IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 05-0398-WS-M

 )

$66,000.00, MORE OR LESS, etc., et al., )

 )

Defendants. )

ORDER

This matter is before the Court on the plaintiff’s “Motion for Court to Conduct on Record

Teleconference with Plaintiff and Counsel for Potential Claimant Rodriguez-Hernandez.” (Doc.

13). The name of counsel is Charles K. Blackmon. The plaintiff requests a teleconference in

order to determine: the status of Blackmon’s representation of Rodriguez-Hernandez; whether

Blackmon provided a copy of process to Rodriguez-Hernandez; the current whereabouts of

Rodriguez-Hernandez; and any additional notice needed to satisfy due process. (Doc. 14 at 3, 9-

10). The motion assumes that there is some doubt requiring clarification as to whether

Rodriguez-Hernandez has received the notice of these civil forfeiture proceedings required by

due process. Because the constitutional requirements have in fact been satisfied, the Court

concludes that the motion for teleconference is due to be denied as moot.

BACKGROUND

In January 2005, members of the Saraland Police Department seized the defendant

currency from Rodriguez-Hernandez and the passenger in the vehicle Rodriguez-Hernandez was

driving. The DEA instituted administrative forfeiture proceedings and served RodriguezHernandez at the Greensboro, North Carolina address he provided at the time of seizure. 

Blackmon, stating the he “represents J. Carlos Rodriguez-Hernandez,” objected to the

administrative forfeiture. (Doc. 14, Exhibit 2). The United States Attorney’s office then 

corresponded with Blackmon in an effort to resolve the dispute. (Id., Exhibit 3). In response,

Blackmon surrendered certain financial records of Rodriguez-Hernandez and copied his client. 

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(Id., Exhibit 4).

In July 2005, the plaintiff filed the instant action. (Doc. 1). In July or August 2005,

plaintiff’s counsel verbally informed Blackmon of the filing of the complaint for civil forfeiture,

and Blackmon indicated that he would meet with his client to consider making a settlement

proposal. (Doc. 14, Exhibit 5). In August 2005, Blackmon responded, stating that “we will offer

to forfeit to the government the sum of $3,300.00.” (Id., Exhibit 6). Also in August, Blackmon

wrote that “we will attempt to comply with your inquiry” concerning production of additional

financial records from Rodriguez-Hernandez. (Id., Exhibit 7). As with previous

correspondence, both letter were copied to his client. (Id., Exhibits 6, 7).

In September 2005, the plaintiff served Blackmon by certified mail with the complaint

and the warrant for arrest. (Doc. 14, Exhibits 9, 10). In October 2005, Blackmon acknowledged

his receipt of these documents, advised that he had “been authorized to offer the sum of

$3,000.00 as final settlement of this matter,” and sought “an extension of time in which to

Answer.” (Id., Exhibit 11). Blackmon copied the letter to Rodriguez-Hernandez. (Id.).

Meanwhile, the plaintiff attempted to notify Rodriguez-Hernandez directly. In

September 2005, the plaintiff sent the complaint and arrest warrant by certified mail, restricted

delivery to the Greensboro address that Rodriguez-Hernandez had previously provided, but the

mail was returned with a notation for moved, left no address. (Hawkins Declaration at 2 &

Exhibit 1). In October 2005, plaintiff’s counsel wrote Blackmon, notified him that his client had

not been personally served, and asked for confirmation that Blackmon had been authorized to

accept service on behalf of his client. (Doc. 14, Exhibit 12). Blackmon did not respond. (Doc.

14 at 6, ¶ 12). In November 2005, plaintiff’s counsel wrote Blackmon, notified him that his

client had moved without a forwarding address, and requested Blackmon to provide his client’s

current address. (Id., Exhibit 13). Again, Blackmon did not respond. (Doc. 14 at 7, ¶ 14). Also

in November 2005, the postal service confirmed that Rodriguez-Hernandez had moved without

leaving a forwarding address. (Doc. 14, Exhibit 14). The plaintiff attempted to locate

Rodriguez-Hernandez through internet search services, but to no avail. (Doc. 14 at 7, ¶ 13). 

In December 2005, the plaintiff sent an agent to Greensboro to investigate the

whereabouts of Rodriguez-Hernandez. Neither his landlord, the current tenant nor a neighbor

had any information about his current location. The agent also attempted to make contact with

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1

E.g., Nunley v. Department of Justice, 425 F.3d 1132, 1139 (8th Cir. 2005); United States

v. Lostia, 12 Fed. Appx. 345, 347 (6th Cir. 2001); United States v. Allen, 2000WL 1699836 at

**1 (4th Cir. 2000); Bye v. United States, 105 F.3d 856, 857 (2nd Cir. 1997).

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Rodriguez-Hernandez’s brother and the owner of the vehicle he was driving when the defendant

currency was seized; both residences were vacant. (Doc. 14, Wright Affidavit at 2-3). 

In January 2006, Blackmon wrote plaintiff’s counsel that “I have been authorized to offer

$5,000.00 to the government as a settlement of this dispatched [sic] claim.” (Id., Exhibit 15). 

Blackmon copied the letter to Rodriguez-Hernandez. (Id., Exhibits 11, 15). Two weeks later,

Blackmon filed a motion to appear pro hac vice “on behalf of $66,000.00, more or less,” (Doc. 7

at 1), which motion was granted several days later. (Doc. 8).

DISCUSSION

[I]ndividuals whose property interests are at stake due to government 

actions are entitled to notice of the proceedings and an opportunity to be heard. 

[citation omitted] The notice necessary to satisfy due process requires only that 

interested persons be given 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. [citation omitted] Reasonable notice, 

however, requires only that the government attempt to provide actual notice; it 

does not require that the government demonstrate that it was successful in providing

actual notice.

Mesa Valderrama v. United States, 417 F.3d 1189, 1196-97 (11th Cir. 2005)(administrative

forfeiture); accord Dusenberry v. United States, 534 U.S.161, 167-71 (2002)(same). “The

means employed must be such as one desirous of actually informing the absentee might

reasonably adopt to accomplish it.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 315 (1950). The plaintiff “submits that its above-enumerated efforts satisfy” this standard. 

(Doc. 14 at 12). The Court agrees.

Appellate courts have routinely held that, when giving actual notice of an administrative

forfeiture proceeding directly to a potential claimant is problematic because of his incarceration,

actual notice to his counsel is notice complying with due process.1

 Other courts have held or

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2

See United States v. Real Property, 135 F.3d 1312, 1315-16 (9th Cir. 1998); United

States v. 51 Pieces of Real Property, 17 F.3d 1306, 1317 (10th Cir. 1994).

3

E.g., id.; United States v. Burks, 49 Fed. Appx. at 575-76; cf. United States v.

$184,505.01, 72 F.3d 1160, 1164 (3rd Cir. 1995)(ongoing representation in related criminal

proceedings insufficient; attorney must represent client in connection with forfeiture). 

4

These steps are at least as heroic as those held sufficient in Cuvillier v. United States,

390 F.3d 1336, 1339 (11th Cir. 2004).

5

It is of course highly unlikely that Blackmon has not shared with his client the notice he

received from the plaintiff. Blackmon not only copied his client on a letter acknowledging the

filing of the action but thereafter continued to negotiate a settlement on his client’s behalf and

even entered an unorthodox appearance on behalf of the defendant currency his client claims to

own. 

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assumed that the same principle applies to civil judicial forfeiture proceedings.2

 Actual notice to

the attorney apparently is adequate only if the attorney then represents the potential claimant in

connection with the forfeiture proceedings or, under most cases, related criminal proceedings.3

These principles apply here. First, the plaintiff attempted to provide actual notice to

Rodriguez-Hernandez at the very address he had given, but could not do so because he had

moved without leaving a forwarding address. Second, the plaintiff took multiple steps to obtain

Rodriguez-Hernandez’s current address, including inquiries to his lawyer and the postal service,

internet searches, and even an on-site investigation complete with interviews and efforts to find

others who might have information.4 Third, Blackmon by his own correspondence admitted that

he at all times represented Rodriguez-Hernandez in connection with both the administrative and

judicial forfeiture proceedings, and his practice of copying his client on correspondence

demonstrates his ability to communicate with him, including for the purpose of providing actual

notice of these proceedings. Whether Blackmon has in fact informed his client that this action

has been instituted is immaterial, because due process does not require actual notice to the

interested party; what matters is that the plaintiff has provided notice reasonably calculated

under all the circumstances to so apprise the interested party. Any failure of Blackmon to

forward this notice to his client may provide grist for a legal malpractice action, but it does not

affect the constitutional efficacy of the notice provided by the plaintiff.5

Because, as a matter of fact and law, Rodriguez-Hernandez has received all the process

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he is due, the purposes for which the plaintiff seeks a teleconference have been accomplished or

rendered unnecessary. Accordingly, the plaintiff’s motion for a teleconference is denied as

moot.

Also pending is the plaintiff’s motion for order of publication. (Doc. 12). The plaintiff

has requested the Court to postpone ruling on this motion “until after the teleconference

requested in this motion.” (Doc. 13, ¶ 4). As there will be no teleconference, the plaintiff is

ordered, on or before March 28, 2006, to file and serve a statement whether it withdraws its

motion for publication or whether it wishes to proceed with the motion, either to comply with 19

U.S.C. § 1607 and/or Supplemental Admiralty Rule C(4), or for any other reason.

 DONE and ORDERED this 21st day of March, 2006.

s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE

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