Rule 206 ELECTRONIC CITATION: 2000 FED App. 0017P (6th Cir.) File Name: 00a0017p.06… v. Larry Dean Dusenbery

*The Honorable Judge John R. Gibson, Circuit Judge of the United
States Court of Appeals for the Eight Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0017P (6th Cir.)
File Name: 00a0017p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee/
Cross-Appellant,
v.
LARRY DEAN DUSENBERY ,
Defendant-Appellant/
Cross-Appellee.
;>

1
Nos. 98-4014/
4036
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 91-00291—Kathleen McDonald O’Malley,
District Judge.
Argued: September 14, 1999
Decided and Filed: January 13, 2000
Before: SUHRHEINRICH, COLE, and GIBSON*, Circuit
Judges.

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2 United States v. Dusenbery Nos. 98-4014/4036
1In connection with this conviction, the Government obtained civil
forfeiture of several items of Dusenbery’s property, including $21,940.00
in U.S. currency and a 1984 Chevrolet Monte Carlo. Dusenbery later
moved unsuccessfully for the return of this property, claiming that the
forfeited property was his and that the government’s forfeiture
_________________
COUNSEL
ARGUED: Paul Mancino, Jr., MANCINO, MANCINO &
MANCINO, Cleveland, Ohio, for Appellant. James L.
Morford, OFFICE OF THE U.S. ATTORNEY, Cleveland,
Ohio, for Appellee. ON BRIEF: Paul Mancino, Jr.,
MANCINO, MANCINO & MANCINO, Cleveland, Ohio, for
Appellant. James L. Morford, OFFICE OF THE U.S.
ATTORNEY, Cleveland, Ohio, for Appellee. Larry Dean
Dusenbery, Terre Haute, Indiana, pro se.
SUHRHEINRICH, J., delivered the opinion of the court, in
which GIBSON, J., joined. COLE, J. (p. 13), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge. Defendant-Appellant
Larry Dean Dusenbery appeals the district court’s judgment
denying his motion under Fed. R. Crim. P. 41(e) for the return
of forfeited property. Plaintiff-Appellee United States cross-
appeals the district court’s ruling that its administrative
forfeiture notices were constitutionally insufficient. For the
following reasons, we AFFIRM.
I. Background
In 1986, Dusenbery was convicted and incarcerated for
possession and distribution of cocaine. See United States v.
Dusenbery, No. 86-CR-102 (N.D. Ohio 1986).1 While

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Nos. 98-4014/4036 United States v. Dusenbery 3
proceedings were improper. This court reversed, and remanded for
further proceedings. See Dusenbery v. United States, 1996 WL 549818
(6th Cir. Sept. 25, 1996). On July 23, 1997, an evidentiary hearing was
held regarding Dusenbery’s motion for return of property. See Dusenbery
v. United States, No. 5:95-CV-1872 (N.D. Ohio July 23, 1997)
(hereinafter “Dusenbery I”). These items are not at issue in this appeal.
2Rule 41(e) provides in pertinent part:
A person aggrieved by an unlawful search and seizure or by the
deprivation of property may move the district court for the
district in which the property was seized for the return of the
property on the ground that such person is entitled to lawful
possession of the property.
Fed. R. Crim. P. 41(e).
incarcerated, Dusenbery continued to oversee and operate his
cocaine distribution network. This resulted in his 1994
conviction for engaging in a continuing criminal enterprise
(“CCE”), in violation of 21 U. S. C. § 848. This Court
affirmed his conviction and sentence. See United States v.
Dusenbery, No. 94-3804, 1996 WL 306517, at *1 (6th Cir.
June 6, 1996). Incident to this conviction, the Government
obtained administrative civil forfeiture of several items of
Dusenbery’s property. These items included: (1) $18,672.74
seized on July 9, 1990, and forfeited on October 19, 1990; (2)
$80,141.93, seized on July 9, 1990, and forfeited on October
19, 1990; (3) a 1990 Oldsmobile Delta 88 convertible, seized
on October 10, 1991, and forfeited on April 20, 1992; (4) a
1956 Corvette convertible, seized on October 21, 1991, and
forfeited on April 28, 1992; and (5) a $20,754.23 National
City Bank cashier’s check, listed in the name of Dusenbery
and Edward Clouse (his mother’s boyfriend), seized on
August 8, 1990, and forfeited on July 29, 1992.
On July 10, 1996, Dusenbery moved, under Fed. R. Crim.
P. 41(e)2, for the return of his property. Dusenbery claimed
that the seizure of his property violated due process because
the Government failed to notify him of its intent to forfeit his
property. Significantly, Dusenbery did not claim at that time
that the statute of limitations had already run when the

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4 United States v. Dusenbery Nos. 98-4014/4036
3It appears that the applicable statute of limitations, which is five
years from the discovery of the alleged offense, had already run on some
of the items at issue. See 19 U.S.C. § 1621.
Government sent the allegedly defective notices.3 The
Government responded that Dusenbery received notice
because it sent personal notice to Dusenbery’s mother and to
the Milan Federal Correctional Institute (“Milan FCI”), where
the Government maintained Dusenbery was incarcerated. The
Government also stated that notice of the proposed forfeiture
was published in the Cleveland Plain Dealer. Finally, the
Government argued that Dusenbery was put on notice through
the evidence presented at his CCE trial. Dusenbery replied
that he was not at Milan FCI when the notice was sent
because he had been transferred to a local jail to await trial.
The district court denied the Rule 41(e) motion, concluding
Dusenbery had received adequate notice of each proposed
forfeiture, and that the Government had properly executed the
forfeiture process. On appeal, we reversed and remanded for
an evidentiary hearing. See United States v. Dusenbery, No.
96-3941, 1997 WL 321148, at *2 (6th Cir. June 11, 1997).
We held that, “under all the circumstances of this case, the
record before this court does not establish that Dusenbery was
provided constitutionally adequate notice of the seizures and
impending forfeitures at issue.” Id. at *2. We instructed the
district court that if it found insufficient notice, “Dusenbery
should be given an opportunity to contest the forfeitures at
this time.” Id. at *3.
On remand, the district court determined that an evidentiary
hearing was not necessary because “documentary evidence
filed by the government, alone, reveal that Dusenbery never
received actual notice of the pending forfeitures of his
property.” It proceeded to find that the notices were thus
insufficient as a matter of law. It also found that “the
government’s motion for summary judgment assumed
insufficient notice,” thereby making an evidentiary hearing
unnecessary. The district court rejected Dusenbery’s
argument, made for the first time on remand, that further
Nos. 98-4014/4036 United States v. Dusenbery 13
___________________
DISSENT
___________________
R. GUY COLE, JR., dissenting. I disagree with the
majority opinion in this case because I find the reasoning of
the Ninth and Tenth Circuits in United States v. Marolf, 173
F.3d 1213 (9th Cir. 1999) and Clymore v. United States, 164
F.3d 569 (10th Cir. 1999) more persuasive than the Second
Circuit’s decision in Boero v. Drug Enforcement Agency, 111
F.3d 301 (2nd Cir. 1997).
As the majority stated, in Boero, the Second Circuit held
that defective notices of appeal should be treated as voidable
rather than void, thereby tolling the statute of limitations for
the filing of judicial forfeiture proceedings. I disagree, seeing
no reason to determine the merits of a challenged forfeiture
when the original notice was constitutionally defective and
the statute of limitations has run. Inadequate notice is void
and constitutionally defective. In this instance, there is simply
no reason to disregard the five-year statute of limitations set
forth in 19 U.S.C. § 1621, short of the rare occasions when
the government has a valid basis for the application of laches
or equitable tolling. Such would be the case when a claimant
receives borderline notice and sits on a Rule 41(e) motion
until the five-year statute of limitations has run, a scenario
that the majority fears.
As noted in Marolf, courts should be “particularly wary of
civil forfeiture statutes, for they impose ‘quasi-criminal’
penalties without affording property owners all of the
procedural protections afforded criminal defendants.” 173
F.3d at 1217 (citation and quotation omitted). Further, “[d]ue
process protections ought to be diligently enforced, and by no
means relaxed, where a party seeks the traditionally
disfavored remedy of forfeiture.” Clymore, 164 F.3d at 574
(citation and quotation omitted). For these reasons, I
respectfully dissent from the majority opinion.

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12 United States v. Dusenbery Nos. 98-4014/4036
obviates any need to address the Government’s cross-appeal.
Accordingly, we AFFIRM the judgment of the district court.
Nos. 98-4014/4036 United States v. Dusenbery 5
4At the evidentiary hearing on the motion for return of property in
Dusenbery I, Dusenbery testified that he had used the money he earned
through selling drugs to purchase seventeen items of personal property
and the Monte Carlo seized in connection with the 1986 conviction. See
supra, note 1.
521 U.S.C. § 881(a)(6) provides that the following are subject to
forfeiture:
All moneys, negotiable instruments, securities, or other things of
value furnished or intended to be furnished by any person in
exchange for a controlled substance . . . , all proceeds traceable
to such an exchange, and all moneys, negotiable instruments,
forfeiture proceedings were barred by the five-year statute of
limitations. See 19 U.S.C.A. § 1621 (West 1999). After
considering the merits of the forfeiture, the district court
found that the Government established probable cause that the
property constituted proceeds, or was purchased with
proceeds from illegal drug sales.4 Because Dusenbery failed
to rebut this showing of probable cause, the district court held
that forfeiture was proper and granted summary judgment to
the Government.
II. Analysis
The court of appeals reviews an order granting summary
judgment de novo and uses the same test as used in the
district court. See Terry Barr Sales Agency, Inc. v. All-Lock
Co., 96 F.3d 174, 178 (6th Cir. 1996). Summary judgment is
proper “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).
Section 881 of Title 21 of the United States Code, which is
part of the Comprehensive Drug Abuse Prevention and
Control Act, Pub. L. 91-313, Title II, § 511, 84 Stat. 1276
(1970), authorizes the United States to subject proceeds of
drug transactions to civil forfeiture proceedings. See 21
U.S.C.A. § 881(a)(6) (West Supp. 1999).5 Under the

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6 United States v. Dusenbery Nos. 98-4014/4036
and securities used or intended to be used to facilitate any
violation of this subchapter.
21 U.S.C.A. § 881(a)(6) (West Supp. 1999).
6“No . . . forfeiture of property accruing under the customs laws shall
be instituted unless such suit or action is commenced within five years
after the time when the alleged offense was discovered.” 19 U.S.C.A.
§ 1621 (West 1999).
applicable statute of limitations, the government agency has
five years from the discovery of the alleged offense to
institute a judicial forfeiture proceeding. 19 U.S.C.A. § 1621
(West 1999).6
If the property is valued at $500,000 or less, the DEA may
use an administrative forfeiture process in the customs laws.
See 19 U.S.C.A. § 1607(a)(West 1999); 21 U.S.C.A.
§ 881(d)(West 1999). Publication of notice begins the
administrative forfeiture. See 19 U.S.C.A. § 1607(a); 21
C.F.R. § 1316.75 (1999). The DEA is also required to send
notice to every party with an interest in the property. See 19
U.S.C.A. § 1607(a). A claimant who has received
constitutionally adequate notice of intent to forfeit then has
twenty days from the date of the first publication of the notice
of seizure to judicially contest the forfeiture by filing a claim
with the DEA and a cost bond, or a declaration of inability to
file a cost bond. See 19 U.S.C.A. § 1608 (West 1999); 21
C.F.R. §§ 1316.75-.76 (1999). If no claim is filed, an
administrative forfeiture occurs by default. See 19 U.S.C.A.
§ 1609 (West 1999); 21 C.F.R. § 1316.77 (1999).
A properly filed claim stops the administrative forfeiture
process and requires the seizing agency to refer the matter to
the United States Attorney to institute judicial forfeiture
proceedings. See 19 U.S.C.A. §§ 1608; 1610 (West 1999); 21
C.F.R. §§ 1316.76(b); 1316.78 (1999). The DEA is then
required to show probable cause for the forfeiture. See 19
U.S.C.§ 1615; United States v. $67,220.00 in U.S. Currency,
957 F.2d 280, 283 (6th Cir. 1992). Upon a showing of
probable cause, the burden of proof shifts to the claimant to
Nos. 98-4014/4036 United States v. Dusenbery 11
Like the Second Circuit, we think that inadequate notices
should be treated as voidable, not void, and that the proper
remedy is simply to restore the right which a timely Rule
41(e) notice would have conferred on the claimant: the right
to judicially contest the forfeiture and to put the Government
to its proofs under a probable cause standard. Thus, the
Government is not required to institute “new” forfeiture
proceedings, and the applicable statute of limitations, § 1621,
therefore has no bearing.
Rule 41(e) proceedings are equitable in nature if criminal
proceedings are no longer pending. See United States v.
Duncan, 918 F.2d 647, 654 (6th Cir. 1990); Marolf, 173 F.3d
at 1216. We fail to see the equity in allowing the claimant
more than he would have been accorded in the first place;
namely the fortuitous benefit of avoiding the forfeiture
process altogether. After all, this is not a situation where the
Government never bothered to send notices of forfeiture. Nor
can Dusenbery claim that he was completely blindsided,
because the property in question had obviously been out of his
possession since the date of seizure. Finally, a contrary
ruling, one similar to that of the Ninth and Tenth Circuits,
might encourage some claimants with borderline notices and
nothing to lose (presumably because they will not be able to
rebut the Government’s proofs) to sit on their Rule 41(e)
motions until the five-year statute of limitations has run. We
therefore reject the Ninth and Tenth Circuits’ approach, as
articulated in Marolf and Clymore. We affirm the district
court’s adoption of Boero and its decision to rule on the
merits of Dusenbery’s forfeitures.
III.
As indicated above, we have assumed that the
Government’s notices were constitutionally inadequate. We
conclude that the merits of the forfeiture were properly
considered, notwithstanding the intervening expiration of the
statute of limitations. Additionally, we adopt the district
court’s determination of the merits of the forfeiture. This

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10 United States v. Dusenbery Nos. 98-4014/4036
9In supporting its conclusion that inadequate notices should be
treated as void, the Marolf court remarked that the forfeiture statutes
“impose no duty on a defendant to prevent the government from losing its
rights through carelessness,” United States v. Marolf, 173 F.3d 1213,
1217 (9th Cir. 1999) (internal quotation marks omitted); and that statutes
of limitations historically have “represent[ed] a pervasive legislative
judgment that it is unjust to fail to put the adversary on notice to defend
within a specified period of time and that the right to be free of stale
claims in time comes to prevail over the right to prosecute them.” Id. at
1217-18 (internal quotation marks omitted).
administrative remedy, over five years after the date of the
initial seizure. The practical effect of the Boero court’s
reversal and remand for a determination on the merits of the
forfeiture was to treat the ineffective notice as voidable rather
than void, so that the statute of limitations was tolled.
Conversely, two other cases, one from the Ninth Circuit and
one from the Tenth Circuit, reject the Second Circuit’s
approach in Boero and hold that a forfeiture without adequate
notice is void, and if the statute of limitations has run against
the government, a decision on the merits of the forfeiture is
barred. See United States v. Marolf, 173 F.3d 1213, 1217-18
(9th Cir. 1999); Clymore v. United States, 164 F.3d 569, 574
(10th Cir. 1999). In Clymore, the Tenth Circuit held that
“[w]here obvious statute of limitations problems exist, we
think the offending forfeiture [i.e. inadequate notice] should
be vacated and the statute of limitations allowed to operate,
subject, of course, to any available government arguments
against it.” Clymore, 164 F.3d at 574. Following the
reasoning of Clymore, the Ninth Circuit held that, absent the
rare application of laches or equitable tolling principles,
courts may not ignore the statute of limitations in forfeiture
cases when an administrative forfeiture is invalidated on a
Rule 41(e) motion due to defective notice.9 See Marolf, 173
F.3d at 1217-18. See also United States v. $57,960.00 in
United States Currency, 58 F.Supp.2d 660, 1999 WL 566616
(D.S.C. July 28, 1999) (agreeing with Ninth and Tenth
Circuits).
Nos. 98-4014/4036 United States v. Dusenbery 7
7We have jurisdiction to entertain collateral due process attacks on
administrative forfeitures, including challenges to the adequacy of notice.
See United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995) (per
curiam); United States v. Woodall, 12 F.3d 791, 793 (8th Cir. 1993).
demonstrate that the property is his and not the proceeds of
drug transactions. The claimant may meet his burden by
showing that the property was not the proceeds of illegal drug
activities or that the claimant is an “innocent owner” and was
unaware of the proceeds’ criminal connection. See 19 U.S.C.
§ 1615; United States v. Certain Real Property 566
Hendrickson Blvd., 986 F.2d 990, 995 (6th Cir. 1993). If the
claimant fails in his burden, the government is entitled to a
judgment of forfeiture. See id.
On appeal Dusenbery argues that forfeiture is no longer
available because of the applicable statute of limitations.
That is, Dusenbery argues that the Government could not
reinstate forfeiture proceedings during the 1997 remand
because the factual basis for Dusenbery’s CCE charges was
more than five years old. He therefore contends that all his
property and funds should be returned, with interest.
In deciding Dusenbery’s claim under Rule 41(e)7, we will
assume that the notices of forfeiture were insufficient and
proceed to the forfeiture question: What is the proper remedy
for a due process violation in an administrative forfeiture
proceeding when the statute of limitations for filing a judicial
forfeiture action has expired? Few circuits have addressed
this issue, and those that have are divided.
In Boero v. DEA, 111 F.3d 301, 305-07 (2d Cir. 1997), the
Second Circuit resolved the problem of a defective notice and
an untimely claim outside the statute of limitations by
directing the trial court to resolve the dispute on the merits.
See id. at 305-07. There, the DEA administratively forfeited
$1799.46 on January 31, 1991. The money had been seized
from Boero when he was arrested on October 25, 1990 for
violations of federal narcotics laws. The DEA sent notices of
seizure to Boero’s home and to his presumed place of

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8 United States v. Dusenbery Nos. 98-4014/4036
incarceration, in accordance with 19 U.S.C. § 1607. The
DEA also published notice in USA Today pursuant to 21
C.F.R. § 1316.75. However, Boero never received the notices
because he had been transferred to a state prison.
On January 31, 1991, the DEA declared the property
administratively forfeited to the United States under 19
U.S.C. § 1609. Boero filed a civil complaint against the DEA
on April 13, 1994, and subsequently moved for summary
judgment, arguing that his property should be returned as
equitable relief for the failure of notice. The DEA conceded
inadequate notice, but argued that Boero’s motion should be
treated as a timely but unperfected administrative claim under
19 U.S.C. §§ 1603(b) and 1608. In other words, the DEA
argued that Boero was limited to his administrative claim and
could not recover the money in the district court. The district
court agreed with the DEA and held that the claimant’s
remedy was via administrative claims procedures. See id. at
303-04.
The Second Circuit reversed, holding that:
In Onwubiko v. United States, 969 F.2d 1392, 1398 (2d
Cir. 1992), we explained that an administrative forfeiture
ordinarily removes the subject matter of the action--the
property or res--from the district court, and thereby
deprives the court of jurisdiction to review administrative
decisions once the administrative process has begun. An
exception to this rule is when property is taken
accidentally, fraudulently, or improperly. In actions
asserting such a claim, the district court has jurisdiction
to correct the deficiency. Id. Boero’s complaint that his
property was taken improperly-- without proper notice--
correctly invoked district court jurisdiction. The court’s
findings concerning impropriety of the forfeiture gave the
court power to correct the deficiency. See id. The court,
however, did not correct the deficiency, and instead
allowed Boero to pursue an administrative remedy, over
five years from the date of the initial seizure, as if an
improper forfeiture had never occurred. (Ordinarily,
Nos. 98-4014/4036 United States v. Dusenbery 9
8The Boero court catalogued various approaches taken by other
circuits: The First and Eighth Circuits have ruled that when notice of
administrative forfeiture is inadequate, the district court must set
aside the forfeiture and either order return of the seized property
or direct the government to commence judicial forfeiture in
district court. See, e.g, United States v. Volanty, 79 F.3d 86,88
(8th Cir. 1996); United States v. Giraldo, 45 F.3d 509, 512 (1st
Cir. 1995); United States v. Woodall, 12 F.3d 791, 795 (8th Cir.
1993). The Federal Circuit has held that a district court can
excuse a property owner’s failure to comply with the statutory
requirements when notice in an administrative forfeiture
proceeding is inadequate. Litzenberger v. United States, 89 F.3d
818, 822 (Fed. Cir. 1996). The Ninth Circuit, upon ruling that
a district court has jurisdiction over due process challenges to
administrative proceedings under 28 U.S.C. § 1331, remanded
the case for an adjudication on the merits. Marshall Leasing,
893 F.2d at 1103. The Fifth Circuit, in Armendariz-Mata v.
DEA, 82 F.3d 679, 683 (5th Cir.), cert. denied, -- U.S. --, 117 S.
Ct. 317, 136 L.Ed.2d 232 (1996), having found notice in an
administrative forfeiture proceeding to be insufficient, directed
the district court to vacate the DEA’s administrative forfeiture
without providing further instructions or comment.
Boero v. DEA, 111 F.3d 301, 307 n.6 (2d Cir. 1997). None of these cases
address the effect of the running of the statute of limitations, however.
forfeiture proceedings under the customs laws must be
commenced within five years after the time when the
alleged offense was discovered. See 19 U.S.C. § 1621;
21 U.S.C. § 881(d)).
Id. at 304-05 (internal footnotes omitted). The Second Circuit
therefore concluded that Boero’s proper remedy was to
restore his right to seek a hearing in district court. See id. at
307.8 See also Kadonsky v. United States, 1998 WL 119531,
at *2-3 (N.D. Tex. March 6, 1998) (holding that the remedy
for a due process violation in a forfeiture proceeding where
the statute of limitations has run is a hearing on the merits of
the forfeiture question).
Although the Second Circuit in Boero did not directly
address the statute of limitations problem, it did expressly
note that the district court had allowed Boero to pursue an

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