United States v. One Toshiba Color Television

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

5-24-2000

United States v. One Toshiba Color Television

Precedential or Non-Precedential:

Docket 98-3578 & 983579

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation

"United States v. One Toshiba Color Television" (2000). 2000 Decisions. Paper 109.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/109

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed May 24, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 98-3578 and 98-3579

UNITED STATES OF AMERICA

v.

ONE TOSHIBA COLOR TELEVISION; TWO ANSWERING

MACHINES; ONE HEALTH TECH COMPUTER

*Reginald McGlory, Appellant in No. 98-3578

*(Pursuant to Rule 12(a), F.R.A.P.)

(D.C. Civ. No. 90-cv-00138)

UNITED STATES OF AMERICA

v.

ASSORTED JEWELRY

*Reginald McGlory, Appellant in No. 98-3579

*(Pursuant to Rule 12(a), F.R.A.P.)

(D.C. Civ. No. 90-cv-00370)

On Appeal From the United States District Court

For the Western District of Pennsylvania

District Judge: Honorable D. Brooks Smith

Submitted Under Third Circuit LAR 34.1(a)

July 13, 1999

Before: BECKER, Chief Judge, ROTH and RENDELL,

Circuit Judges.

ARGUED EN BANC: November 8, 1999

Before: BECKER, Chief Judge, SLOVITER, MANSMANN

GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,

McKEE, RENDELL and BARRY, Circuit Judges.

(Filed May 24, 2000)

MICHAEL A. YOUNG, ESQUIRE

(ARGUED)

165 Christopher Street

New York, NY 10014

Counsel for Appellant

HARRY LITMAN, ESQUIRE

(ARGUED)

United States Attorney

BONNIE R. SCHLUETER

MARY McKEEN HOUGHTON,

ESQUIRE

Assistant United States Attorney

633 United States Post Office and

Courthouse

Pittsburgh, PA 15219

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

In these consolidated appeals Reginald McGlory

challenges the results of two forfeiture proceedings. The

first appeal requires that we revisit the question of the

notice that the United States must provide when it pursues

forfeiture proceedings against the property of an

incarcerated defendant in its custody. The second concerns

the District Court's use of the doctrine of laches to prevent

McGlory from challenging a forfeiture proceeding in which

the notice given for the forfeiture is later discovered to be

constitutionally inadequate.

2

In the first appeal, which concerns forfeiture of certain

items of jewelry, the government directed notice by certified

mail to the facility in which McGlory was incarcerated.

McGlory maintains that he did not receive the notice, and

that the government should have ensured that he received

personal notification of the proceedings against his

property. In United States v. McGlory, 202 F.3d 664 (3d Cir.

2000) (en banc), which involved different property of

McGlory's that was subject to administrative forfeiture, this

Court ruled that merely sending notice to the Marshals

Service, in whose custody McGlory was held, did not satisfy

the Constitution. We held that "at a minimum, due process

requires that when a person is in the government's custody

and detained at a place of its choosing, notice of a pending

administrative forfeiture proceeding must be mailed to the

detainee at his or her place of confinement." Id. at 674. We

noted, however, that "[w]hether anything more is required

is not presently before us." Id. This appeal squarely

presents the question whether "more" is required. McGlory

asks that we rule the judicial forfeitures at issue in this

case invalid because he did not receive actual notice of the

proceedings.

As in all cases in which proper notice under the Due

Process Clause is at issue, the touchstone of analysis is

whether the notice was "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. Central Hanover Bank

& Trust, Co., 339 U.S. 306, 314 (1950). The government

urges that mailing a letter by first-class mail to the location

of the interested party is always sufficient. McGlory, in

contrast, argues that a higher standard should prevail

when the party is held in custody by the same government

that wishes to serve notice upon him. He maintains that

the government was in the position to ensure actual notice

of the proceedings. Such notice has been required by

several of our sister circuits, most notably by the Second

Circuit in Weng v. United States, 137 F.3d 709 (2d Cir.

1998).

Though there is much to recommend the actual notice

standard when the United States Attorney is dealing with

3

federal prisoners and detainees, we are not prepared to

require the government to bear the evidentiary burden of

establishing actual notice in all cases. Such a

780<!>demonstration could impose needless litigation costs,

especially if the due process challenge arises years after the

conclusion of the initial proceedings. Moreover, the

Supreme Court has never required the demonstration of

actual notice. At all events, the jurisprudence of

constitutional notice appropriately focuses not on what

actually occurred, but rather on the procedures that were

in place when notice was attempted. Evaluating the

adequacy of these procedures requires consideration of the

context in which they occur.

We conclude that the circumstances surrounding the

federal government's incarceration of a prisoner require

greater efforts at ensuring notice than would be expected

for individuals at liberty in society. When one is in prison,

the relative difficulty to the government to effect actual

notice is reduced, while the ability of prisoners to ensure

that they receive notices directed to them suffers. However,

we stop short of the Weng standard and adopt an approach

that focuses on the extent that procedures are reasonably

likely to effect actual notice. Under this regime, the

government's obligations do not end at the mailbox. Rather,

we hold that if the government wishes to rely on direct

mail, it bears the burden of demonstrating that procedures

at the receiving facility were reasonably calculated to deliver

the notice to the intended recipient. On this record, we

cannot determine whether such a system was in place in

McGlory's facility. We will therefore vacate the judgment

and remand to the District Court for further factual

findings on the sufficiency of the notice.

In the second forfeiture now before us, which concerns

certain electronic equipment, the notice provided to

McGlory concededly fell short of the constitutional

minimum. The government contends, however, that

McGlory's attempt to recover the forfeited property is barred

by the doctrine of laches, and the District Court agreed. We

conclude that the doctrine of laches should not be

considered when the issue is whether a judgment is void. If

McGlory unreasonably delayed in seeking the recovery of

4

his property, the proper time to raise the issue is in a

proceeding in which he seeks recovery from the

government. The District Court will have to consider

whether such recovery is available by a motion to vacate

that arises under Fed. R. Civ. Proc. 60(b) or if McGlory will

have to proceed by other means. We will therefore vacate

the District Court's judgment that McGlory's action was

barred by laches.

I.

This is the third time that forfeitures of McGlory's

property have come before this Court, and the facts

surrounding his arrest and detention are described several

times in the Federal Reporter, most recently in United

States v. McGlory, 202 F.3d 664 (3d Cir. 2000) (en banc);

see also United States v. $184,505.01, 72 F.3d 1160 (3d

Cir. 1995); United States v. McGlory, 968 F.2d 309 (3d Cir.

1992) (upholding McGlory's criminal conviction and

sentence). We therefore need not rescribe this story save for

the highlights.

On September 8, 1989, Pittsburgh police officers and

Drug Enforcement Administration agents arrested McGlory

for conspiracy to possess heroin with intent to distribute.

He was ultimately convicted of conspiracy to possess and

distribute heroin, possession of heroin with intent to

distribute, possession of a firearm by a convicted felon, use

of a firearm in a drug trafficking operation, and laundering

drug proceeds. He received a life sentence. On the date of

his arrest, the officers searched several residences used by

McGlory and seized numerous items of property, including,

at issue in this appeal, one Toshiba color television set, two

answering machines, one Health Tech computer, and

assorted jewelry. In 1990, the United States Attorney

instituted civil judicial forfeiture actions against these items

under 21 U.S.C. S 881.

Until McGlory was sentenced on February 11, 1991, he

was in the custody of the United States Marshals Service,

and was housed in various detention facilities with which it

had contracted. In initiating the forfeiture against the

jewelry, the government mailed notice of the action to

5

McGlory care of the Ohio County Jail in Wheeling, West

Virginia, where he was apparently being held at the time.

The notice was received at the jail on November 9, 1990

and signed for by one of the jail's officers. The government

also sent notice to the jail by regular mail and mailed notice

by certified mail to one of McGlory's pre-incarceration

residences. That letter was not accepted. Finally, the

government sent notice to McGlory's ex-wife, and to an

attorney by the name of William Magann,1 and it published

notice for three consecutive weeks in a general circulation

newspaper. No one filed a claim or answer as directed by

the notice to those seeking to contest the forfeiture. A

default judgment was entered in the government's favor on

January 7, 1991. The government ultimately sold the

jewelry for $9,950.

The government also initiated forfeiture proceedings

against the television set and the other equipment, mailing

the notice to an address used by McGlory. The government

also sent notice to McGlory's mother and Magann and

published notice in a newspaper. This proceeding was

resolved by default judgment in the government's favor on

May 31, 1990.

McGlory maintains that he never received any notice, and

he was unaware of any of the forfeiture proceedings until

December 1993. On April 11, 1994, he filed a pro se motion

pursuant to Fed. R. Crim. Proc. 41(e), seeking return of all

the property that had been seized from him. The District

Court dismissed the motion without prejudice on January

6, 1997, and McGlory promptly filed a motion to reconsider

the denial of his 41(e) motion. Shortly thereafter, he filed a

motion to vacate the judgments in the two earlier

proceedings. The Magistrate Judge to whom the case was

assigned concluded that no constitutional notice violation

occurred in the jewelry forfeiture proceeding, but that there

was a violation in the proceeding concerning the electronic

equipment. Notwithstanding this conclusion, he

recommended that this claim be dismissed based on the

_________________________________________________________________

1. In proceedings below, McGlory claimed not to know who Magann is,

and the government does not contend that he represented McGlory in

this matter.

6

doctrine of laches because: (a) McGlory had inexcusably

delayed seeking recovery of the property; and (b) this delay

was prejudicial to the government. Relying on the

780<!>Magistrate Judge's report, the District Court denied

McGlory's motion to vacate the judgments on September

23, 1998. McGlory filed a timely notice of appeal.

The District Court had jurisdiction over the forfeiture

proceedings under 28 U.S.C. SS 1331, 1345, and 1355, and

over the motion to vacate judgment under 28 U.S.C.

S 1331. We have jurisdiction to review the District Court's

final order under 28 U.S.C. S 1291. Our review over

constitutional issues is plenary, see United States v.

Various Computers & Computer Equip., 82 F.3d 582, 589

(3d Cir. 1996), as is our review of the legal components of

the laches issue, see Bermuda Express, N.V. v. M/V Litsa

(Ex. Laurie U), 872 F.2d 554, 557 (3d Cir. 1989).

II.

The central issue in the appeal from the jewelry forfeiture

is whether a pretrial detainee is entitled to actual notice of

judicial forfeiture proceedings initiated against him.2 The

District Court concluded that attempting service in jail via

the mail satisfied constitutional requirements for the

service of notice. It primarily relied upon two cases. First,

it looked to our opinion in United States v. $184,505.01, 72

F.3d 1160 (3d Cir. 1995), another McGlory forfeiture case,

which taught that the government must at least attempt

service on an incarcerated defendant in the place where he

is being detained. Second, it cited Herbert v. United States,

1996 WL 355333 (E.D. Pa. June 25, 1996), aff 'd without

opinion, 103 F.3d 114 (3d Cir. 1996), which declared that

notice to the prison in which the defendant was

incarcerated met due process requirements. Because it was

_________________________________________________________________

2. The relevant precedents in this area involve both judicial and

administrative forfeitures. Insofar as both judicial and administrative

forfeiture proceedings carry the potential to affect the property rights

of

the owner, there would appear to be no reason to distinguish between

the notice required by the Due Process Clause in the two situations. At

all events, the issue presented in this appeal solely concerns judicial

forfeitures.

7

not affirmed by a published opinion, Herbert is not

precedential under our Internal Operating Procedures. See,

e.g., United States v. Breyer, 41 F.3d 884, 892 n.11 (3d Cir.

1994); IOP S 6.2.1 (2000 ed.). The District Court

nevertheless reasoned that the two cases indicate that, in

this circuit, attempting service by mail to a prisoner in jail

meets due process requirements.

We have never addressed the specific claim that McGlory

urges upon us now. Our most recent pronouncement on

the issue, which also involved McGlory, held no more than

that the government agency pursuing the forfeiture must

send notice to the facility at which the detainee is actually

incarcerated and that it may not rely on another agency to

do so. See United States v. McGlory, 202 F.3d 664 (3d Cir.

2000) (en banc). We turn then to consideration of whether

due process requires the government to go further and

provide actual notice to an incarcerated defendant against

whom it has initiated forfeiture proceedings.

A.

Our analysis perforce begins with Mullane v. Central

Hanover Bank & Trust, Co, 339 U.S. 306 (1950), which

established the framework for evaluating the adequacy of

notice for due process purposes. As described by the

Supreme Court, the judgment is a highly contextual one.

"An elementary and fundamental requirement of due

process in any proceeding which is to be accordedfinality

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."

Id. at 314 (emphasis added). A person or entity seeking to

give notice must employ means "such as one desirous of

actually informing the absentee might reasonably adopt to

accomplish it." Id. at 315.

Under this framework, it is clear that when an

incarcerated individual is the one being served, the serving

party must attempt to effect service where the prisoner may

be found--that is, in prison, not the pre-incarceration

address. See Robinson v. Hanrahan, 409 U.S. 38, 40 (1972)

(per curiam). As the Magistrate Judge's report recounted,

8

this Court has ruled that notices in other forfeiture

proceedings involving McGlory were inadequate when they

did not attempt to reach him where he was incarcerated.

See United States v. $184,505.01, 72 F.3d 1160 (3d Cir.

1995).

B.

The government argues that precedent supports the

conclusion that direct mail always satisfies due process

requirements. Indeed, Supreme Court authority indicates

that mailing to the location where the party can be found

usually suffices for due process purposes. See Mullane, 339

U.S. at 318. In Mennonite Bd. of Missions v. Adams, 462

U.S. 791, 800 (1983), the Court opined, "[n]otice by mail or

other means as certain to ensure actual notice is a

minimum constitutional precondition to a proceeding which

will adversely affect the liberty or property interests of any

party . . . if its name and address are reasonably

ascertainable." The government points to this language and

to Tulsa Professional Collection Services v. Pope, 485 U.S.

478 (1988), for the proposition that notice by direct mail

suffices to establish its successful discharge of its

obligations to McGlory under the Due Process Clause. See

id. at 490 ("We have repeatedly recognized that mail service

is an inexpensive and efficient mechanism that is

reasonably calculated to provide actual notice.").

While this argument carries strong surface appeal, it

ignores the framework that Mullane decreed. Precedents

endorsing direct mail as a means of meeting constitutional

notice requirements in certain contexts do not establish

that such mailings result in per se satisfaction of notice

requirements. Adequacy of notice is always evaluated by

reference to the surrounding circumstances. See Mullane,

339 U.S. at 314. "The focus is on the reasonableness of the

balance, and, as Mullane itself made clear, whether a

particular method of notice is reasonable depends on the

particular circumstances." Tulsa Professional Collection

Serv., 485 U.S. at 484. For example, in Covey v. Town of

Somers, 351 U.S. 141, 146-47 (1956), the Supreme Court

held that notice sent to an incompetent taxpayer was

inadequate, notwithstanding that the notice was sent by

9

direct mail. Though the facts of Covey are not, of course,

analogous to the case at hand, that case's disposition

stands as a stark example of the imprudence of gleaning

from Supreme Court precedent a per se rule that mail will

always be adequate notice. The proper effort at giving

notice, the effort "such as one desirous of actually

informing the absentee might reasonably adopt to

accomplish it," Mullane, 339 U.S. at 315, will vary under

the circumstances.

C.

Our sister circuits have differed on what kind of notice is

the constitutional minimum for incarcerated individuals

whose property is subject to forfeiture. United States v.

Clark, 84 F.3d 378, 380 (10th Cir. 1996), involved the

government's attempt to serve notice of an administrative

forfeiture to a pre-trial detainee by mailing it to the facility

where he was actually held. The Tenth Circuit held that

this notice met the demands of due process, even if the

party served did not actually receive the mailed notice. See

id. at 381. In concluding that the notice was sufficient, the

court employed a logic similar to that urged by the

government and pointed to the Supreme Court's indication

in Mennonite Bd. of Missions that mail is a constitutionally

acceptable form of notice. See id. "We have found no case

suggesting that service by mail is inadequate or requiring

the government to personally serve an interested party at

the place of incarceration. We decline to create such a

requirement here." Id.

Other courts of appeals, however, have required more. In

Weng v. United States, 137 F.3d 709 (2d Cir. 1998), the

Second Circuit announced a requirement of actual notice.

Weng involved several administrative forfeiture notices, one

of which was sent by certified mail to the federal facility at

which the defendant was detained. See id. at 714. The

court determined that Mullane's balancing analysis

compelled more. Noting the importance of the property

interest at stake to the party notified and his inability to

rely on others to vindicate those interests, see id. at 714-

15, the court declared that the interests and burdens on

the other side of the scale were less pronounced."[A]t least

10

where the owner is in federal custody on the very charges

that justify a federal agency in seeking the forfeiture, there

is no undue hardship to the agency in insuring that the

owner-prisoner actually receive the legally required

notification." Id. at 715. The court further noted the

disparity in the parties' relative ability to take precautions

to ensure the prisoner's receipt of notice.

First, as a prisoner, the owner is unable to insure that

he will receive the notice once the post office has

delivered it to the institution. The owner is entirely

dependent on the institution to deliver his mail to him.

Second, because the owner's jailor--the Bureau of

Prisons--is part of the same government . . . as the

agency seeking to give notice, the forfeiting agent can

in all probability easily secure the Bureau's cooperation

in assuring that the notice will be delivered to the

owner and that a reliable record of the delivery will be

created.

Id.

The court concluded that, under the circumstances,

merely sending notice to the detention facility without

ensuring actual delivery to the prisoner is not notice "such

as one desirous of actually informing [the owner] might

reasonably adopt." Id. (quoting Mullane, 339 U.S. at 315).

Instead, the court held that when the prisoner is in federal

custody on the charges that are the basis of the forfeiture,

"mailing of a notice to the custodial institution is not

adequate unless the notice is in fact delivered to the

intended recipient." Id.; see also United States v. Woodall,

12 F.3d 791, 794-95 (8th Cir. 1993) ("[I]f the government is

incarcerating or prosecuting the property owner when it

elects to impose the additional burden of defending a

forfeiture proceeding, fundamental fairness surely requires

that either the defendant or his counsel receive actual

notice of the agency's intent to forfeit in time to decide

whether to compel the agency to proceed by judicial

condemnation.").

As Weng recites, the circumstances of prisoners differ

greatly from free citizens, a fact that potentially alters the

evaluation of what steps are reasonably calculated to

11

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 there when the papers are delivered. Indeed, it

can even move the person to a more convenient location if

it so chooses. This appears especially the case where, as

here, ongoing criminal proceedings against the prisoner

brought the prisoner into frequent face-to-face contact with

government attorneys.

For his part, a prisoner lacks the ability to take steps to

ensure that his mail is actually delivered to him. This

dilemma is especially acute for a prisoner who may be

transferred from facility to facility, complicating efforts to

effect service. In the outside world, an individual who

changes addresses can arrange to have mail forwarded and

can notify interested parties as to the change of address.

While a prisoner may take similar steps, the effectiveness of

these measures may depend in some degree on such

independent factors as prison policies vis-a-vis the

forwarding of mail or the amount of forewarning a prisoner

receives of an impending transfer. We also note that a

prisoner may not know how long he or she will be at the

changed address, which may make prison forwarding

difficult. Shades of the same problem also exist for a

prisoner who is not moved, but remains at one facility. If a

person lives in an apartment building where the

distribution of mail among the residents leads to lost

missives, that person has some recourse, through

complaint or, possibly, moving elsewhere. Such options are

necessarily curtailed for the prisoner.

The relative burdens and benefits of additional steps to

ensure actual notice, therefore, suggest that requiring

greater efforts at assuring notice by the government is

appropriate. In other words, there is much to commend the

Weng approach, and as an aspiration, the Weng rule

comports with our ideas of the sort of effort that the

government should undertake when it wishes to effect

notice of a forfeiture proceeding against a prisoner in

federal custody. On the other hand, Weng involved a

12

prisoner held in a federal, rather than a state, facility. As

the Seventh Circuit has observed, "[t]he prophylactic Weng

rule, requiring actual notice, becomes less reasonable as

the federal government exercises less control over the

detainee." Donovan v. United States, 172 F.3d 53, 1999 WL

50847, at *2 (7th Cir. Feb. 2, 1999). The rejoinder to this

argument is that, though McGlory was held in a state

facility, he was held pursuant to his arrest on federal

charges, and in contracting with state facilities to house

pre-trial detainees, the federal government has the ability to

demand procedures that will allow the delivery of adequate

notice for prisoners.

Though attractive, the Weng rule does present problems.

The real difficulty with the Weng rule lies not in requiring

the government to demonstrate actual notice, but rather

the evidentiary burden that such a standard could impose

after the passage of time. Given the temporal gap that may

separate a forfeiture from a due process challenge to the

proceedings, it is easy to imagine situations in which proof

of the delivery of notice may be unavailable, even if such

notice was properly served. An overly strict notice

requirement, therefore, could lead to unsettling the

outcome of completed proceedings based on nothing but

bare allegations of a party who had lost property.

More importantly, the Weng approach undermines the

procedural analysis that has heretofore animated the

Supreme Court's dictates on this subject. The Court has

never employed an actual notice standard in its

jurisprudence. Rather, its focus has always been on the

procedures in place to effect notice. See, e.g. , Mennonite Bd.

of Missions, 462 U.S. at 799-80.3 We think this focus

appropriate. Thus, while we will not adopt the Weng rule,

the concerns animating Weng will inform our decision as to

the procedures designed to give notice. We hold that, while

_________________________________________________________________

3. It is true that Tulsa Prof. Collection Services v. Pope, 485 U.S. 478,

485

(1988), speaks in terms of requiring "actual notice" to those with a

liberty or property interest at stake in a proceeding. That opinion,

however, also describes mail service as an acceptable means of providing

actual notice. See id. at 490. In our view, therefore, "actual notice" is

employed not as a rule, but rather as a goal against which various forms

of effecting actual notice are evaluated.

13

the government need not prove actual notice to the

prisoner, if it chooses to rely on less than actual notice, it

bears the burden of demonstrating the existence of

procedures that are reasonably calculated to ensure that

such notice will be given. Thus, our rule requires the

government to ensure that proper procedures are employed

in the facilities where it chooses to house its prisoners.4 Of

course, if there is a signed receipt from the served party,

the government does not then have to prove anything about

the procedures that were in place.5

Because the District Court did not make findings on the

sort of procedures in place at the facility at which McGlory

was housed and whether these procedures were reasonably

calculated to ensure that the notice, once addressed to

McGlory, would still reach him upon arrival at the prison

(and indeed, would only be accepted were McGlory actually

present), we will vacate the District Court's ruling as to the

jewelry forfeiture and remand for further proceedings

consistent with this opinion.

_________________________________________________________________

4. Our ruling is analogous to the approach taken by the Ninth Circuit in

United States v. Real Property, 135 F.3d 1312 (9th Cir. 1998). In that

case, the court declined to require actual notice to a forfeiture

defendant

when notice was sent by certified mail to the facility in which he was

held awaiting trial and evidence was presented that the facility handled

certified mail to inmates by opening the letters in their presence and,

after checking for contraband, giving the contents directly to them. See

id. at 1315. Under these circumstances, the court concluded that

sufficient notice was given. See id. at 1316.

5. Our approach would also apply to the problem of the relocated

prisoner. Just as the government can monitor whether mail reaches a

prisoner within a facility, it can similarly ensure that mail will follow

an

inmate who is transferred from one facility to another. See generally

Small v. United States, 136 F.3d 1334, 1337 (D.C. Cir. 1998) (deeming

notice inadequate when notice sent to jail and returned absent

indication that effort to find prisoner for resending would be burdensome

to government); Armendariz-Mata v. U.S. Dep't of Justice, D.E.A., 82 F.3d

679, 683 (5th Cir. 1996) (holding notice inadequate when notice to jail

returned undelivered and sender made no further inquiry).

14

III.

In the forfeiture proceeding regarding the Toshiba

television and other electronic equipment, the government

made no attempt to serve McGlory in jail. For due process

purposes, therefore, the attempted notice was clearly

inadequate. Though the government concedes the

constitutional deficiency of its notice, it contends, and the

District Court agreed, that McGlory's motion to vacate

judgment on this forfeiture is precluded by the doctrine of

laches. We disagree.

A.

The District Court treated McGlory's motion as arising

under Federal Rule of Civil Procedure 60(b), but concluded

that the improper notice given by the government of the

forfeiture proceedings rendered the judgments, as applied

against him, "voidable" rather than "void," as provided by

Fed. R. Civ. Proc. 60(b)(4). We think this conclusion

incorrect. As a general matter, we have held that the entry

of a default judgment without proper service of a complaint

renders that judgment void. See Gold Kist, Inc. v.

Laurinburg Oil Co., Inc., 756 F.2d 14, 19 (3d Cir. 1985). The

majority of courts of appeals to consider the fate of a prior

forfeiture proceeding that violated notice requirements

agree that a judgment issued without proper notice to a

potential claimant is void. See United States v. Marolf, 173

F.3d 1213, 1216 (9th Cir. 1999); Clymore v. United States,

164 F.3d 569, 573 n.5 (10th Cir. 1999); Muhammed v.

D.E.A., Asset Forfeiture Unit, 92 F.3d 648, 654 (8th Cir.

1996); Barrera-Montenegro v. United States, 74 F.3d 657,

661 (5th Cir. 1996); United States v. Giraldo , 45 F.3d 509,

512 (1st Cir. 1995). But see United States v. Dusenbery,

201 F.3d 763, 768 (6th Cir. 2000) (treating forfeiture as

voidable rather than void); Boero v. D.E.A., 111 F.3d 301,

307 (2d Cir. 1997) (same).

In light of our decision in Gold Kist, we are in accord with

the majority view. Gold Kist involved a service of a

summons and complaint in a manner that did not conform

with Pennsylvania law. See Gold Kist, 756 F.2d at 18.

Defendants in that action challenged the default judgment

15

entered against them. Citing Fed. R. Civ. Proc. 60(b)(4), we

declared that "[a] default judgment entered when there has

been no proper service of complaint is, a fortiori, void, and

should be set aside." Id. at 19. Because of the complaint's

improper service, as well as the entry of default judgment

before the expiration of the time for filing an answer, see

id., the Gold Kist panel refrained from considering other

factors that could also justify the setting aside of a default

judgment. See id.

The same logic applies here. Though we understand the

concern expressed by the Sixth Circuit in Dusenbery that a

prisoner claimant could sit on his or her rights until after

the passage of the statute of limitations for the government

to reinitiate a proceeding, see Dusenbery, 201 F.3d at 768,

we conclude that this concern can be addressed by other

means, see id. at 769 (Cole, J., dissenting). As we explain

below, a holding that the forfeiture against McGlory's

property was void does not equate to a ruling that he is

entitled to a return of the property or monetary relief from

the government, because a Rule 60(b) motion is not a claim

for the return of property. McGlory will therefore have to

pursue further proceedings to recover his property, and it

is in these proceedings that the government may invoke

defenses that are predicated on McGlory's alleged delay.

B.

The District Court ruled that McGlory's motion to vacate

was barred by the doctrine of laches. The doctrine of laches

hails from equity, and is invoked when two essential

elements exist: inexcusable delay in instituting suit, and

prejudice resulting to the defendant from such delay. See

Central Penn. Teamsters Pension Fund v. McCormick Dray

Line, Inc., 85 F.3d 1098, 1108 (3d Cir. 1996). We conclude

that the District Court was incorrect to have applied laches

analysis to McGlory's motion.

McGlory's motion was to vacate the forfeiture judgments

against him and is treated, as discussed above, as arising

under Fed. R. Civ. Proc. 60(b). It is understandable why the

District Court may have thought that the doctrine of laches

applied. A motion under Rule 60(b) is equitable in nature,

16

so it is reasonable to believe that equitable doctrines apply.

See Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir. 1947)

("The proceeding by motion to vacate a judgment is not an

independent suit in equity but a legal remedy in a court of

law; yet the relief is equitable in character and must be

administered upon equitable principles."); see also Winfield

Assocs., Inc. v. W.L. Stonecipher, 429 F.2d 1087, 1090 (10th

Cir. 1970) ("Rule 60(b) . . . specifically preserves the right

to attack a judgment by an independent equitable action.");

In re Brown, 68 F.R.D. 172, 174 (D.D.C. 1975) (describing

Rule 60(b) as codification of methods of gaining equitable

relief from judgments).

In light of our ruling that the judgment against McGlory

in the electronic equipment forfeiture is void, however, no

passage of time can transmute a nullity into a binding

judgment, and hence there is no time limit for such a

motion. It is true that the text of the rule dictates that the

motion will be made within "a reasonable time." See Fed. R.

Civ. Proc. 60(b). However, nearly overwhelming authority

exists for the proposition that there are no time limits with

regards to a challenge to a void judgment because of its

status as a nullity; thus laches is no bar to recourse to

Rule 60(b)(4). See Hertz Corp. v. Alamo Rent-A-Car, Inc., 16

F.3d 1126, 1130-31 (11th Cir. 1994) (collecting cases);

Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir. 1993); Katter

v. Arkansas Louisiana Gas Co., 765 F.2d 730, 734 (8th Cir.

1985); In re Center Wholesale, Inc., 759 F.2d 1440, 1448

(9th Cir. 1985); Misco Leasing, Inc. v. Vaughn , 450 F.2d

257, 260 (10th Cir. 1971); Austin v. Smith, 312 F.2d 337,

343 (D.C. Cir. 1962); Moore v. Positive Safety Manufacturing

Co., 107 F.R.D. 49, 50 (E.D. Pa. 1985); see also Rodd v.

Region Constr. Co., 783 F.2d 89, 91 (7th Cir. 1986) ("[T]he

reasonable time criterion of Rule 60(b) as it relates to void

judgments, means no time limit because a void judgment is

no judgment at all.") (citation and quotation omitted).

We agree that no passage of time can render a void

judgment valid, and a court may always take cognizance of

a judgment's void status whenever a Rule 60(b) motion is

brought. Without addressing any other reason to bar a Rule

60(b) motion that attacks a judgment as void,6 we hold that

_________________________________________________________________

6. We also note that McGlory's delay vis-a-vis attacking the judgment (as

opposed to inquiring into the disposition of his property, an issue that

17

laches may not be used to preclude such a motion. Cf.

Micro Leasing, 450 F.2d at 260 ("The cases say that a void

judgment acquires no validity as the result of laches on the

part of the adverse party. We are not asked to consider

whether under any particular circumstances a movant

under Rule 60(b) may be estopped or precluded fromfiling

such a motion.") (footnote omitted).

C.

Though we hold that laches is not available to preclude

a claimant from attacking a void judgment, our holding is

not to be construed as allowing a petitioner to sit on his or

her rights. It is true that if a court is able to determine that

a prior judgment is indeed void, it should declare it as

such, but that does not mean that other remedies, such as

the actual return of property or its cash value, are immune

from defenses of waiver or laches. In other words, we

conclude that the potential prejudice that arises from such

delay is best dealt with outside of the Rule 60(b) context.

Whether McGlory unreasonably delayed in seeking

recovery of his property in general, which is the laches

issue considered by the District Court, is a matter distinct

from whether the judgment that forfeited the property was

void. That is not, however, a matter that is before this

Court. We are only reviewing the denial of McGlory's motion

to vacate. Even if he prevails on this motion, that does not

mean that he is entitled to any monetary relief or relief in

the form of a transfer of property. It has been held that

_________________________________________________________________

is not before us) was clearly not unreasonable. He maintains that he

promptly sought relief from the judgments against him once he learned

of them in 1994, and the District Court made no factfindings that

indicate that McGlory learned of the judgments at an earlier date. Nor

does this appear to be a situation in which McGlory can be accused of

having waived his ability to bring a Rule 60(b) motion, as he did not

previously launch a Rule 60(b) attack against the judgments. Cf. Beller

& Keller v. Tyler, 120 F.3d 21, 23-24 (2d Cir. 1997) (acknowledging that

laches cannot give a void judgment validity, but suggesting that a motion

may be untimely when the voidness challenge is raised on a successive

motion to vacate).

18

Rule 60(b) does not provide for such remedies. See United

States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d

1353, 1356-57 (5th Cir. 1972) (holding that monetary

remedy for void forfeiture, which depends on waiver of

sovereign immunity, lies not in Rule 60(b) but in 28 U.S.C.

S 1346(a)); see also United States v. $119,980.00, 680 F.2d

106, 107-08 (11th Cir. 1982) (holding Rule 60(b) may not

be used to impose affirmative relief beyond setting aside

prior judgment); United States v. One Douglas A-26B

Aircraft, 662 F.2d 1372, 1377 (11th Cir. 1981) (same). In

order to obtain such relief, McGlory may have to look

elsewhere.

It is in the pursuit of his remedies that McGlory's delay,

if any, will become an issue. Though the vacatur of the

earlier judgment will be a powerful weapon for McGlory in

such an effort, it will not decide the issue. McGlory would

have to act within the confines of whatever legal framework

surrounds the legal or equitable remedy he will elect to

pursue. At that time, the District Court may consider

whether the doctrine of laches applies, or whether the six-

year statute of limitations for suits against the federal

government is applicable. See 28 U.S.C.S 2401(a). It would

appear that the federal statute applies, see Menkarell v.

Bureau of Narcotics, 463 F.2d 88, 91 (3d Cir. 1972)

(applying six-year statute of limitations of 28 U.S.C.

S 2401(a) in attempt to recover forfeited property), even if

the action is characterized as equitable, see, e.g.,

Blassingame v. Secretary of Navy, 811 F.2d 65, 70 (2d Cir.

1987) ("[T]he merger of law and equity assured that section

2401(a) covers both legal and equitable actions.").

If the District Court concludes laches analysis to be in

order anyway, it will have to determine the interplay

between laches and the relevant statute of limitations,

giving consideration to the cases that indicate that if a suit

is brought within the statutory period, laches would

generally be unavailable. See, e.g., Central Penn. Teamsters

Pension Fund v. McCormick Dray Line, Inc., 85 F.3d 1098,

1108 (3d Cir. 1996); Henry v. United States, 46 F.2d 640,

642 (3d Cir. 1931) ("While there is no statute of limitations

in equity, yet it generally in this respect follows the law,

and will, in the absence of special extenuating

19

circumstances . . . regard the delay as inexcusable and

refuse relief after the time of the statute of limitations in

that particular locality has expired."); Ikelionwu v. United

States, 150 F.3d 233, 238 (2d Cir. 1998) (declining to

invoke laches when suit to recover forfeited property

brought within statutory period). Also, insofar as it

considers the doctrines of equity, the District Court will

also have to consider whether the party asserting the

defense of laches has clean hands. See United States v.

Marolf, 173 F.3d 1213, 1219 (9th Cir. 1999) (refusing to

reverse district court's rejection of laches defense in light of

government's "inexplicable fail[ure] to remedy" an improper

administrative notice or initiate proper judicial

proceedings).

We reference the foregoing authority not to express any

view on the merits but only to flag important issues that

the District Court did not appear to consider in its analysis

of laches. At all events, we make no ruling on issues of

inexcusable delay because all we have before us is the

motion to vacate, and, as we have held, laches analysis

does not apply to such a motion. Finally, in ruling that the

judgment in the electronic equipment forfeiture is void, we

offer no opinion as to whether the government is prohibited

from reinitiating the forfeiture action against McGlory or if

the passage of the relevant statute of limitations has been

tolled. The District Court will have to consider the issue

should the government attempt to reinitiate such

proceedings.

The judgment of the District Court will be vacated and

the case remanded for further proceedings consistent with

this opinion.

20

ALITO, Circuit Judge, concurring and dissenting:

I join parts I and III of the opinion of the court and

concur in the judgment insofar as it relates to No. 98-3578.

However, I respectfully dissent from the court's disposition

of No. 98-3579 and from part II of the opinion of the court,

which adopts an interpretation of due process that has no

basis in prior decisions of the Supreme Court or our circuit.

The question before us is not whether it would be good

policy to require the government in forfeiture proceedings to

provide notice to interested parties by some means superior

to the mail. Rather, the question is whether the government

complied with the minimum requirements of the Due Process

Clause by sending notice by mail (return receipt requested)

to McGlory at the facility where he was detained. Under

Supreme Court precedent, this met constitutional

standards. The Supreme Court has repeatedly referred to

the service of notice by mail as sufficient to satisfy the

minimum requirements of due process. See, e.g. , Tulsa

Prof 'l Collection Services v. Pope, 485 U.S. 478, 490 (1988);

Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800

(1983) ("Notice by mail or other means as certain to ensure

actual notice is a minimum constitutional precondition to a

proceeding which will adversely affect the liberty or

property interests of [a] party . . . ."). 1

The majority seemingly acknowledges that service by mail

sent to the addressee's current address is constitutionally

adequate in almost all other contexts, but the majority

holds that such notice may not be sufficient when sent to

a detainee or prisoner. Why? Why is it that mail sent to,

say, an inexpensive long-term-occupancy hotel is

reasonably calculated under all the circumstances to

apprise an interested party of the pendency of a forfeiture

_________________________________________________________________

1. On only one occasion has the Court held that notice by mail sent to

the addressee's correct address was not constitutionally adequate. In

Covey v. Town of Somers, 351 U.S. 141 (1956), the Court held that due

process was violated where notice of foreclosure for delinquent taxes was

mailed to a person who was known to be incompetent, lived alone, and

had no guardian, no relatives in the state, and no other person who was

able to help her with her taxes. Id. at 146-47. Thus, Somers hardly

supports the majority's holding here.

21

action but mail sent to a jail or prison may not be? The

answer must be that there is a significantly higher

probability that mail sent to such hotels will reach the

addressees than is the case with mail sent to a jail or

prison. But where is the evidence that this is so? The

majority studiously avoids this point--for the very good

reason that no evidence whatsoever to this effect has been

adduced, by McGlory, the majority in this case, or any

other judicial opinion of which I am aware. Such systemic

problems may or may not exist; I don't know; and I doubt

that my colleagues do either. But without such evidence,

there is no logical basis for the majority's decision.

It may well be that it would be advisable for those with

legislative or rulemaking authority to require the

government in forfeiture cases to provide better notice than

is required by the minimum standard imposed by due

process. Congress has recently manifested concern about

the fairness of federal forfeiture procedures and has

enacted the Civil Asset Forfeiture Reform Act of 2000, Pub.

L. No. 106-185, 114 Stat. 202 (2000), to remedy the

problems that it found. This Act, however, does not require

that notice of forfeiture be provided by some means better

than the mail, but perhaps Congress should consider that

question. Congress has the capability--which the federal

courts plainly lack--to investigate whether notice of

forfeiture sent by mail fails to reach the addressee in a

significant number of cases. (The mere fact that McGlory

and a handful of other federal prisoners and detainees have

claimed that they did not receive notice sent by mail to

their facilities is hardly enough to show the existence of a

serious problem.) Congress also has the ability to craft a

rule that is specifically targeted to deal with any problem it

finds to exist. It can specify the addressees to which any

such rule applies--e.g., all persons to whom notice is

provided, only those in custody, only those in custody on

federal charges, or only those in federal facilities. And it can

provide that any new rule will not have retroactive effect. A

court, in interpreting the Due Process Clause, lacks such

flexibility."

I have three additional observations about the majority's

decision. First, although the decision formally applies only

22

to notices of forfeiture sent by the federal government to

persons in custody on federal charges, its logic extends to

any forfeiture notices sent to any persons in custody. If

notice of a federal forfeiture proceeding that is sent by mail

to a person in a state facility on federal charges is not

reasonably calculated under all the circumstances to

apprise that person of the pendency of the federal forfeiture

proceeding, notice of a state forfeiture proceeding that is

sent by mail to another person held in the same facility on

state charges cannot be reasonably calculated to inform

that person of the pendency of the state forfeiture

proceeding. Thus, the majority's decision has a broad

logical sweep.

Second, the majority's standard regarding the adequacy

of mail handling procedures is left open-ended and will

almost certainly lead to confusion and litigation. Under the

majority's decision, notice by mail to a detainee or prisoner

satisfies due process only if the facility's mail handling

procedures at the time in question were reasonably

calculated to ensure that the notice reached the addressee.

See Maj. Op. p. 14. What does this mean in practical

terms? Must there be a written policy? Must the addressee

sign a receipt? May delivery of the mail be entrusted to

other detainees or prisoners? Must the mail be handed to

the addressee personally? One or more rounds of litigation

will almost certainly be required to answer these and

related questions.

Third, although the majority has attempted to devise a

rule that will not impose an undue evidentiary burden in

cases in which forfeiture judgments are sought to be

vacated for lack of proper notice, the majority's decision

may well prove quite difficult to administer. As previously

noted, the majority's mail handling standard is murky, and

attempting to establish what procedures were followed at

various points in the past at the numerous state and

federal facilities in which federal detainees and prisoners

have been held may not be easy. And if the majority's

decision is extended to state detainees and prisoners, as I

think logic requires, the problem will be magnified.

I would hold that due process was satisfied and leave it

to the legislative or rulemaking processes to decide whether

23

additional notice requirements should be imposed in

forfeiture cases.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

24