread y 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). O ther 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 juris diction over a motion to return property styled as a Rule 4 1(e) motion, and should treat such motion as a civil equ itable proceeding).

We find the reasoning of these cases persuasive and now hold that a district court has jurisdiction to cons ider a

10claim that a person received inadequate notice of c ompleted

administrative forfeiture proceedings, notwithstand ing that the claim was styled as a Rule 41(e) motion andfile d after criminal proceedings had been completed. Accordingl y, we conclude that the District Court had jurisdiction t o consider McGlory's claim that he received inadequat e 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 t he Marshals Service has a due process right to have no tice of administrative forfeiture proceedings mailed by the forfeiting agency directly to the pretrial detainee at the institution where s/he is being housed. The procedu re followed by the DEA in this case, and apparently it s general practice, was to mail a notice addressed to the det ainee to
or care of the Marshals Service at its office in th e Pittsburgh courthouse, a practice that McGlory cont ends does not comport with due process.

The government argues that due process was satisfie d by sending the notices to the Marshals Service because under the Service's standard office procedure "any corres pondence addressed to a person in custody . . . [was] forwar ded . . . to the intended recipient, at his place of confinem ent, by first class mail, postage prepaid." Declaration of Gary Richards, Chief Deputy, United States Marshals Serv ice, App. at 104. McGlory argues, in contrast, "that in order to satisfy constitutional requirements, the DEA was re quired to address the certified mail containing the notice s to [McGlory] at the prison where the government was confining him." McGlory's Reply Br. at 7-8; see als o McGlory's Opening Br. at 19-20.8 Thus the parties a re

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8. Because McGlory has not contended in his brief o n this appeal that due process required more of the government than se nding 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 governmen t must ensure actual notice or take additional steps to increase the likelihood of

actual notice, to prisoners in its custody. See Commonweal th of Pennsylvania Dep't of Public Welfare v. United States Dep't of H ealth & Human Servs., 101 F.3d 939, 945 (3d Cir. 1996) (argument not prop erly raised in brief is deemed waived on appeal).

11joined on the issue whether the government has fulf illed its

responsibility under the Due Process Clause to give reasonable notice under the circumstances by relyin g on the Marshals Service to forward notice to the detai nee when the government, in whose custody the detainee is committed, is uniquely well situated to ascertain t he
detainee's whereabouts.

The District Court did not meet this issue directly in its order of January 3, 1997, the only order properly b efore us, as it found that McGlory was personally served with notice of the administrative forfeitures. McGlory has cons istently maintained that he was not personally served; furth er, even the government does not contend that McGlory was "personally served" (the language used by the Distr ict Court) by delivery to him. Although the DEA's notic es 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 n ot produced any return receipts signed by McGlory.

The statute governing administrative forfeitures re quires, in addition to notice by publication, "[w]ritten no tice . . . to each party who appears to have an interest in the s eized article." 19 U.S.C. S 1607(a). That this notice mus t 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 calculate d, under all the circumstances, to apprise interested partie s of the pendency of the action and afford them an opportuni ty to present their objections." Mullane v. Central Hanov er 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 wh ether a notice of forfeiture, mailed to a prisoner's home address by the government entity in whose custody the priso ner was held, was constitutionally sufficient. In a bri ef, per curiam opinion, the Court, repeating the language f rom Mullane quoted above, held that it was not:

12In the instant case, the State knew that ap pellant

was not at the address to which the notice w as mailed and, moreover, knew also that appellant coul d not get to that address since he was at that very ti me confined in the Cook County jail. Under these circums tances, it cannot be said that the State made any effor t to provide notice which was `reasonably calcula ted' to apprise appellant of the pendency of the for feiture proceedings.

Id. at 40. In so ruling, the Court suggested that t he notice provided "with respect to an individual whose name and address are known or easily ascertainable," id., mu st be such notice that can be put to practical use. It ci ted 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 involv ed was incompetent and without the protection of a guardia n. Consistent with the principle enunciated in these c ases, the
Court stated in Mennonite Board of Missions v. Adam s, 462 U.S. 791, 800 (1983), that "[n]otice by mail or oth er means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which w ill adversely affect the liberty or property interests of any party . . . if its name and address are reasonably ascert ainable." (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 o ther of McGlory's property. In that case, the government se nt notices to McGlory's last known address but made no attempt to reach him at his place of confinement. W e held this attempt inadequate under Robinson and Mennonit e Board, stating, "McGlory argues, in our view persua sively, that Robinson and Adams together required that the government at least make an attempt to serve him wi th notice of the forfeiture proceedings in prison." Id . at 1163 (emphasis added). Robinson alone should be disposit ive 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 Marshal s Service

13in Pittsburgh when the forfeiting agency is aware t hat the

intended recipient is confined elsewhere. Even assu ming arguendo that mailing the notices to the Marshals S ervice is more likely to reach the prisoner than mailing t hem 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 priso ner 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 proce ss, the agency responsible for sending notice must, at leas t in the first instance, address and direct notice to the de tainee at his place of confinement. This hardly imposes an on erous burden as the DEA did in fact mail notices to McGlo ry. Its deficiency was in not mailing them to McGlory's pla ce of confinement. Rather than the two step process follo wed here, which entailed mailing McGlory's notices to t he Marshals Service in Pittsburgh and relying on it to remail them to McGlory at the institution where he was the n 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 feder al custody) and mailed its notices to him directly.

It is not a novel proposition to hold that due proc ess requires that notice to prisoners be directed and m ailed to the prisoner where detained. Numerous decisions by other courts of appeals so hold. See, e.g., Weng v. Unite d States, 137 F.3d 709, 714 (2d Cir. 1998) ("Absent special j ustifying 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."); Un ited 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 t o reveal where [he] was serving his sentence."). Cf. United States v.

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

(rejecting due process challenge when notice was se nt, inter alia, to institution where claimant was confined).

The government also argues that because pretrial
detainees are often moved between detention facilit ies and McGlory could have been moved after the DEA ascerta ined his whereabouts and sent the mail, "sending notice via the
Marshals Service was the most reasonable and effici ent means available for the DEA to provide McGlory with actual
notice of its administrative actions." United State s brief at
23. Even if we assume that the Marshals Service act ually followed its policy and remailed the notices, and t he government introduced no such evidence, using the
Marshals Service as a conduit for forfeiture notice s may exacerbate rather than cure the problem it was desi gned to solve. McGlory could have been moved after the Mars hals Service itself sent the mail. And adding the Marsha ls Service in the chain of mailers duplicates the numb er of agencies handing the mail, thereby increasing the possibility of error, and doubles the time until hi s receipt which is hardly a more reasonable attempt at servic e than mailing the notices directly to the detainee in the first place.

There is no suggestion in this case that McGlory wa s moved about with such rapidity that it would not ha ve been possible for mail to catch up with him. All of the
administrative forfeiture notices at issue here wer e mailed between September 26 and November 15, 1989. What li ttle record evidence there is suggests that McGlory was not moved during this time and that at least the U.S. A ttorney's office knew where McGlory was for at least part of that time. See Case Information Reports filed by U.S. At torney William Conley on October 4, 1989 and December 11, 1989, listing McGlory's place of confinement as Han cock County Jail.

Moreover, the DEA did not even make an attempt to reach him at his place of confinement, as we held w as required in $184,505.01, 72 F.3d at 1163. Due proce ss does not require an infallible method of giving not ice. But before relying on the Marshals Service policy, whic h apparently failed in these six instances, the DEA h ad at

15hand a method more "reasonably calculated, under al l 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 no t 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 wo uld have taken the time to ascertain the easily ascerta inable fact of his whereabouts and would, at the least, ha ve directed the notices to him at that address."9

We thus hold that, at a minimum, due process requir es that when a person is in the government's custody a nd

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9. At oral argument, McGlory did not press the posi tion that due process mandates the use of certified as opposed to ordinar y first class mail. In fact, "[c]ertified mail is dispatched and handled i n 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 t ype 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 evident iary 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 clas s mail and publication provided adequate notice in class action suit); Uni ted States v. Smith, 398 F.2d 173, 176-78 (3d Cir. 1968) (notice of divo rce proceeding need not be sent by certified or registered mail); see a lso, 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 m ail); Armendariz-Mata v. DEA, 82 F.3d 679, 683 (5th Cir. 1996) ("Under mo st 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 se nt regular mail). Nor has the Supreme Court suggested a distinction of co nstitutional magnitude between these types of mail. See, e.g., T ulsa Prof 'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 490 (1988) ("no tice by mail"
sufficient to provide actual notice of probate proceedings); M ullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318-19 (195 0) (trust beneficiaries had to be notified "at least by ordin ary mail" . . . which
is "recognized as an efficient and inexpensive means o f communication").16detained at a place of its choosing, notice of a pe nding

administrative forfeiture proceeding must be mailed to the detainee at his or her place of confinement. Whethe r anything more is required is not presently before u s in this appeal.

IV.

For the reasons set forth we will vacate the Distri ct Court's order of January 3, 1997 granting summary judgment to the government with regard to DEA seizu re numbers 52425, 65613, 65615, 66651, 65323 and 67065 and remand to the District Court for further procee dings consistent with this opinion.10

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10. We note that the District Court's order of Janu ary 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 Magis trate Judge's report of July 23, 1998, adopted by the District Court in its September 22, 1998 order denying McGlory's motion for reconsidera tion, did address ten household items, and having determined that the government had properly accounted for all but two of the ten dispu ted items, determined that the government should return to McGlory a ster eo system and
camera which were seized but never forfeited or the value of these items. The status of the remaining twenty-six items that M cGlory claims were
also seized but not forfeited is not before us. The District Court may

address them on remand.

17ALITO, Circuit Judge, dissenting:

I dissent from the judgment of the court and from p art III of the court's opinion, which concerns the constitu tionality of the notice of forfeiture that was provided in th is case. I cannot agree with the majority's decision on this i ssue because it seems to me to be plainly inconsistent w ith 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 pl ace of its choosing, notice of a pending administrative fo rfeiture 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 sho uld have been used. An employee of the Drug Enforcement Administration (a component of the Department of Ju stice)
should have ascertained from the United States Mars hals Service (another component of the Department of Jus tice) where McGlory was held at the various times in ques tion1 and then sent the notices of forfeiture to McGlory at those locations by first-class mail. Instead, this is wha t happened. An employee of the DEA sent the notices t o the Marshals Service, which had legal custody of McGlor y, knew his exact location at all times, and has exten sive experience and responsibilities relating to the ser vice of process. The notices were received by the Marshals Service (the DEA produced certified mail receipts for all o f the notices at issue), and, if the Marshals Service fol lowed its standard practice, the Marshals Service forwarded t he 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 Weste rn

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1. At no time in this appeal has McGlory disputed t he fact that he was moved from one facility to another during the relev ant period. Indeed, in a submission filed shortly before the en banc argum ent, McGlory stated: "[T]he government saw fit to house Mr. McGlory whil e he was in their custody during this period at a number of state fac ilities which were apparently under contract with the federal governme nt to house federal prisoners." Appellant's Oct. 25, 1999, Letter-Brief at 4 (emphasis added).

18District of Pennsylvania affirmed that during the t ime in

question "to the best of [his] knowledge and belief , the standard office procedures of the United States Mar shal 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 forfei tures was mailed to McGlory at his place of confinement by fi rst-class mail -- precisely what the majority says that due p rocess demands.

Why, then, does the majority think that due process was violated? The majority provides no express explanat ion. The majority opinion appears to hint at two possible explanations, but neither is supportable. First, th e 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 t he Marshals Service. Compare Weng v. United States, 13 7 F.3d 709, 715 (3d Cir. 1998)(treating the forfeiting age ncy, the DEA, and another component of the Justice Departmen t, the Bureau of Prisons, as one entity for the purpos e of due process notice requirements in administrative forfe iture of property of detainee). The majority, however, provi des no reason for this requirement, and there is no consti tutional basis for it. The forfeiture proceedings were broug ht in the name of the United States, and I fail to see why it matters for due process purposes whether the notices were m ailed by a person working for the DEA or the Marshals Ser vice. Suppose that the notices had been mailed by an empl oyee of the United States Attorney's office or an employ ee of the Criminal Division of the Department of Justice in Washington. Would that make the notices constitutio nally inadequate?

The other possible ground for the majority's decisi on is internal Executive Branch efficiency. The majority opines that "adding the Marshals Service in the chain of m ailers duplicates the number of agencies handling the mail
, thereby increasing the possibility of error, and do ubles the time until . . . receipt [by the detainee]." Maj. O p. at 15. But

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

Due Process Clause. What matters for due process purposes is that notice is in fact mailed to the ri ght place at the right time. If those requirements are met, a ny inefficiency in the internal government procedures leading up to the mailing is a matter for the Executive, no t the Judiciary.2

In sum, the en banc majority has rendered a decisio n that mailing by the Marshals Service, as opposed to the DEA, violates the Constitution, but the majority fa ils to say why, and no plausible explanation is apparent. I ur ge the majority to explain why it matters for due process purposes whether the notices were sent by the DEA or the Mar shals Service. Since the majority has yet to offer such a n explanation, and since none is apparent I would hol d, contrary to the majority, that due process was sati sfied in this case -- provided that the Marshals Service fol lowed 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 Servi ce did not follow its standard practice with respect to th e notices in question,3 but I would give him the benefit of t he doubt on this point and remand for a factual finding by t he
District Court. If the District Court finds that th e Marshals Service never sent the notices, I would agree with the

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2. The majority's suggestion that its decision is s upported 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. Bot h cases held that due process was violated where notice of forfeiture was sent to the home address of a person who was incarcerated, rather th an the place where he was being held, even though the government knew that the detainee was in custody. Neither case had anything to do wit h the issue presented here, viz., whether due process was viola ted because the DEA, instead of mailing the forfeiture notices directly to McGlory's place of confinement, mailed them to the Marshals Service, a nd the Marshals Service, if it followed its standard practice, then forwarded them to McGlory.

3. Rather, the main thrust of McGlory's argument, l ike the majority's analysis, focuses on the conduct of the DEA, and he contends that the DEA's actions -- mailing the notices to the Marshal s Service -- were constitutionally inadequate.

20majority 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

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