In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3169

MARCIAL L. CHAIREZ,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 02 C 0456—Barbara B. Crabb, Chief Judge.

____________

ARGUED NOVEMBER 12, 2003—DECIDED JANUARY 27, 2004

____________

Before BAUER, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge. In October 2000 Marcial Chairez

was convicted of distributing cocaine, 21 U.S.C. § 841(a)(1),

and carrying a firearm during and in relation to a drug

trafficking crime, 18 U.S.C. § 924(c)(1)(A). In August 2002

Chairez filed a post-conviction motion, ostensibly under

Fed. R. Crim. P. 41(g) (formerly Rule 41(e)), seeking the

return of money that was seized by Drug Enforcement

Agency (“DEA”) agents and later forfeited administratively

to the United States. The district court correctly construed

the motion as initiating a civil proceeding, see United States

v. Duke, 229 F.3d 627, 629 (7th Cir. 2000); United States v.
2 No. 02-3169

Solis, 108 F.3d 722, (7th Cir. 1997) (post-conviction Rule 41(e)

motion treated as civil equitable proceeding for return of

property). It then denied Chairez’s request, concluding that

he had failed to contest the forfeiture in a timely manner

despite having been given notice that complied with due

process. We modify the judgment to clarify that the matter

was dismissed for lack of subject matter jurisdiction and, as

modified, affirm. 

I.

In May 2000, DEA agents were executing a search warrant

involving drugs at the residence of Marcial Chairez when

they seized $1420 from the purse of Rosalba RomeroChairez. Two months after the seizure, DEA counsel began

administrative forfeiture proceedings by mailing written

notice of the impending forfeiture and an explanation of the

procedures. See 21 U.S.C. § 881(a)(6) (subjecting to forfeiture

“[a]ll moneys . . . 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 . . . used or

intended to be used to facilitate any violation of this

subchapter”); id. § 881(d) (applying procedures used for

judicial and summary administrative forfeiture procedures

under customs law to controlled substances forfeitures); 19

U.S.C. §§ 1607-1609 (detailing summary administrative

forfeiture procedures, including notice requirements). At the

time, Chairez was in jail in Dane County, Wisconsin,

awaiting trial on federal charges, and the DEA sent notice to

him there by certified mail. A jail staff member named Carol

Rice signed for Chairez’s letter. The DEA also sent three

copies of the notice by certified mail to Chairez’s home

address in Curtiss, Wisconsin, and Rosalba Romero-Chairez
No. 02-3169 3

1 Rosalba Romero-Chairez, whose purse contained the money

seized, apparently had actual notice of the forfeiture proceedings,

but did not file a claim. That failure does not affect Chairez’s due

process challenge to his certified mail notice, which is the only

issue before this court.

signed for the delivery of all three.1 Notice of the seizure

was also published in The Wall Street Journal for three

successive weeks. Chairez did not file a claim for the

money, so the DEA’s declaration of forfeiture automatically

vested title in the United States. 19 U.S.C. § 1609(b); see also

Linarez v. United States Dep’t of Justice, 2 F.3d 208, 210 (7th

Cir. 1993). Because Chairez never filed a claim for the

money before the forfeiture, the district court’s jurisdiction

in this action was limited; the court could not inquire into

the propriety of the forfeiture but could decide only

whether the notice procedures complied with due process.

See Kreicioch v. United States, 221 F.3d 976, 980 (7th Cir.

2000); Linarez, 2 F.3d at 213. On the limited question of

notice, our review is de novo. Garcia v. Meza, 235 F.3d 287,

290 (7th Cir. 2000).

II.

Chairez argues that the notice given did not comply with

due process. He correctly identifies Dusenbery v. United

States, 534 U.S. 161 (2002), as the relevant authority. In that

case the Supreme Court specifically considered what the

government must do to notify an incarcerated person about

administrative forfeiture proceedings. There the FBI had

sent notice by certified mail to Dusenbery at FCI Milan

where he was incarcerated. Id. After prison staff signed to

verify receipt, the mail went through the prison’s internal

mail delivery system, which included a mail room and a

logbook to track the mail as it moved through the system.
4 No. 02-3169

Because the logbook did not document the final stage of

delivery to inmates, however, the government could not

prove that Dusenbery actually received notice. The Supreme

Court held that due process does not require proof of actual

notice. Due process requires only that notice be “reasonably

calculated, under all the circumstances, to apprise interested

parties of the pendency of the action.” Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); Kreicioch,

221 F.3d at 979. Under that standard, the Court concluded

the government had afforded Dusenbery adequate notice by

sending it to him at the prison. 

In this case, Chairez seeks to focus our attention on how

the Dane County Jail’s internal mail delivery procedures

differ from the internal mail delivery procedures at FCI

Milan. He contends that because mail at the Dane County

Jail changes hands more and because there is no similar

tracking system in place, the government cannot prove that

it sent notice reasonably calculated to reach him. The

government counters that Dane County’s internal procedures are not significantly different from those at FCI Milan.

But we see no reason to enter into this debate because we

do not read Dusenbery to require federal agencies seeking

administrative forfeiture—or courts, if the forfeiture is later

challenged—to inquire into the details of internal mail

delivery systems of jails and prisons. Such a requirement

would be burdensome and impractical given that every

facility handles mail differently. Also, especially in the case

of state and local facilities, the added burden would not

carry any benefits because it is unlikely that federal agents

could affect the way individual facilities handle their mail.

Beyond certified delivery to the jail or prison, short of actual

notice there is no standard that could universally apply to

institutions that vary in size, population, administration,
No. 02-3169 5

and staff supervision. Because Dusenbery does not require

actual notice via acknowledged receipt by the prisoner, the

certified delivery and acceptance of the notice of forfeiture

by authorized jail personnel reasonably apprised Chairez of

the pendency of the forfeiture action. The government

published notice in a newspaper of general circulation, sent

certified mail to the incarcerated party’s last known address,

sent notice by certified mail to the prison where he was

incarcerated, and produced the signed receipt showing that

the notice arrived at the jail. Service by certified mail has

long been considered an acceptable means to provide notice.

See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 796 n.3

(1983) (citing Hess v. Pawloski, 274 U.S. 352 (1927) (approving registered mail)), and there is no evidence in this case

that the DEA knew of any problems with the jail’s certified

mail delivery system. See Garcia v. Meza, 235 F.3d 287, 290

(7th Cir. 2000).

III.

Because Chairez was afforded adequate notice of the

administrative forfeiture action, the district court lacked

subject matter jurisdiction to consider his claim to the property. Accordingly, we modify the judgment of the district

court to reflect a dismissal based on lack of subject matter

jurisdiction and AFFIRM the modified judgment.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-27-04