In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3894

KYM LOBZUN,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 4065—Paul E. Plunkett, Judge.

____________

ARGUED JUNE 10, 2005—DECIDED SEPTEMBER 2, 2005

____________

Before FLAUM, Chief Judge, and POSNER and KANNE,

Circuit Judges.

FLAUM, Chief Judge. The Drug Enforcement Administration (“DEA”) seized a large sum of currency from plaintiffappellant Kym Lobzun, and after sending Lobzun notice of

intention to forfeit the money, declared the property

forfeited. Lobzun then filed a motion seeking the return of

the property on the ground that the notice provided by the

government prior to the forfeiture was constitutionally

inadequate. The district court denied the motion, finding

that the notice satisfied due process. Lobzun appeals, and

for the reasons stated herein, we affirm.

I. Background
2 No. 04-3894

On September 3, 2003, DEA agents seized $379,931 in

United States currency from Lobzun in Chicago, Illinois. At

the time of the seizure, the currency was in twelve

clear plastic heat-sealed packages. The agents gave Lobzun

a DEA form entitled “Address Acknowledgment/Receipt for

Seized Property.” Among other things, the form listed the

date, amount of money seized, DEA case number, and the

address of the DEA’s chief counsel in Arlington, Virginia.

The form stated that if the DEA sought to forfeit the seized

currency, it would provide Lobzun with written notice. The

form also stated that if Lobzun had any questions about her

notice, she should send them to the office of the DEA’s chief

counsel at the address provided. The form indicates that

Lobzun advised the agents that her address was: 257 W.

King Edward, Vancouver, BC, V54 2J1.

No charges were ever filed against Lobzun in connection with the seizure of funds. Lobzun nevertheless retained an attorney in Canada, John Conroy, to represent

her interest in the funds. Conroy advised Lobzun to

notify him immediately and provide him with a copy of any

notice or correspondence she received from the DEA.

On October 2, 2003, Lobzun told Conroy that she had

received a telephone message from Ken Pavlina, a DEA

agent in the Chicago office. On October 3, 2003, Lobzun

received another message from Pavlina in which he left

his telephone number. On October 6, 2003, Conroy contacted Pavlina by telephone. During this conversation,

Conroy advised Pavlina that he was representing Lobzun in

connection with the September 3, 2003 seizure of funds and

provided Pavlina with his contact information. Pavlina told

Conroy that Lobzun would receive notice of the seizure.

The DEA sent Lobzun a “Notice of Seizure” dated October

7, 2003. The notice was addressed to “Kym Louise Lobzun
No. 04-3894 3

aka Kim Louise Lobzun” and was sent by certified mail to

the address Lobzun had provided at the time of the seizure:

257 W. King Edward, Vancouver, BC V542J1 Canada. The

notice identified the property in question as $379,931.00 in

U.S. Currency seized in Chicago, Illinois on September 3,

2003. The form advised:

Pursuant to Title 18, U.S.C. Section 983 and Title 19

U.S.C. Sections 1602-1619, procedures to administratively forfeit this property are underway. You may

petition the DEA for return of the property or your

interest in the property (remission or mitigation),

and/or you may contest the seizure and forfeiture of the

property in Federal court. You should review the

following procedures very carefully.

The form further explained the procedures for requesting remission or mitigation of forfeiture and for contesting the forfeiture. To request remission or mitigation,

Lobzun would have to file a petition with the Forfeiture

Counsel of the DEA within thirty days of her receipt of the

notice. In order to contest the forfeiture in district court

pursuant to 18 U.S.C. § 983, Lobzun had to “file a claim

with the Forfeiture Counsel of the DEA by November 11,

2003.”

The return receipt for that notice indicates that it was

received at the correct address on November 3, 2003. The

signature in the space designated for “signature of the

addressee,” however, is illegible.

Lobzun and her attorney had no further contact with the

DEA until December 22, 2003. On that date, Conroy left

Pavlina a message stating that Lobzun had not yet received

notice of the seizure. Pavlina returned the call on December

29, 2003, and left Conroy a message stating that the DEA’s

records showed that Lobzun had received written notice of

the seizure on November 3, 2003.
4 No. 04-3894

As of January 5, 2004, no administrative claims had been

filed, and the DEA administratively forfeited the money,

claiming title pursuant to 19 U.S.C. § 1609(b). Two days

later, on January 7, Pavlina again called Conroy to confirm

that Conroy had received his previous message. Conroy

called back the same day and informed Pavlina that Lobzun

still had not received the notice. He asked Pavlina to

provide him with a copy of the notice that purportedly had

been sent to Lobzun. The next day, January 8, 2004,

Pavlina faxed Conroy a copy of a DEA notice from another

case along with a note stating that he was providing a

“sample of the notice that was sent to Lobzun.” Pavlina

explained that, because “the notice is mailed out of [the

DEA’s] headquarters in Virginia,” he did not have access to

the original notice that was sent to Lobzun. The same day,

the DEA’s Asset Forfeiture Section mailed Conroy copies of

the notice that had been sent to Lobzun and the signed

certified mail return receipt showing that the notice had

been received on November 3, 2003. For reasons that are

unclear from the record, Conroy did not receive these

documents until January 28, 2004.

After he received the January 8, 2004 fax from Pavlina,

Conroy consulted with another attorney in California,

David Michael. On January 22, 2004, Michael wrote a letter

to Douglas Kash, a senior attorney in the DEA’s Asset

Forfeiture Section, stating that Lobzun had never received

notice regarding the seizure. Michael also requested all

documentation pertaining to the notice and administrative

forfeiture of Lobzun’s property. In response, the DEA sent

Michael copies of the relevant documents. On February 9,

2004, after reviewing these documents, Michael wrote

another letter to Kash advising him that the signature on

the return receipt was not Lobzun’s. Michael asserted that

the DEA should have been aware since November 3, 2003

that Lobzun had not received notice of the forfeiture. He

requested that the DEA immediately set aside the forfeiture
No. 04-3894 5

1 In her reply brief, Lobzun argues that the government’s

representation that it allowed her an opportunity to file a late

claim is “disingenuous.” She reasons that, because the declaration

of forfeiture had already been made, the sole remedy available to

her was a motion to set aside the administrative forfeiture

pursuant to 18 U.S.C. § 983(e). We need not resolve the question

of whether petitioner could have filed a petition for remission

within the additional thirty-day period referred to in Kash’s letter

because the only question properly before this Court is whether

the original notice of seizure sent by the DEA prior to the

forfeiture comported with due process.

2 Rule 41(g) provides that “[a] person aggrieved by an unlawful

search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in

the district where the property was seized. The court must receive

evidence on any factual issue necessary to decide the motion. If it

grants the motion, the court must return the property to the

movant, but may impose reasonable conditions to protect access

to the property and its use in later proceedings.”

and permit Lobzun to file an administrative claim pursuant

to 18 U.S.C. § 983 or any other applicable statute or

regulation.

In a letter dated February 22, 2004, Kash responded that,

although the notice provided by the DEA was legally

adequate, as a matter of discretion, it would grant Lobzun

thirty additional days to file a petition for remission of

the seized currency. The letter referred Michael to the

Notice of Seizure for further information. Lobzun did not

file such a petition with the DEA.1

On June 16, 2004, Lobzun filed a motion for the return of

property in district court pursuant to Federal Rule of

Criminal Procedure 41(g),2

 arguing that the government’s

notice to her did not satisfy the constitutional requirements

of due process. The district court denied Lobzun’s motion,

concluding that, although it would have been appropriate

for the government to begin the notice process anew once it
6 No. 04-3894

3 Although publication is not at issue here, the record indicates

that the notice in this case was published in The Wall Street

Journal.

learned that Lobzun had not received the notice that had

been sent, the government had satisfied the minimum

requirements of due process. Lobzun appeals.

II. Discussion

The federal government is authorized to forfeit “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” as well

as “all proceeds traceable to such an exchange.” 21 U.S.C.

§ 881(a)(6). In order to institute a forfeiture action for

property valued at $500,000 or less, the government must

comply with the notice procedures set forth in 19 U.S.C.

§§ 1607-1609. See 18 U.S.C. § 981(d); 21 U.S.C. § 881(b).

Section 1607(a) of Title 19 requires the appropriate customs

officer to send “written notice of the seizure together with

information on the applicable procedures . . . to each party

who appears to have an interest in the seized article.” The

statute and regulations also require the government to

publish notice of the seizure and intent to forfeit the

property for at least three weeks “in a newspaper of general

circulation in the judicial district” in which the proceeding

for forfeiture is brought. See id.; 21 C.F.R. § 1316.75(a).3

 A

person claiming an interest in such property has twenty

days from the date of the first publication of the notice to

file a claim and post a bond. See 19 U.S.C. § 1608. If no

such claim is filed, the property will be declared forfeited

and title will vest in the United States. See § 1609.

Federal courts have jurisdiction to review whether the

notice provided in the administrative forfeiture proceed-
No. 04-3894 7

ing afforded the claimant constitutional due process. Garcia

v. Meza, 235 F.3d 287, 290 (7th Cir. 2000); Krecioch v.

United States, 221 F.3d 976, 980 (7th Cir. 2000). If the

notice fails to comport with the requirements of due

process, the underlying forfeiture action is void. Garcia, 235

F.3d at 290. We review de novo the issue of whether the

DEA’s notice procedures complied with due process. Chairez

v. United States, 355 F.3d 1099, 1101 (7th Cir. 2004).

“An 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. Cent. Hanover Bank & Trust Co., 339 U.S. 306,

314 (1950), quoted in Garcia, 235 F.3d at 290. Absent

exceptional circumstances, written notice of forfeiture by

certified mail to the claimant’s residence satisfies due

process, even if the claimant does not receive actual notice.

Garcia, 235 F.3d at 290; Krecioch, 221 F.3d at 981; see also

Dusenbery v. United States, 534 U.S. 161, 170 (2002) (due

process does not require the government to provide actual

notice). Due process is not satisfied, however, “if the

notifying party knew or had reason to know that the notice

would be ineffective.” Krecioch, 221 F.3d at 980 (holding

that written notice sent to claimant’s residence after the

government knew he had been incarcerated was inadequate).

Lobzun relies on our decision in Garcia in arguing that

the notice in her case was inadequate because the government learned prior to the forfeiture that she had not

received actual notice. She asserts that, once the DEA

was informed prior to the forfeiture that she had not

received the notice, it was constitutionally obligated to

resend the notice. In Garcia, we held that written notice

of forfeiture proceedings that was returned to the federal government as “undeliverable” five days after it was
8 No. 04-3894

sent did not meet the minimum requirements of due

process. 235 F.3d at 291. We declined, however, to “impose

an affirmative duty upon the government to seek out

claimants in each case where its initial notice is returned

undelivered or to require actual notice in every case.” Id.

Rather, we envisioned a case-specific approach, following

the due process standard set forth in Mullane, which

requires us to consider all the circumstances of each case to

determine whether the notice provided is reasonably

calculated to apprise the claimant of the impending proceeding. Id.

In Garcia, federal agents had seized $21,700 in cash

found on top of a bedroom dresser during a search of the

plaintiffs’ apartment. Id. at 288. The plaintiffs attempted to

reclaim the money through various courses, including filing

an action for conversion in state court as well as a federal

claim under the Federal Tort Claims Act. Id. at 288-89. One

month after the plaintiffs filed their administrative claim

(which they had to exhaust before they could pursue a

federal tort remedy), the Secret Service sent written notice

of impending forfeiture proceedings to each of the potential

claimants via Federal Express overnight delivery. See id. at

289. Five days later, Federal Express returned each of the

letters to the Secret Service indicating that they were

undeliverable. Id. The government never attempted to

resend the notice, and the Secret Service administratively

forfeited the funds several months later. Id. at 289, 291.

In Garcia, as in this case, it was undisputed that the

notice was adequate at the time it was sent. Id. at 290. The

question was whether the government was required to do

more after it learned from the third-party carrier that the

notice was not received. Id. at 291. We summarized the

facts in that case as follows:

While the government may have believed at the time of

sending the FedEx that it was providing ade-
No. 04-3894 9

quate notice, five days later it was specifically notified

that the attempted delivery by Federal Express was not

successful. Thus, three months before the government

administratively forfeited the plaintiffs’ property, it

knew for a fact that the plaintiffs had never received

written notice of the impending proceeding instructing them how to correctly petition for the return of their

property.

Id. Under those specific circumstances, we found that

the unsuccessful written notice provided to the plaintiffs did

not meet the minimum due process standards required under Mullane. Id.

This case differs significantly from Garcia in that here, it

is undisputed that the DEA successfully sent notice to the

address provided by Lobzun. The delivery was confirmed by

a third-party carrier through the return receipt signed at

that address. When Lobzun’s attorney told Agent Pavlina

several weeks later that his client claimed not to have

received the notice, Pavlina did not simply ignore Conroy’s

phone call. He followed up by double-checking the DEA

records and again informing Conroy that the notice had

been received at Lobzun’s address on November 3, 2003.

Pavlina received no further response from Lobzun or her

attorney throughout the following week, during which time

the forfeiture took place. The DEA was not obligated to wait

for further communication from plaintiff before proceeding

with the forfeiture.

In Garcia, we found it significant that the government

was aware that the plaintiffs were actively pursuing their

interest in the forfeited property. See id. (“It is ironic that

the government was involved in extended litigation with the

plaintiffs, pointedly admonishing them to exhaust their

administrative remedy under the [Federal Tort Claim Act],

and yet was unable to provide the plaintiffs with actual

notice of its ongoing forfeiture proceeding.”). In this case, by
10 No. 04-3894

contrast, both Lobzun’s and her attorney’s attempts to

pursue Lobzun’s interest in a much larger sum of money

were comparatively lax. Despite the information provided

on her original receipt instructing Lobzun to contact DEA

headquarters in Virginia if she had any questions about her

claim, plaintiff made no such effort. Furthermore, once the

DEA agent informed Lobzun’s attorney that the DEA

records showed that Lobzun had received notice almost two

months earlier, Conroy waited nine days (albeit during the

holiday season) to return the call, and even then did so only

after another follow-up call from the agent. By that time,

the forfeiture had already taken place. Under these circumstances, it was reasonable for the DEA to assume that

Lobzun had received the notice but had decided not to file

a claim.

Plaintiff is essentially seeking a per se rule requiring

the government to resend notice if a potential claimant

later says she did not receive the notice despite written

documentation from a third-party carrier that the original notice was received at the correct address. We decline

to adopt such a rule. The Supreme Court has not required

that the government achieve actual notice; “it requires only

that the Government’s effort be ‘reasonably calculated’ to

apprise a party of the pendency of the action.” Dusenbery,

534 U.S. at 170. Moreover, the rule advocated by Lobzun

would provide incentives for potential claimants to delay in

pursuing their claims and then later assert that they never

received proper notice. To avoid this kind of deceptive

behavior, the government would be forced to achieve actual

notice in every case.

We conclude that the notice provided by the DEA to

Lobzun was “reasonably calculated, under all the circumstances” to apprise plaintiff of the pendency of the forfeiture

proceeding and afford her an opportunity to present her

objections. See Mullane, 339 U.S. at 314. The DEA did not

deprive plaintiff of any process she was due.
No. 04-3894 11

III. Conclusion

For the foregoing reasons, we AFFIRM the decision of

the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-2-05