Government Need Only Show that it Employed Procedures Reasonably Calculated to Provide Notice to a Prisoner of Civil Forfeiture Action
On November 7, 2019, the Second Circuit (Calabresi, Livingston, Lohier) issued a per curiam decision in United States v. Brome, holding that the Government generally must demonstrate the existence of procedures reasonably calculated to ensure that a prisoner receives notice of a forfeiture action against him.
Wayne Brome was arrested in September 2010 after driving without a license while on parole for a felony weapons conviction. At the time of his arrest, $21,019 in cash was seized from his pocket. In October 2010, the Drug Enforcement Administration (DEA) adopted the seizure and proceeded with a federal forfeiture action under 18 U.S.C. § 983 and 19 U.S.C. § 1607. Under the Civil Asset Forfeiture Reform Act of 2000, 18 U.S.C. § 983, law enforcement officials may take possession of assets – such as cash or even real property – that is suspected of being connected to criminal activity. But the statute also required the DEA to send written notice of the forfeiture action to any “interested party” – here, Brome – within 90 days. If the Government fails to provide adequate notice, it must return the seized assets to their original owner. But if the Government provided adequate notice and the potential claimant did not respond, the agency can administratively forfeit the assets.
The question at issue in this case was what constitutes adequate “notice” to an interested party for the purpose of a civil forfeiture action. The Second Circuit had previously held that the Government needed to provide “actual” notice to the property owner. See Yeung Mung Weng v. United States, 137 F.3d 709 (2d Cir. 1998). But in Dusenberry v. United States, 534 U.S. 161 (2000), the United States Supreme Court held that the Government need only take steps “reasonably calculated” to provide notice, regardless of whether the property owner actually receives notice. In light of Dusenberry, the Second Circuit held here in Brome that the Government did need to provide actual notice, but that it was enough that it “attempt to provide actual notice.”
The Court noted, however, that even after Dusenberry a split remains among the circuits as to what constitutes adequate notice to prisoners, which Brome was at the time the Government attempted to provide notice. Siding with the Third and Fourth Circuits, the Court held that the Government “generally must demonstrate the existence of procedures reasonably calculated to ensure that a prisoner receives notice of the forfeiture action.” It will usually be sufficient if the Government can show that it sent notice by certified return receipt to the correctional facility where the prisoner is being detained and that the facility’s mail distribution procedures are reasonably calculated to deliver the mail to the prisoner. But whether a particular method is reasonable will depend on the particular circumstances.
In this case, the DEA sent multiple notices to Brome’s previous home address and, in December 2010, sent notice by certified mail and first-class mail to Brome at the Wayne County facility where he was being detained. Because Brome never filed a claim for the seized cash, the DEA administratively forfeited it. More than two years later, Brome moved in the U.S. District Court for the Western District of New York for the return of the seized cash. An affidavit submitted by the Government to the District Court described the inmate mail logging and distribution system at the Wayne facility, and included a printout of the mail log from December 29, 2010 showing that the prison had received two envelopes from the DEA addressed to Brome. The District Court concluded that the DEA’s notice was adequate and denied the motion, and Brome appealed.
The Second Circuit agreed with the District Court that that the procedures used by the Government were reasonably calculated to apprise Brome of the pendency of the cash forfeiture. The evidence showed that the Wayne County jail employed adequate procedures designed to ensure that inmates received their mail and that in fact the two notices to Brome were received by the facility in December 2010. Under the circumstances, notice was adequate and Brome’s failure to make a claim forfeited his right to the assets.
The decision in Brome seems to strike a reasonable balance between the goals of efficiency and fairness. Here, the government was able to provide evidence beyond a mere certificate of service to show that Brome did receive actual notice of the forfeiture. The government also left the door open for other inmates in the future to prevail on a notice argument when the evidence of actual notice is more equivocal.