Edward Krecioch v. United States of America, Drug Enforcement Administration, Unknown Agents of the…

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-3940
Edward Krecioch,
Plaintiff-Appellant,
v.
United States of America, Drug Enforcement
Administration, Unknown Agents of the Drug
Enforcement Administration and United States
Department of Justice,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 1121--James B. Zagel, Judge.
Argued April 21, 2000--Decided July 20, 2000
Before Bauer, Kanne and Evans, Circuit Judges.
Kanne, Circuit Judge. The Drug Enforcement
Administration ("DEA") claimed several
automobiles, $71,334 in cash and three handguns
from Edward Krecioch through administrative
forfeitures after he was arrested for drug
trafficking in 1992. Acting pursuant to 19 U.S.C.
sec. 1607, the DEA mailed written notices of the
administrative forfeitures by certified mail to
Krecioch’s residence. Two days later, Krecioch
pleaded guilty and his bond was revoked, sending
him to jail before the notices arrived at his
home. Krecioch filed a collateral attack on the
administrative forfeitures in district court and
argued that the DEA deprived him of due process
by failing to provide actual notice of the
pending proceedings when he was jailed. The
district court granted summary judgment for the
DEA, finding that the DEA discharged its due
process obligations. We agree with respect to all
the forfeitures except that of Krecioch’s
weapons.
I. History
The DEA monitored Krecioch and William Truhlar’s
cocaine trafficking operation for more than a
year before arresting Truhlar on July 8, 1992.
That day, in Krecioch’s presence, the DEA seized

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$2,150 in cash, a 1989 Lincoln limousine and a
1988 Chevrolet Blazer from the operation’s main
place of business, Billy T’s Limousine Service in
Palos Hills, Illinois. The DEA later that day
seized two kilograms of cocaine, marijuana,
assorted drug paraphernalia, three handguns and
$69,184 from Krecioch’s residence. The DEA
arrested Krecioch on July 13, 1992, and he was
released on $100,000 bond.
In August, the DEA initiated administrative
forfeiture actions against the seized property.
Finding sufficient connection under 21 U.S.C.
sec. 881 between the property and drug-related
crimes, the federal government exercised its
authority to seize "[a]ll moneys . . . furnished
or intended to be furnished by any person in
exchange for a controlled substance," "[a]ll . .
. vehicles . . . used, or are intended for use,
to transport, or in any manner to facilitate the
transportation, sale, receipt, possession, or
concealment" of a controlled substance and "any
firearm . . . used or intended to be used to
facilitate the transportation, sale, receipt,
possession, or concealment" of a controlled
substance. 21 U.S.C. sec. 881(4), (6), (11). Each
of the seized properties in this case was valued
at $500,000 or less, so 19 U.S.C. sec. 1607
permitted the government to opt for
administrative forfeiture instead of judicial
forfeiture proceedings in district court.
Although it authorizes the government to execute
forfeiture actions outside of court supervision,
19 U.S.C. sec. 1607 also requires that "[w]ritten
notice of seizure together with information on
the applicable procedures shall be sent to each
party who appears to have an interest in the
seized article." 19 U.S.C. sec. 1607. Any
potential claimant is then entitled to file for
remission or mitigation of the forfeitures under
19 U.S.C. sec. 1618, or file a claim in district
court under 19 U.S.C. sec. 1608 to contest the
forfeitures through judicial proceedings.
On August 10, 1992, the DEA sent by certified
mail to Krecioch’s home address written notices
of the forfeiture actions against the 1989
Lincoln limousine, 1988 Chevrolet Blazer and
$71,334 cash. His sister Camille Krecioch signed
the return receipts on August 14 and 15 but
apparently did not convey the notices to Krecioch
or inform him of the forfeiture proceedings. The
DEA also mailed the notices for the 1989 Lincoln
limousine and $2,150 cash to Krecioch’s business
address, where Truhlar’s wife signed the return
receipts. In addition, the DEA began publishing
the notices of forfeitures in the national
newspaper USA Today for three consecutive weeks
as required by 21 C.F.R. sec. 1316.75.

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On August 10, the day of the mailings, Krecioch
was free on bond and living at home. Krecioch had
been offered a plea bargain but never signed the
proffered plea agreement. It was not until his
hearing on August 12, 1992, that Krecioch agreed
to plead guilty to drug-trafficking and firearms
charges. The district court revoked bond, sending
him immediately to jail, and later sentenced
Krecioch to ten years imprisonment and five years
supervised release. On September 2, 1992, the DEA
seized a 1984 Chevrolet Corvette from Krecioch’s
residence and mailed written notice of the
seizure to Krecioch both at his residence and at
the Chicago Metropolitan Correctional Center
("MCC"), where he was incarcerated. In addition,
on September 8, 1992, the DEA sent written notice
for the forfeiture action against the weapons to
Krecioch’s home address, where his mother signed
the return receipt, but not to the MCC.
Krecioch did not file a claim under 19 U.S.C.
sec. 1608, which would have required the DEA to
refer the forfeiture actions to the United States
Attorney’s Office for judicial forfeiture
proceedings under 19 U.S.C. sec. 1603(b). As a
result, the DEA issued declarations of
administrative forfeiture and claimed title to
the seized property under 19 U.S.C. sec. 1609(b).
Five years later, Krecioch sued in district court
and mounted a collateral attack on the
administrative forfeitures, arguing that the
forfeitures were ineffective because the DEA had
failed to give him adequate notice required by
the Due Process Clause of the Fifth Amendment.
The district court granted summary judgment for
the government, and Krecioch now appeals.
II. Analysis
Krecioch argues that the DEA violated his due
process rights by failing to provide actual
notice of the administrative forfeitures.
Krecioch does not dispute that notice via
certified mail is typically sufficient for due
process purposes, see, e.g., Mennonite Bd. of
Missions v. Adams, 462 U.S. 791, 800 (1983), and
he does not challenge the notice, mailed to him
in jail, for the Corvette. Krecioch challenges
the constitutional adequacy of the written
notices sent to his residence regarding only the
seizures of the 1989 Lincoln limousine, 1988
Chevrolet Blazer, cash and weapons.
With respect to the notices for the two
automobiles and cash, Krecioch argues the DEA
knew or should have known on August 10, 1992,
when it mailed the written notices, that the
notices would arrive at his residence after he
had been jailed and that he would not receive
them. Krecioch contends that the DEA officer who

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appeared at his hearing on August 12 should have
served him at the hearing. With respect to the
notice for the weapons, Krecioch asserts that the
written notice mailed to his residence was
inadequate because the DEA knew at the time of
mailing on September 8, 1992, that he had been
jailed and would not receive it. Krecioch
contends that the DEA notices of the forfeiture
actions against his property thereby violated due
process and the forfeitures should be overturned.
Although the DEA executed the forfeitures through
administrative rather than judicial proceedings,
federal courts possess jurisdiction to review
collateral due process attacks on administrative
forfeitures, see Weng v. United States, 137 F.3d
709, 713 (2d Cir. 1998); United States v.
Woodall, 12 F.3d 791, 793 (8th Cir. 1993), and we
review de novo the district court’s grant of
summary judgment. See Sarit v. U.S. Drug
Enforcement Admin., 987 F.2d 10, 13 (1st Cir.
1993).
The Supreme Court announced the standard for
due process in Mullane v. Central Hanover Bank &
Trust, Co., 339 U.S. 306, 314 (1950): "An
elementary and fundamental requirement of due
process in any proceeding which is to be accorded
finality 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."
The operative question is whether notice was
adequate at the time that the notice was sent,
and due process is not satisfied "if the
notifying party knew or had reason to know that
notice would be ineffective." Sarit, 987 F.2d at
14. However, due process does not require actual
notice, so long as the government "acted
reasonably in selecting means likely to inform
the persons affected." Weigner v. City of New
York, 852 F.2d 646, 649 (2d Cir. 1988).
Notice of forfeiture by mail to the claimant’s
residence is inadequate if the government knew
that the claimant would not receive it. See Small
v. United States, 136 F.3d 1334, 1338 (D.C. Cir.
1998); United States v. Rodgers, 108 F.3d 1247,
1252-54 (10th Cir. 1997); Woodall, 12 F.3d at
794; cf. Schluga v. City of Milwaukee, 101 F.3d
60, 63 (7th Cir. 1996). When the government mails
a notice to an address at which it knows the
claimant not to be, the notice typically violates
due process because it is not reasonably
calculated to apprise the claimant of the action.
See United States v. Giraldo, 45 F.3d 509, 511
(1st Cir. 1995); Woodall, 12 F.3d at 794. If it
does nothing more, the government knows for fact
that the claimant will never receive notice. When
the government does not know or reasonably cannot
discover the claimant’s whereabouts, the

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government may satisfy due process with mere
publication of a forfeiture notice. See Mullane,
339 U.S. at 317-19. However, when the claimant is
incarcerated or in government custody, the ease
of learning the claimant’s location makes it in
most cases "unreasonable for the forfeiting
agency to fail to ascertain the location of one
it knows to be in government custody." Weng, 137
F.3d at 714. Thus, the government violates due
process when it purposely mails notice of
forfeiture to the claimant’s residence knowing
that the claimant is incarcerated or in federal
custody. See Robinson v. Hanrahan, 409 U.S. 38,
40 (1972); Giraldo, 45 F.3d at 511; Torres v.
$36,256.80 U.S. Currency, 25 F.3d 1154, 1160-61
(2d Cir. 1994).
Krecioch was not incarcerated or in federal
custody until after the DEA mailed the forfeiture
notices for the cash and the two automobiles to
his home, and the DEA could not have known that
Krecioch would decide to plead guilty two days
after the mailings, see his bond revoked and
immediately be jailed in Chicago. All this was
uncertain at the time of mailing because Krecioch
had not consented to a plea agreement. The DEA
knew only that Krecioch was free on bond and
residing at the address to which the notices were
sent. There is no evidence that the DEA knew or
should have known at the time of mailing that
notice would be ineffective, and absent
exceptional circumstances, written notice of
forfeiture by certified mail to the claimant’s
residence satisfies due process even if the
claimant does not receive actual notice as a
result. See United States v. Clark, 84 F.3d 378,
381 (10th Cir. 1996); Sarit, 987 F.2d at 14-15.
However, notice for Krecioch’s weapons was
inadequate because the DEA mailed it to his
residence later, on September 8, when the DEA
knew that Krecioch was jailed at the MCC and no
longer living at his home address. On this basis,
we vacate summary judgment on Krecioch’s due
process claim for his weapons but affirm summary
judgment on his claims for the automobiles and
cash.
Krecioch cites United States v. Cupples, 112
F.3d 318, 320 (8th Cir. 1997), in which the
Eighth Circuit required actual notice when "the
government is prosecuting someone who is actively
contesting the criminal charges against him,
including a count of the indictment seeking
forfeiture." He insists that the DEA could have
easily effected actual notice by having the DEA
officer at his August 12 hearing give him actual
notice. We agree that this would have been
preferable for due process purposes, but due
process "does not, of course, require that
authorities use the best possible method of

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notification." Towers v. City of Chicago, 173
F.3d 619, 628 (7th Cir. 1999). Krecioch was
entitled only to notice "reasonably calculated,
under all the circumstances, to apprise" him of
the forfeiture actions. Mullane, 339 U.S. at 314.
To the degree that Cupples requires actual notice
even when the claimant is free and available at
his home address, we disagree because due process
requires only that the government reasonably
believed that notice would be likely to reach
Krecioch. See Schluga, 101 F.3d at 63. In the
absence of bad faith, the forfeiture notices sent
by certified mail on August 10 to his then-
current address, received by his family members
and combined with newspaper publication, were
sufficient to satisfy the Mullane standard for
notice.
III. Conclusion
For the foregoing reasons, we Affirm summary
judgment with respect to the forfeiture of the
automobiles and cash but Reverse summary judgment
with respect to the three weapons seized from
Krecioch’s home on July 8, 1992, and Remand for
further proceedings.

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