2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-30-2011 

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w . v i l l a no v a . e du/thir dc ir c uit_2011/980NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_________________ No. 10

- 2179

_________________ UNITED STATES OF AMERICA

v. VICTOR RODRIGUEZ , Appellant

_________________ On Appeal from the United States District Co urt for the Eastern District of Pennsylvania (D.C. Crimina l Action No. 2

- 98

- cr - 00362

- 012 ) District Judge: Honorable Louis H. Pollak

_________________ Submitted Pursuant to Third Circuit LAR 34.1(a) Before: AMBRO, HARDIMAN and VAN ANTWERPEN , Circuit Jud ges (Opinion filed : June 30, 2011 )

_________________ OPINION

_________________ PER CURIAM Victor Rodriguez appeals the District Court’s rejection of his motion for the return of prop erty filed pursuant to Rule 41( g ) of the Federal Rules of Criminal Procedure. For the reasons set forth below, we will affirm in part, vacate in part, and remand to the District Court for further proceedings.2 As part of a drug trafficking investigation, the Government seized propert y belonging to Victor Rodriguez. 1

(1) Home at 3030 North Lawrence Street, Philadelphia, Pennsylvania In 2005, Rodriguez filed a motion for the return of property pursuant to Rule 41(g). He identified eight items of property:

(2) 1995 Windstar minivan ( 3) 1995 Suzuki motorcycle (4) 1991 Lincoln Towncar (5) 1995 Hyundai Sonata (6) 1995 Red Lexus SC

- 400 (7) 1996 Pontiac Grand Am (8) Kawasaki jet ski In response, the Government argued that items 1 and 2 had not been seized, that venue in the Eastern Dist rict of Pennsylvania was not proper for items 6, 7, and 8 because they had been seized in Puerto Rico, and that all statutory and due process requirements had been satisfied in providing Rodriguez with notice of the seizure and intent to forfeit the remain ing items . The District Court agre ed and, by order entered March 10, 2010, rejected Rodriguez ’ s claims for the return of property. Rodriguez appealed. Thereafter, Rodriguez filed a motion for recons i deration under Federa l Rule of Civil Procedure 60(b) , arguing that the District Court should have transferred to the District of Puerto Rico that portion of his motion which sought return of the items seized there. T he District Court agreed that “the venue defect could have been cured by a transfer to the proper venue for the claims related to items 6, 7, and 8.” The District

1 Rodriguez pleaded guilty in December 2002 to multiple charges including conspiracy to distribute cocaine, murder for hire, and c onspiracy to commit murder for hire. He was sentenced to imprisonment for life.3 Court also noted that “dismissal effectively destroyed [Rodriguez’s] ability to refile the motion in the proper venue because, by that point, the six

- year statute of limitations had

r un. ” Therefore, citing Federal Rule of Civil Procedure 62.1(a)(3), the District Court certified that it would grant Rodriguez’s motion for reconsideration and “issue an order transferring the po rtion of his claims relating to items 6, 7, and 8 to the Uni ted States District Court for the District of Puerto Rico, if the Court of Appeals remands for those
purposes .” Venen v. Sweet , 758 F.2d 117, 123 (3d Cir. 1985) (holding that while a district court lacks jurisdiction to deny a 60(b) motion while an appeal is pending, it can certify that it will grant a 60(b) motion if the Court of Appeals remands the case for that
purpose ) . The Government has agreed that such a remand order is appropriate. Accordingly, we will vacate and remand in part so that, consisten t with the District
Court’s order of December 13, 2010, that portion of Rodriguez’s motion which seeks return of property seized in Puerto Rico may be transferred to the District of Puerto Rico. As explained below, however, we will affirm the District Cou rt’s denial of Rodriguez’s Rule 41(g) motion in all other respects. We have juris diction under 28 U.S.C. § 1291, and we review the District Court’ s decision for abuse of discretion. United States v. Chambers , 192 F.3d 374, 376 (3d Cir. 1999).4 Rodriguez a rgued that he did not receive sufficient notice of the forfeiture of items 3, 4, and 5. 2

Here, a ccording to a declaration submitted by a DEA attorney in response to Rodriguez’s Rule 41(g) motion , Rodriguez was a fugitive and his whereabouts were unknown when agents seized items 3, 4, and 5 . On February 1, 1999, the DE A sent , by United States v. McGlory , 202 F.3d 664, 670 (3d Cir. 2000) (en banc) (holding that District Court s have jurisdiction to review “a claim that a person received inadequ ate notice of completed administrative forfeiture proceedings ”). In these circumstances, due process requires that notice to the property owner be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the a ction and afford them an opportunity to present their objections.” Dusenbery v. United S tates , 534 U.S. 161, 168 (2002), ( quoting Mullane v. Central Hanover Bank &
Trust Co. , 339 U.S. 306, 314 (1950) )

. Pursuant to statute and regulation, the government must provide “[w] ritten notice of seizure together with information on the applicable procedures

. . . to each party who appears to have an interest in the seized article,” 19 U.S.C. § 1607(a) , and must publish notice “in a newspaper of general circulation in the judicial district in which the processing for forfeiture is brought.” 21 C.F.R. § 1316.75(a) ; see also Longenette v. Krusing , 322 F.3d 758 , 760

- 61 (3d Cir. 2003)

. Notably, “[d]ue process does not require an infallib le method of giving notice.”
M cGlory , 202 F.3d at 673.

2 Rodriguez does not challenge the District Court’s dismissal, on mootness grounds, of his motion for return of items 1 and 2.5 certified mail, notice of the seizure of items 3 and 4 to Rodriguez and his girlfrie nd at their last two known address es , on Norcross Lane and North Orianna Street in Philadelphia . Letters sent to the Norcross Lane address was returned stamped , “RETURNED TO SENDER, MOVED, LEFT NO ADDRESS.” The letters sent to the address on North Orianna Street were returned stamped , “RETURNED TO SENDER,
REFUSED.” The DEA also sent notice to the manager of the storage facility where these items had been found ; those notices were accepted for delivery on February 5, 1999

. Notice of the seizure of items 3 and 4 was also published in USA Today on three successive weeks in February 1999. On March 22, 1999, the DEA sent, by certified mail, written notice s of the s eizure of item 5 to the address on Norcross Lane (which were returned stamped “RETURNED TO SENDER, INSUFFICIENT ADDRESS) and to an address on North “D” Street in Philadelphia (which were accepted for delivery) . Notice of the seizure of i tem 5 was publishe d in USA Today on March 31 , April 7, and April 14, 1999. Rodr iguez failed to respond to the notices or assert a timely claim to the items , which were administratively forfeited. We conclude that publication of the notices in USA Today s atisfies the noti ce by publication requirement. There is no merit to Rodriguez’s argument that the DEA had an obligation to determine whether he was a subscriber before choosing a newspaper of general circulation. See United States v. Robinson , 434 F.3d 357, 367 (5 th Cir. 2005) (holding that Government’s choice to publish notice in the New York Times did not6 violate statutory publication requirements even though publication in the Houston Chronicle would have been more likely to provide notice to the claimant ). With respec t to the notices sent by certified mail, Rodriguez suggests that the DEA should have taken further steps to locate him once its initial notices were returned as undelivered. In support of this argument, Rodriguez relies on Foehl v. United States , 238 F.3d 474 (3d Cir. 2001) . There, the DEA sent notice only to an address which the claimant had provided at the time of his arrest. The letter was returned with the notation , “RETURNED TO SENDER

- ATTEMPTED NOT KNOWN.” Id. at 476. We held that the attempt to p rovide notice was insufficient because the DEA failed to check with four “obvious sources” to ascertain the claimant’s address

. Here, by contrast, there is no indication that Rodriguez’s whereabouts were “reasonably ascertainable.” Id. at 479. Indeed, a t the time the notifications were sent, Rodriguez was a fugitive wanted on murder for hire char ges. See United States v. Rodgers , 108 F.3d 1247 , 1253 (10 th Cir. 1997) (stating that “ fugitive status is also a factor to be considered in determining what

no t ification steps are reasonable ”)

. Rodriguez does assert that the DEA “had two additional [Philadelphia] addresses . . . in its possession to locate and noti[fy] [him] of the pending forfeiture.” 3

3 As the Government points out, only one of the locations identified by Rodriguez − 3030 N. Lawrence Street, Philadelphia, Pennsylvania − is an actual address. The other location is identified simply as “the 5100 Block of Arbor Street, Philadelphia, Pennsylvania.” He also claims that the DEA had in its files various addr esses in7 Puerto Rico where Rodriguez could be located. 4

For the reasons given, we will affirm in part, vacate in part, and remand for further proceedings. Importantly , however, Rodriguez did not raise these argument s in the District Court

. See Brown v. Phillip Morris, Inc. , 250 F.3d 789, 799 (3d Cir. 2001) (“ [A]rguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible of review in this Court ab sent exceptional circumstances.” ). Under these circumstances, we find that the District Court did not abuse its discretion in finding that sufficient notice was given to Rodriguez about the seizures and the forfeiture s . In addition, because there are no disputed factual issues,

we reject Rodriguez’s assertion that the District Court should have held an evidentiary hearing

. United States v. Albinson , 356 F.3d 278 , 281

- 82 (3d Cir. 2004).

4 The DEA did send notices to various addresses in Puerto Rico in connection with items seized there. Those notices were returned marked, “RETURNED TO SENDER.”