Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-2001

Foehl v. United States
Precedential or Non-Precedential:

Docket 99-5460




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Filed February 1, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5460

DON AMECHE FOEHL, SR.,
       Appellant,

v.

UNITED STATES OF AMERICA

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. No. 98-cv-02548 )
District Judge: Honorable William G. Bassler

Submitted Pursuant To Third Circuit L.A.R. 34.1(a)
November 14, 2000

Before: SLOVITER, AMBRO, and WEIS, Cir cuit Judges

Filed: February 1, 2001

       Stanley N. Silverman, Esquire
       Law Offices of Silverman &
        Kost, P.C.
       128 South Mountain Avenue
       Montclair, New Jersey 07042

       Attorney for Appellant
       Don Ameche Foehl, Sr.
       Peter W. Gaeta, Esquire
       Assistant United States Attorney
       Robert J. Cleary, Esquire
       United States Attorney
       970 Broad Street, Suite 700
       Newark, New Jersey 07102

       Attorneys for Appellee
       United States of America

OPINION OF THE COURT

WEIS, Circuit Judge.

Plaintiff filed this civil action seeking to invalidate the
administrative forfeiture of $93,163 in United States
currency, which he now asserts was his pr operty. The crux
of his complaint is that the Drug Enforcement
Administration did not properly notify him of the impending
forfeiture. The DEA made a single attempt at notification by
mailing a letter to the plaintiff 's for mer address. This letter
was returned with the notation "Attempted Not Known."
Given the circumstances described in this r ecord, minimal,
reasonable effort would have enabled the government to
locate plaintiff and send a letter to a curr ent residence. In
the absence of sufficient notice, we conclude that it was
error to enter summary judgment for the gover nment, and
we will reverse.

On February 22, 1993, the pickup truck driven by
plaintiff Don Ameche Foehl, Sr. was pulled over for
speeding by Beaumont Township police in Jef ferson
County, Texas. The officers searched the truck and
discovered $93,163 in cash in the spare tire. A small
quantity of marijuana was found in an additional tir e laying
in the bed of the truck. Although Foehl allegedly denied
ownership of the currency at the scene, he r efused to sign
a document to that effect.

Foehl produced a vehicle registration car d verifying that
the pickup truck was owned by his wife, Bonnie Foehl, of
8817 Lott Road, Eight Mile, Alabama. The parties dispute,
however, whether Foehl provided police with a current

                                  2
address for himself at the time of the arr est. He admits
producing an Alabama driver's license showing a prior
address of 103 So. Thompson Court, Chickasaw, Alabama.
Foehl alleges, however, that he told the officers that his
residence had changed to 8817 Lott Road,1 Eight Mile,
Alabama, and that he had not yet obtained a license
reflecting the change of address. He also contends that he
again gave the police the Lott Road address while being
fingerprinted at the Beaumont Township Police Station.

The arresting officer's report, in contrast, lists only the
Thompson Court residence. In his declarationfiled in the
District Court, the officer said that Foehl never provided an
address other than the one at Thompson Court, but he
admitted that documents found in the vehicle indicated
that Don Ameche Foehl, Jr. and Bonnie Foehl r esided at
Lott Road.

Plaintiff posted $100 cash bail and the Beaumont police
released him on the day of his arrest. He asserts that at the
time of his release the police gave him the following: a copy
of the arrest report, a notice to appear in court, receipt for
the bail money, a receipt for the truck's impoundment, and
a receipt for the approximately $93,000 in currency. All of
these documents, he alleges, referred to the Lott Road
address.

On March 12, 1993, the District Clerk for Jef ferson
County, Texas, issued Notices of Forfeiture for the pickup
truck to Foehl and his wife at 8817 Lott Road. Sent by
certified mail, the notices were deliver ed to that address on
March 15th. The return-receipt cards were signed by a
"Carol Barnhill" and retur ned. The record contains no
information about the identity of this person or what her
relationship to the plaintiff might have been.

Bonnie Foehl's attorney filed a claim for the truck on her
behalf on April 5, 1993. Because Foehl had not joined in
his wife's claim, he was served notice in person at the
_________________________________________________________________

1. At various points in the record, the address is listed as 8817 or 8825
Lott Road. A DEA agent explained that number 8817 appears to be
plaintiff 's auto repair garage, while his home is located on the
adjoining
plot, number 8825. We will treat the Lott Road addresses as one.

                                3
Jefferson County courthouse on June 23, 1993, when he
appeared in connection with the chargesfiled by the
Beaumont police. The proceeding involving the truck was
settled some weeks later.

Meanwhile, on March 5th, 1993, the Beaumont police
had contacted the DEA, which ultimately "adopted" the
seized cash2 and accepted the case for administrative
forfeiture. A letter from the DEA advising plaintiff of the
proposed forfeiture was sent by certified mail on March 29,
1993 to the Thompson Court address. The letter was
returned with the notation "RETURNED TO SENDER --
ATTEMPTED NOT KNOWN." It is not clear on what date the
letter was returned. On April 7, April 14, and April 21,
1993, the DEA published Notice of Seizure in the USA
Today newspaper.

On April 19, 1993, DEA headquarters, whose location is
not revealed in the record, asked its Houston division for
alternative addresses for plaintif f. That office responded
that "[c]ase files and case agent have no other addresses
available." So far as the record r eveals, the DEA made no
other efforts to determine the plaintif f 's whereabouts, nor
did it further attempt to notify him of the pr oceedings. The
currency was forfeited on June 18, 1993.

Months before his arrest in Texas, plaintiff had been the
subject of a separate and unrelated DEA investigation. Law
enforcement officers had spent several weeks observing
events at the Lott Road location. Convinced that plaintiff
was involved in drug trafficking, the DEA obtained an
indictment in the United States District Court for the
Southern District of Alabama on May 20, 1993, charging
him with violating narcotics laws. He was arr ested six days
_________________________________________________________________

2. Seizures performed by state or local law enforcement officials are
"adopted" by the DEA when it takes custody of the seized property and
treats it as if the agency had made the initial seizure. The DEA then
institutes forfeiture proceedings in accordance with federal law. The
Attorney General is authorized to shar e the forfeited property with local
law enforcement organizations, assuring that the proportion given "bears
a reasonable relationship to the degr ee of direct participation of the
State
or local agency in the law enforcement effort resulting in the forfeiture
. . . ." 21 U.S.C. S 881(e)(3)(A).

                               4
later and released on his own recognizance, with "Lott
Road" listed as his address. After entering a plea bargain,
he began a 60-month sentence on February 8, 1994.

In a declaration filed in the case before us, Foehl asserted
that he and his wife tried continuously to r eclaim the
money but were thwarted in every attempt. He sent several
letters to the Beaumont police, but the only r esponse he
received allegedly stated that he could not pursue his claim
until he had completed his federal sentence.

Foehl contends that it was not until 1998, thr ough the
efforts of his current counsel, that he learned that the DEA
had forfeited the currency shortly after receiving it from the
Beaumont police. Listing his address as Union County, New
Jersey, he filed a complaint in the United States District
Court for the District of New Jersey in June 1998, seeking
to overturn the forfeiture.

The District Court granted summary judgment in favor of
the government, relying on several gr ounds. It concluded
that Foehl had given the Beaumont police the Thompson
Court address, and that he had presented no evidence that
the DEA was, or should have been, aware that the
information was incorrect. Foehl had not been in custody
when the letter was sent; therefore, the Court reasoned that
notice by certified mail to the Thompson Court location was
constitutionally sufficient.

The District Court also held that the claim was barr ed by
the doctrine of laches because the five-year delay in
bringing the claim was both unreasonable and pr ejudicial
to the government. In addition, the Court pointed out that
Foehl's complaint cited the Federal Tort Claims Act, 28
U.S.C. S 1346(b), as a basis for jurisdiction, but that the
two-year statute of limitations had expired on that cause of
action.

The parties agree that the Tort Claims Act does not apply
here. Foehl contends that the one refer ence to the Act in
his complaint was inadvertent, and that his claim is
predicated on the Administrative Procedur e Act, 5 U.S.C.
S 701 et seq., which was cited at the beginning of his
complaint and to which Counts One through Five referred.
Foehl argues that the District Court should have granted

                                5
him leave to clarify his complaint to reflect a claim under
the Administrative Procedure Act, or , alternatively, assumed
jurisdiction pursuant to 28 U.S.C. S 1331, as the district
judge conceded he could have done.

I.

This Court exercises de novo review over a district court's
grant of summary judgment. See Goosby v. Johnson &
Johnson Med., Inc., 

, 318 (3d Cir. 2000).
Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c); see also Goosby , 228 F.3d at 318. We
view the facts in the light most favorable to the party
against whom summary judgment was entered. Medical
Protective Co. v. Watkins, 198 F .3d 100, 103 (3d Cir. 1999).

We address first the District Court's holding that the
claim was barred by the Federal Tort Claims Act's statute
of limitations. We would agree with that conclusion if that
Act were the basis for Foehl's suit. Wefind, however, that
this case was brought pursuant to the Administrative
Procedure Act.3

It is understandable that the District Court assumed that
the Tort Claims Act was the basis for the plaintiff 's case,
given that plaintiff cited that statute specifically. On the
other hand, in the heading of the complaint and in all five
counts, plaintiff cited the Administrative Pr ocedure Act. The
civil action cover sheet also referred to the APA "to
challenge and seek recovery of approximately $94,000 in
currency confiscated from the plaintif f."
_________________________________________________________________

3. The Administrative Procedure Act makes reviewable any "final agency
action for which there is no other adequate r emedy in a court," 5 U.S.C.
S 704, so long as the statute under which the agency acted does not
preclude judicial review or the agency action is not "committed to agency
discretion by law." 

                               6
II.

Although summary judgment was properly enter ed
against any claim under the Federal Tort Claims Act, the
Court had the authority to consider the complaint under a
number of alternative theories. In United States v. McGlory,

, 670 (3d Cir. 2000) (en banc), we held that a
district court had equitable jurisdiction "to consider a claim
that a person received inadequate notice of completed
administrative forfeiture proceedings."4 At least one court
has found that the Administrative Procedur e Act itself
creates a right of review of federal agency actions
presenting issues of adequate notice. Ar mendariz-Mata v.
DEA, 

, 682 (5th Cir. 1996).

Indeed, "the federal courts have universally upheld
jurisdiction to review whether an administrative forfeiture
satisfied statutory and due process r equirements." United
States v. Woodall, 

, 793 (8th Cir. 1993) (finding
jurisdiction in equitable principles); United States v. Minor,

, 357 (4th Cir. 2000) (finding jurisdiction to
consider the plaintiff 's "constitutionally-derived equitable
challenge to the administrative forfeitur e of the currency
under the provisions for general federal question
jurisdiction"); United States v. Dusenbery , 

,
766 n.7 (6th Cir. 2000) (same); United States v. Clagett, 

, 1356 (9th Cir. 1993) (same); Sarit v. Drug
Enforcement Admin., 

, 16-17 (1st Cir. 1993)
(same). In other words, a claimant can "collaterally attack
an inadequately noticed administrative forfeiture by suing
for equitable relief, i.e., the r eturn of the seized property
under 28 U.S.C. S 1331, via the waiver of sovereign
immunity found in section 702 of the Administrative
Procedure Act." David B. Smith, 1 Prosecution and Defense
of Forfeiture Cases, S 6.02, at 6-29 (2000).
_________________________________________________________________

4. This is so even if the claim is styled as a Federal Rule of Criminal
Procedure 41(e) motion for the recovery of property and is brought after
criminal proceedings are completed; courts are to treat such claims as
civil suits seeking to set aside forfeitures. McGlory, 202 F.3d at 670;see
United States v. Garcia, 

, 20 (4th Cir. 1995) (same); Thompson
v. Covington, 

, 975 (8th Cir . 1995) (same); United States v.
Giovanelli, 

, 118 (2d Cir . 1993) (same).

                               7
In light of this substantial authority, we conclude that
the District Court was correct in considering the
constitutional issue of adequate notification under theories
other than the Tort Claims Act.

III.

At the time of plaintiff 's arrest, the procedure for
initiating an administrative forfeitur e in a drug case was
governed by 21 U.S.C. S 881 and 19 U.S.C. SS 1607-08. The
government was required to send a letter notifying the
property owner of the impending forfeitur e and to publish
notice of the seizure for three successive weeks in a
newspaper of national circulation. 19 U.S.C.S 1607(a).

In giving effect to these statutory requirements, due
process requires that notice to the property owner be
"reasonably calculated, under all the cir cumstances, to
apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections."
Mullane v. Central Hanover Bank & Trust Co. , 

, 314 (1950). In Mennonite Board of Missions v. Adams,

, 800 (1983), the Court reiterated Mullane's
due process standard, stating that "[n]otice by mail or other
means as certain to insure actual notice is a minimum
constitutional precondition to a proceeding which will
adversely affect the liberty or property interests of [a] party
. . . if its name and address are r easonably ascertainable."
More specifically, the Court has cautioned that "[f]orfeitures
are not favored; they should be enfor ced only when within
both letter and spirit of the law." United States v. One 1936
Model Ford V-8 De Luxe Coach, 

, 226 (1939).

We have held that a notice of forfeitur e mailed to an
owner's home when the government knew that the
defendant was in jail did not satisfy constitutional due
process requirements. United States v. $184,505.01 in U.S.
Currency, 

, 1163-64 (3d Cir. 1995); see also
Robinson v. Hanrahan, 

, 40 (1972) (notice of
state forfeiture proceedings was inadequate when mailed to
claimant's home while claimant was imprisoned); Lopez v.
United States, 

, 482 (D.C. Cir. 2000) (same
conclusion, even though claimant's wife received notice);

                                8
Torres v. $36,256.80 U.S. Currency, 

, 1161 (2d
Cir. 1994) (notice inadequate "wher e the . . . notice . . . is
returned undelivered, the intended r ecipient is known by
the notifying agency to be in government custody, and the
agency fails to take steps to locate him").

Although this Court has never required"actual notice,"
we have held that mailing notice to the United States
Marshals Service, in whose custody the claimant was held
at the time of the mailing, was constitutionally inadequate.

.5 In United States v. One
Toshiba Color Television, 213 F .3d 147, 155 (3d Cir. 2000)
(en banc), we held that the government had the burden of
establishing that the procedures at the prison to which a
forfeiture notice was sent were r easonably calculated to
insure delivery of the notice to the intended r ecipient. See
also 

(adopting One Toshiba
standard); Small v. United States, 

, 1337-38
(D.C. Cir. 1998) (when government has information that a
reasonable person would use to locate the claimant, it is
obliged to resend notice if doing so would not be
burdensome); Woodall, 12 F .3d at 794-95 (placing a greater
burden on government in notifying an incarcerated
claimant or one whom the government is pr osecuting).
These cases illustrate that, particularly wher e the claimant
is in a place chosen by the government, due pr ocess may
require that the government make multiple attempts at
notification if the claimant's name and addr ess are
reasonably ascertainable. Accord United States v. Rodgers,

, 1251 (10th Cir. 1997) (charging the DEA
with information about the plaintiff 's address provided by
local authorities' seizure records).

In this case, the District Court relied on Madewell v.
Downs, 

(8th Cir. 1995). There, notice was
sent to the claimant's last known address, the one he
admitted giving to the authorities upon his arr est. The
letter was returned marked "Moved. Left no address." 

Although the claimant alleged that the DEA knew his
_________________________________________________________________

5. Other courts have taken a more relaxed view on the adequacy of
notice. See Whiting v. United States, No. 99-1141, 

, at
*6 n.6 (1st Cir. Nov. 13, 2000) (citing cases).

                               9
correct address, the Court refused to credit that assertion
in the absence of evidence that the DEA had any contact
with the claimant that would have alerted it to his change
of address. 

concluded that the lack of notice
was the result of the claimant's own conduct and,
accordingly, granted summary judgment to the government.

We question Madewell's holding on notice, particularly in
the context of a motion for summary judgment, and note
that it appears inconsistent with United States v. Cupples,

(8th Cir. 1997),6 decided later by the same
Court. In any event, we find Madewell distinguishable.

Here, the District Court stated that the gover nment
directed its "notification to the addr ess that Plaintiff
provided to police when he was arrested." Citing Madewell,
the Court observed that when a person moves, it is his
obligation to advise the Post Office of his change of address;
and therefore, lack of notice resulting from his failure to do
so could not be attributed to the government. Unlike
Madewell, however, the parties to this case sharply contest
the address Foehl gave to the Beaumont police at the time
of his arrest. Madewell, therefor e, is not helpful in resolving
the case before us at the summary judgment stage.

When the notice sent to Thompson Court was r eturned to
the DEA, the agency did nothing more than make a cursory
check with its division office in Houston, T exas, which,
according to the record, had no prior involvement with
Foehl's case. Because his driver's license was issued in
Alabama, one would have expected the DEA to check with
its New Orleans Division, which includes the offices in
Alabama.

The report prepared by the police on the date of the
arrest in Texas shows that the Mobile, Alabama Sheriff 's
Office had informed the Beaumont authorities that Foehl
was a known marijuana trafficker and was about to be
indicted by federal authorities.7 Had the DEA contacted its
_________________________________________________________________

6. In Cupples, the Court observed that in the circumstances there,
whether the claimant received actual notice was a question of fact to be
determined by the trial 

.
7. Chickasaw and Eight Mile are located about eight miles apart on the
northern outskirts of Mobile, Alabama.

                               10
Alabama branch, it almost certainly would have lear ned of
Foehl's impending arrest and of the Lott Road address.

It is a fair inference that the DEA, having adopted the
currency from the Beaumont police, was aware that the
Texas authorities were undertaking for feiture proceedings
on the truck. In those circumstances, it is difficult to
understand why the DEA did not confirm Foehl's address
with the Beaumont police or the Jefferson County district
attorney. A simple phone call to either would have revealed
that notice of the truck's forfeiture had been mailed to
Foehl and his wife at Lott Road.

Moreover, although Foehl was not in jail at the time the
notice was returned, he had been released on bail.8 We can
safely assume that the Beaumont police had a very good
idea of his whereabouts during that time. Accord 

(holding that where defendant is released to
an address known to the government, due process requires
the government to notify defendant at that address).

Finally, the record establishes that a duplicate license
was issued to Foehl on March 3, 1993, listing Lott Road as
his address. A call to the Alabama License Bur eau in March
or April of 1993 would have revealed his then-current
address.

The record in this case, viewed in the light most favorable
to Foehl as the nonmoving party, reveals that he lived at
the Lott Road address at the time of the notice and
forfeiture. After learning that Foehl did not receive the letter
mailed to the Thompson Court address, the DEA, with the
most minimal effort, could have obtained his correct
address and notified him of the impending for feiture.

We do not impose on a forfeiting agency the burden of
checking all possible sources for a claimant's address. The
_________________________________________________________________

8. The record does not reveal when the notice was returned to the DEA.
In 

, the Court resolved this issue in the
claimant's favor, stating "the United States failed to record the date on
which it received the letter [notifying claimant of forfeiture] back;
information on that issue is within the gover nment's exclusive control,
and so the government . . . must bear the bur den of this gap in the
record."

                                11
DEA was, however, obligated under Mullane to provide
notice reasonably calculated under all the cir cumstances to
apprise him of the proceedings. The DEA had four obvious
sources: the Beaumont Township Police Department, the
Jefferson County district attorney, the DEA office for
Alabama, and the Alabama Driver's License Bur eau. The
DEA's failure to check with any of these sour ces was
unreasonable under the circumstances, and its minimal
effort to notify plaintiff of the for feiture cannot fairly be
considered to be "within both letter and spirit of the law."
One 1936 Model 

.

Nor do we require or even imply that notice by writing or
other means be certain to insure actual notice as a
minimum constitutional precondition. Our focus here is
rather on the glaring lack of effort by the DEA to ascertain
Foehl's correct address. The constitutional mandate of
adequate notice cannot be treated as empty ritual.

Because of disputed material facts and errors in the
application of relevant legal authorities, the record in this
case does not support the grant of summary judgment in
favor of the government, and we are, ther efore, compelled
to reverse that ruling.

IV.

We need not reach the laches issue because the defense
is not available where a judgment is void. In One Toshiba,
we held that a judgment of forfeiture obtained without
proper notice to a claimant is void, and that the passage of
time could not transmute this nullity into a binding
judgment. One 

. At least three
Courts of Appeals have decided similarly. See Cly`more v.
United States, 

, 378 (5th Cir . 2000), aff 'd on
panel reh'g, No. 99-50860, 

, at *1 (5th
Cir. Aug. 24, 2000); Kadonsky v. United States, 

, 508 (5th Cir. 2000); United States v. Marolf, 

, 1216-18 (9th Cir. 1999); Clymor e v. United States,

, 572-74 (10th Cir. 1999). But see 

(treating inadequate notice as voidable);
Boero v. Drug Enforcement Admin., 

, 307 (2d
Cir. 1997) (same). Because the recor d at this stage does not

                               12
support a finding of proper notification, laches is not a
proper defense.

V.

One other matter requires resolution on remand. The
government denies that Foehl was a resident of New Jersey
at the time he filed his complaint, contending that he
currently lives in Alabama. Indeed, the gover nment asserts
that Foehl was an inmate in a federal prison in Arkansas
when he began this suit and, accordingly, was not entitled
to lay venue in New Jersey.

The District Court noted that the government's objection
attacking venue may have been untimely and ther efore
waived. In view of its disposition of the case, however, the
Court found it unnecessary to decide the issue. W e are
inclined to agree that the challenge to venue may have been
waived. Nevertheless, the District Court may wish to
transfer the case to a more appropriate district in
accordance with the flexibility provided by 28 U.S.C.
SS 1404 and 1406.

Because this suit was brought under the Administrative
Procedure Act rather than as a motion under Federal Rule
of Criminal Procedure 41(e), we need not be concerned by
the venue restrictions in that rule.9 Here, there were no
federal criminal proceedings to which the for feiture was
related, nor are any in progr ess. Moreover, currency is
fungible and, unlike a res, which has some tangible
_________________________________________________________________

9. We note that in cases brought under Federal Rule of Criminal
Procedure 41(e), the question of the pr oper venue has caused a circuit
split. Even though the courts treat the pr oceedings as civil suits, the
Courts of Appeals for the Fourth and Tenth Cir cuits have decided that
when the criminal proceeding has been concluded, any suit to set aside
the forfeiture must be filed in the district in which the property was
seized. See 

; 

. The
Second and Eighth Circuits, on the contrary, have held that the district
court in which the criminal proceeding had taken place was the proper
venue. See 

; 

. This
circuit split would be resolved by the pr oposed change in Federal Rule
of Criminal Procedure 41(g) designating the district in which seizure
occurred as the location where a motion must be filed.

                               13
connection with a definite location, presents no compelling
venue problems. We therefor e consider this suit as
governed by the broader venue provisions of 28 U.S.C.
S 1391 and 28 U.S.C. S 1406.

It appears that resolution of the facts af fecting the issues
in this case will require further pr oceedings. Even if Foehl
did reside in New Jersey at the relevant time, the
convenience of the parties and witnesses would ar guably be
better served if the proceedings were conducted in the
Eastern District of Texas or the Souther n District of
Alabama. New Jersey does not appear to be a convenient
location for any of the parties involved, and the District
Court may wish to transfer this case to a mor e appropriate
venue for disposition.

Accordingly, the judgment of the District Court will be
reversed and the case remanded for further proceedings
consistent with this opinion.

                               14
SLOVITER, Circuit Judge, Dissenting.

I cannot join the majority's opinion. I believe it fails to
recognize the express limitation in this court's prior cases
that consider what is required to give notice of forfeiture. In
the name of due process, the majority expands that
requirement beyond the applicable pr ecedent and extends
the government's duty beyond reasonable limits without
providing a workable benchmark.

A.

The Supreme Court enunciated the overar ching principle
of due process notice in Mullane v. Central Hanover Bank &
Trust Co., 

, 314 (1950), stating that "[a]n
elementary and fundamental requirement of due process
. . . 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." That principle was applied in
Robinson v. Hanrahan, 

(1972), wher e the
Supreme Court held that notice mailed to a prisoner's home
address by the state in whose custody the prisoner was
held failed to meet the standard set in Mullane. Thereafter,
this court was presented with three cases relating to the
adequacy of notice of different for feitures to the same
prisoner, Reginald McGlory: United States v. $184,505.01 in
U.S. Currency, 

(3d Cir. 1995) (notice deficient
when sent to last home address of claimant the government
knew to be incarcerated); United States v. McGlory, 

(3d Cir. 2000) (en banc) (notice inadequate when
sent to United States Marshal's Service located in
courthouse where claimant was convicted rather than to
prison where he was incarcerated); and United States v.
One Toshiba Color Television, 213 F .3d 147 (3d Cir. 2000)
(en banc) (notice inadequate when sent to prisoner's pre-
incarceration address and his ex-wife's home).

In all three McGlory cases, the dispositive fact with
regard to the due process requir ement was that the person
seeking to challenge the forfeiture was in prison at the time
of the notice. As we stated in One Toshiba , "the
circumstances of prisoners differ gr eatly from free citizens,

                               15
a fact that potentially alters the evaluation of what steps
are reasonably calculated to provide notice. When an
individual is incarcerated at a location of the government's
choosing, the government's ability to find and directly serve
him or her with papers is at or near its zenith. Not only
does the government know where to find the person, it can
be equally sure that he or she will be ther e when the
papers are delivered. Indeed, it can even move the person
to a more convenient location if it so 

.

B.

The majority relies on these and other cases where the
issue was the nature of the government's duty to give
notice of forfeiture to a prisoner whose whereabouts the
government must be presumed to know, unlike this case
where the appellant was at large. The case at hand more
closely resembles Madewell v. Downs, 

, 1046
(8th Cir. 1995), than any case in the McGlory trilogy. In
Madewell, the DEA mailed a notice by certified mail to the
address the property owner gave when arr ested and took no
further action directly to notify him, even after the letter
was returned marked "Moved. Left no address." Before the
notice was sent, Madewell had given his new addr ess to the
prosecutor in the related state pr oceeding, but the DEA
never called the prosecutor. The Eighth Circuit held that
the DEA's notification efforts were constitutionally
sufficient, noting that Madewell like Foehl was not in
federal custody, not being prosecuted for a federal offense,
and not on release to a new address by a federal court
during the notice period. The court found the DEA had no
obligation to inquire as to Madewell's addr ess because it
had no notice the address had changed. See 

.

I do not disagree with the propositions the majority
derives from the cases it cites, namely that: (1) the
government does not satisfy due process when it sends a
notice to an interested party's home addr ess knowing the
party is in prison; and (2) the government has a heightened
burden to ensure notice to an incar cerated interested party,
particularly when it incarcerated the party. However, these

                               16
propositions are neither inconsistent with Madewell nor
compel a finding that the notice in this case was
inadequate. The majority fails to address the following
obvious distinctions between the cases establishing these
principles and this case: (1) the DEA did not know Foehl
did not reside at the Thompson Court addr ess when it
mailed the notice there; (2) Foehl was not incarcerated at
the time the government sought to give notice of the
forfeiture, nor was he subject to any version of federal
custody during the notice period; and (3) Foehl violated
Alabama law by failing to update the address on his driver's
license.

1. The DEA Did Not Know the Thompson Court Address
       Was Incorrect

Judging the DEA's initial notification effort at the time it
was made, it was reasonably calculated to notify Foehl of
the impending forfeiture. This good faith effort is completely
distinguishable from the notification ef forts this court
found deficient in the McGlory trilogy. In the McGlory
cases, the government had reason to know when it sent the
notices that McGlory did not reside at the addr esses to
which it sent them.

It is clear that when the government mails a notice to an
address where it knows an interested party does not reside
(for example, because it has incarcerated the party) it has
not made reasonable efforts to notify the party. See
$184,505.01 in U.S. Currency, 72 F .3d at 1163-64 (citing
Robinson, 

, and other cases). However , I am not
persuaded by the majority's apparent equation of such a
situation to one in which the government mails a notice to
an address where it believes a claimant r esides, only to
discover that the address is invalid when the notice is
returned undelivered. In the first situation, the notice was
constitutionally inadequate when sent. In the second, the
notice, when sent, was reasonably calculated to reach the
claimant. Cf. 

("Whether notice
was adequate is measured at the time the notice was sent.")
(quoting United States v. Woodall,

, 794 (8th Cir.
1993)).

2. Foehl Was Not Incarcerated

Because Foehl was not incarcerated during the notice
period, he did not "lack[ ] the ability to take steps to ensure

                                17
that his mail [was] actually delivered to him," One 

, one of the important bases on which we
predicated that decision. As we explained,"[i]n the outside
world, an individual who changes addresses can arrange to
have mail forwarded and can notify inter ested parties as to
the change of address." 

particularly applicable to
Foehl, who was well aware that the officers had found and
seized $93,163 in cash along with marijuana hidden in
spare tires in his wife's truck while he was driving it.

Moreover, the fact that Foehl was r eleased by the
Beaumont police on bail, mentioned by the majority, did
not impact in any way his ability to take steps to ensure
the delivery of his mail. Nor did this non-federal"custody"
give the federal government any special information
concerning Foehl's whereabouts. Ther efore, the DEA was
not subject to the heightened notice requir ements
applicable when the claimant is in (federal) custody.

3. Foehl Did Not Comply with Alabama's Addr ess-Change
       Requirements

Alabama law obliged Foehl to correct his addr ess on his
driver's license within thirty days of moving, which
requirement is written on the back of Alabama driver's
licenses. See Walton Decl., P 8, Supp. App. at 67; Exhibits
F, G, Supp. App. at 79-80 (copies of the Alabama
Department of Public Safety rules and regulations and the
driver's license in effect in 1989). The Post Office, when
asked, will forward an individual's mail fr om the old to the
new address for longer than one month. See, e.g., United
States Postal Service Web Page, http://www.usps.com/
moversnet/q_and_a.html (January 8, 2001). Foehl claims to
have moved from Thompson Court to Lott Road one year
before his arrest. During that period, he did not notify the
Alabama authorities of his change of address in compliance
with the law. Therefore, any confusion as to his proper
address caused by his driver's license is of Foehl's own
creation.

C.

The majority writes that "[a]fter lear ning that [Foehl] did
not receive the letter mailed to the Thompson Court

                               18
address, the DEA, with the most minimal ef fort, could have
obtained [his] correct address and notified him of the
impending forfeiture." The majority pr offers "four obvious
sources: the Beaumont Township Police Department, the
Jefferson County district attorney, the DEA office for
Alabama, and the Alabama Driver's License Bur eau." It
concludes the "failure to check with any of these sources
was unreasonable under the circumstances."

Because this is not a case in which Foehl was in custody
during the forfeiture notice period, ther e is no reason to
place on the forfeiting agency the bur den of checking with
all possible sources of Foehl's then curr ent address. The
DEA's original notice, sent to Foehl's stated addr ess,
satisfied due process. Nonetheless, I will consider briefly
whether the DEA had any reason to look to the sources
suggested by the majority.

1. The Beaumont Township Police and the Alabama
       Driver's License Bureau

When Foehl was arrested and the money and drugs
seized by the Beaumont police in Jefferson County, Texas,
his driver's license listed his Thompson Court addr ess. This
was the address the Beaumont police provided to the DEA
and thus the address that the DEA used to send its notice
of forfeiture. Even if, as the majority states, Foehl "sharply
contest[s]" which address he gave to the Beaumont police at
the time of his arrest, there is no dispute that the
Beaumont authorities sent the Thompson Court addr ess to
the DEA.

Because the Beaumont police had provided thefirst
invalid address taken from Foehl's driver's license, the DEA
had no particular reason to believe that either the
Beaumont police or the Alabama Driver's License Bur eau
had a better one. The agency could reasonably assume
that: (1) Foehl maintained an up-to-date addr ess on his
driver's license pursuant to Alabama law; (2) Foehl would
otherwise have made a point to notify the police of his
actual address; and (3) the Beaumont police would have
included a second address had Foehl provided one. The fact
that we now know in hindsight that one or mor e of these
assumptions would have been incorrect does not make
them unreasonable.

                               19
2. The Jefferson County District Attor ney

Because the Jefferson County district attor ney, like the
DEA, presumably received his infor mation on Foehl from
the Beaumont police, it is unclear why the DEA would have
expected the district attorney to have a mor e accurate
address for Foehl than did the Beaumont police. Moreover,
it is unclear what the district attorney, if contacted, would
have told the DEA. The district attorney did have Foehl's
Lott Road address as early as March 12, 1993, when he
sent a Complaint of forfeiture of the truck to Lott Road.
However, the receipt of service of the Complaint was not
signed by Foehl or by his wife, but by "Car ol Barnhill,"
apparently no relation. Therefor e, by the time the DEA's
March 29 notice of forfeiture was r eturned, the Jefferson
County district attorney already knew Lott Road to be, at
best, an uncertain address for Foehl.

3. The DEA Office for Alabama

The majority questions the DEA's judgment in dir ecting
its inquiry regarding Foehl to DEA-Houston rather than to
the DEA division covering Alabama, given that Foehl was
from Alabama and that DEA-Houston "had no prior
involvement with [Foehl's] case." However , there was no
reason for the DEA forfeiture division to contact the
Alabama division, which was not involved with the
forfeiture at issue. In fact, DEA-Houston was the
originating division for the forfeitur e, according to both
parties' briefs. Foehl himself appears to concede that DEA-
Houston was the appropriate division.1 Therefore, the DEA's
inquiry to its Houston division after its first notice to Foehl
was returned constituted precisely the type of reasonable
inquiry the majority suggests the DEA should have made.2
_________________________________________________________________

1. Foehl argues that the DEA's inquiry was ineffective, not because
Houston was the wrong division but because the DEA misidentified him
by inquiring about "Don Foehl" or "Don Ameche Foehl," rather than "Don
Ameche Foehl, Sr."

2. One additional point the majority does not address is whether the
DEA would have met with success had it made one of the suggested
inquiries, obtained Foehl's Lott Road address, and sent a notice there. In
fact, there is no evidence that Foehl r eceived the forfeiture notice for
his
wife's truck, which the Jefferson County District Attorney sent to the
Lott Road address.

                                20
This hardly constitutes a "glaring lack of effort," as the
majority chooses to characterize it.

D.

In conclusion, the relevant precedent r equires the
government to take reasonable measur es to notify an
interested party of impending forfeitur e proceedings. The
DEA's initial notice alone, and certainly when combined
with its follow-up inquiry to its Houston division, satisfies
this requirement. No case obliges the government to go to
extraordinary lengths in its notification ef forts, yet that is
precisely what the majority holds is required. This conflicts
with our repeated statements that the gover nment duly is
to provide notice to an individual "whose name and address
are known or reasonably ascertainable." 

(quotation omitted). The majority has thus raised the
level of due process beyond that ever suggested by the
Supreme Court or this court, and has not pr ovided any
standard that the forfeiting agency should follow in the next
case. It is not enough for a court to say mer ely, "do better,"
yet that is what the majority has done.

Therefore, I respectfully dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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