Marcial L. Chairez v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3169
M ARCIAL L. C HAIREZ ,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02 C 0456—Barbara B. Crabb, Chief Judge.
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A RGUED N OVEMBER 12, 2003—D ECIDED J ANUARY 27, 2004
____________
Before B AUER , M ANION , and R OVNER , Circuit Judges.
M ANION , Circuit Judge. In October 2000 Marcial Chairez
was convicted of distributing cocaine, 21 U.S.C. § 841(a)(1),
and carrying a firearm during and in relation to a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A). In August 2002
Chairez filed a post-conviction motion, ostensibly under
Fed. R. Crim. P. 41(g) (formerly Rule 41(e)), seeking the
return of money that was seized by Drug Enforcement
Agency (“DEA”) agents and later forfeited administratively
to the United States. The district court correctly construed
the motion as initiating a civil proceeding, see United States
v. Duke, 229 F.3d 627, 629 (7th Cir. 2000); United States v.

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2 No. 02-3169
Solis, 108 F.3d 722, (7th Cir. 1997) (post-conviction Rule 41(e)
motion treated as civil equitable proceeding for return of
property). It then denied Chairez’s request, concluding that
he had failed to contest the forfeiture in a timely manner
despite having been given notice that complied with due
process. We modify the judgment to clarify that the matter
was dismissed for lack of subject matter jurisdiction and, as
modified, affirm.
I.
In May 2000, DEA agents were executing a search warrant
involving drugs at the residence of Marcial Chairez when
they seized $1420 from the purse of Rosalba Romero-
Chairez. Two months after the seizure, DEA counsel began
administrative forfeiture proceedings by mailing written
notice of the impending forfeiture and an explanation of the
procedures. See 21 U.S.C. § 881(a)(6) (subjecting to forfeiture
“[a]ll moneys . . . furnished or intended to be furnished by
any person in exchange for a controlled substance or listed
chemical in violation of this subchapter, all proceeds
traceable to such an exchange, and all moneys . . . used or
intended to be used to facilitate any violation of this
subchapter”); id. § 881(d) (applying procedures used for
judicial and summary administrative forfeiture procedures
under customs law to controlled substances forfeitures); 19
U.S.C. §§ 1607-1609 (detailing summary administrative
forfeiture procedures, including notice requirements). At the
time, Chairez was in jail in Dane County, Wisconsin,
awaiting trial on federal charges, and the DEA sent notice to
him there by certified mail. A jail staff member named Carol
Rice signed for Chairez’s letter. The DEA also sent three
copies of the notice by certified mail to Chairez’s home
address in Curtiss, Wisconsin, and Rosalba Romero-Chairez

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No. 02-3169 3
1 Rosalba Romero-Chairez, whose purse contained the money
seized, apparently had actual notice of the forfeiture proceedings,
but did not file a claim. That failure does not affect Chairez’s due
process challenge to his certified mail notice, which is the only
issue before this court.
signed for the delivery of all three. 1 Notice of the seizure
was also published in The Wall Street Journal for three
successive weeks. Chairez did not file a claim for the
money, so the DEA’s declaration of forfeiture automatically
vested title in the United States. 19 U.S.C. § 1609(b); see also
Linarez v. United States Dep’t of Justice, 2 F.3d 208, 210 (7th
Cir. 1993). Because Chairez never filed a claim for the
money before the forfeiture, the district court’s jurisdiction
in this action was limited; the court could not inquire into
the propriety of the forfeiture but could decide only
whether the notice procedures complied with due process.
See Kreicioch v. United States, 221 F.3d 976, 980 (7th Cir.
2000); Linarez, 2 F.3d at 213. On the limited question of
notice, our review is de novo. Garcia v. Meza, 235 F.3d 287,
290 (7th Cir. 2000).
II.
Chairez argues that the notice given did not comply with
due process. He correctly identifies Dusenbery v. United
States, 534 U.S. 161 (2002), as the relevant authority. In that
case the Supreme Court specifically considered what the
government must do to notify an incarcerated person about
administrative forfeiture proceedings. There the FBI had
sent notice by certified mail to Dusenbery at FCI Milan
where he was incarcerated. Id. After prison staff signed to
verify receipt, the mail went through the prison’s internal
mail delivery system, which included a mail room and a
logbook to track the mail as it moved through the system.

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4 No. 02-3169
Because the logbook did not document the final stage of
delivery to inmates, however, the government could not
prove that Dusenbery actually received notice. The Supreme
Court held that due process does not require proof of actual
notice. Due process requires only that notice be “reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action.” Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); Kreicioch,
221 F.3d at 979. Under that standard, the Court concluded
the government had afforded Dusenbery adequate notice by
sending it to him at the prison.
In this case, Chairez seeks to focus our attention on how
the Dane County Jail’s internal mail delivery procedures
differ from the internal mail delivery procedures at FCI
Milan. He contends that because mail at the Dane County
Jail changes hands more and because there is no similar
tracking system in place, the government cannot prove that
it sent notice reasonably calculated to reach him. The
government counters that Dane County’s internal proce-
dures are not significantly different from those at FCI Milan.
But we see no reason to enter into this debate because we
do not read Dusenbery to require federal agencies seeking
administrative forfeiture—or courts, if the forfeiture is later
challenged—to inquire into the details of internal mail
delivery systems of jails and prisons. Such a requirement
would be burdensome and impractical given that every
facility handles mail differently. Also, especially in the case
of state and local facilities, the added burden would not
carry any benefits because it is unlikely that federal agents
could affect the way individual facilities handle their mail.
Beyond certified delivery to the jail or prison, short of actual
notice there is no standard that could universally apply to
institutions that vary in size, population, administration,

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No. 02-3169 5
and staff supervision. Because Dusenbery does not require
actual notice via acknowledged receipt by the prisoner, the
certified delivery and acceptance of the notice of forfeiture
by authorized jail personnel reasonably apprised Chairez of
the pendency of the forfeiture action. The government
published notice in a newspaper of general circulation, sent
certified mail to the incarcerated party’s last known address,
sent notice by certified mail to the prison where he was
incarcerated, and produced the signed receipt showing that
the notice arrived at the jail. Service by certified mail has
long been considered an acceptable means to provide notice.
See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 796 n.3
(1983) (citing Hess v. Pawloski, 274 U.S. 352 (1927) (approv-
ing registered mail)), and there is no evidence in this case
that the DEA knew of any problems with the jail’s certified
mail delivery system. See Garcia v. Meza, 235 F.3d 287, 290
(7th Cir. 2000).
III.
Because Chairez was afforded adequate notice of the
administrative forfeiture action, the district court lacked
subject matter jurisdiction to consider his claim to the prop-
erty. Accordingly, we modify the judgment of the district
court to reflect a dismissal based on lack of subject matter
jurisdiction and A FFIRM the modified judgment.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-27-04

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