ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Nos. 89-Civ-2323, 90-Civ-236, and 90-Civ-369)
Before: SLOVITER, Chief Judge, ALITO, Circuit Judge, and
RENDELL, District Judge *fn*
Argued September 13, 1995
Opinion Filed: December 29, 1995)
In these appeals, Reginald D. McGlory challenges the district court's refusal to set aside default judgments in three separate civil in rem forfeiture proceedings brought under 21 U.S.C. Section(s) 881(a)(6). *fn1 McGlory raises five separate issues -- lack of notice, double jeopardy, wrong standard in refusing to set aside default judgments, insufficient reasons for refusing to set aside default judgment, and misstatement or fraud on the part of the government. Because we find that the government violated McGlory's due process rights by failing to provide him with adequate notice of two of the proceedings, we reverse the district court's judgments in those proceedings. However, we reject McGlory's double jeopardy argument and therefore affirm the district court's judgment in the remaining proceeding. We also reject McGlory's remaining arguments.
On September 8, 1989, as part of a criminal investigation of McGlory, federal Drug Enforcement Administration ("DEA") and Internal Revenue Service ("IRS") agents executed a search warrant at 4265-67 Bryn Mawr Road in Pittsburgh. Among other things, the agents seized the items that are the subject of the three proceedings on appeal: $14,584.50 in cash ("$14K") *fn2; three statues *fn3; and an apparently separate collection of $184,505.01 in cash ("$184K"). *fn4 The agents also arrested McGlory. He was eventually convicted of conspiracy to distribute heroin and to possess heroin with the intent to distribute it, in violation of 21 U.S.C. Section(s) 846; possession of heroin with intent to distribute, in violation of 21 U.S.C. Section(s) 841(a)(1), (b)(1)(C); possession of a firearm by a convicted felon, in violation of 18 U.S.C. Section(s) 922(g)(1); using a firearm in a drug trafficking operation, in violation of 18 U.S.C. Section(s) 924(c)(1); and laundering drug proceeds, in violation of 18 U.S.C. Section(s) 1956(a)(1)(A)(i) and 18 U.S.C. Section(s) 2. See United States v. McGlory, 968 F.2d 309, 314-15 (3d Cir. 1992), cert. denied, 113 S. Ct. 1388 (1993).
The DEA began separate administrative forfeiture proceedings against the $14K and the statues. *fn5 McGlory, who was incarcerated, received notice of both proceedings in prison, Supplemental Appendix ("Supp. App.") *fn6 at 60, 23, but filed no administrative claims in either proceeding. Id. Upon the filing of administrative claims by Sandra McGlory (McGlory's wife) and Ola Mae McGlory (his mother) to the $14K and the statues, respectively, Supp. App. 52, 55, 60, 23, the DEA referred the forfeitures to the United States Attorney, who filed complaints for civil forfeiture on February 7, 1990 (for the $14K) and February 28, 1990 (for the statues).
The government served McGlory with the complaints via first class and certified mail at the Bryn Mawr Road address, where his mother signed both certified mail receipts. Supp. App. 43, 213-16, 4. In her affidavit, McGlory's mother claimed not to remember receiving the notices but stated that she would have turned any such notices over to the attorney who was representing McGlory on the criminal charges, Thomas Ceraso, Esq. Appendix ("App.") at 117. The government did not serve McGlory in prison, and made no attempt to do so.
McGlory did not file any claim or answer in either proceeding, App. 1-6, 27, 31, and the district court entered default judgments against him on May 29, 1990, and July 23, 1990, forfeiting the $14K and the statues, respectively. App. 21-22. McGlory filed motions to set aside the default judgments on April 21, 1994. App. 34,43. After referring the matter to a magistrate judge, who recommended that the default judgments not be reopened, the district court denied McGlory's motions. App. 3, 9.
The government filed a complaint for civil forfeiture of the $184K on November 21, 1989. App. 7, 17. The government served the complaint on McGlory via first class and certified mail at the Bryn Mawr Road address, as well as on Mr. Ceraso. Supp. App. 19. When McGlory again failed to file any claim or answer, the government obtained a default judgment. Supp. App. 99, 111. On McGlory's behalf, Mr. Ceraso then filed a claim of ownership and a motion to set aside the entry of default, which the government did not oppose, and the court set aside the judgment. Supp. App. 102-110, 112. McGlory again failed to file an answer within the time allotted by the court, and the court entered another default judgment against him on April 12, 1991. Supp. App. 129, App. 23. On July 15, 1994, McGlory filed a motion to set aside this second default judgment, which the district court denied.
McGlory first argues that his due process rights were violated in that the government failed to provide him with adequate notice of the civil forfeiture proceedings against the $14K and the statues. Relying primarily on the Supreme Court's decision in Robinson v. Hanrahan, 409 U.S. 38 (1972), McGlory argues that Due Process Clause required that the government serve him with notice of the forfeiture proceedings in prison. *fn7
By virtue of 28 U.S.C. Section(s) 2451, civil in rem forfeiture proceedings are governed by Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims. As the government notes, Rule C(4) requires only publication, not personal service of process. However, for due process purposes, publication alone is not sufficient when the government can reasonably ascertain the ...