The opinion of the court was delivered by: IRMA E. GONZALEZ
The motion for summary judgment brought by the United States came on regularly for hearing on August 29, 1994, at 10:30 a.m., in Courtroom 11 of the above-entitled court, the Honorable Irma E. Gonzalez presiding. Attorney John F. Cherry appeared on behalf of plaintiff Johnny Quinones-Ruiz. Assistant United States Attorney Donald D. Clausen appeared on behalf of the United States.
On April 26, 1993, United States Customs Officers were performing exit border searches in southbound traffic near the Mexican border when they stopped three individuals in a 1983 Ford Thunderbird and questioned them regarding whether they were exporting over $ 10,000.00 from the United States. Plaintiff Johnny Quinones-Ruiz, a passenger in the vehicle, responded that he was not exporting over $ 10,000.00. The officers referred the car to secondary inspection and performed a search. During the search, officers found a paper bag containing $ 40,420.00 in currency wrapped in a plastic bag. They seized the currency. The officers arrested plaintiff and charged him with a violation of 31 U.S.C. § 5324(b), Failure to File Report, and 18 U.S.C. § 1001, False Statement.
In late August, 1993 plaintiff pleaded guilty to one count of 18 U.S.C. § 1001. On November 10, 1993 the court sentenced him to two years probation, including 60 days in a community confinement center and a $ 50.00 penalty assessment.
On May 4, 1993, pursuant to 19 U.S.C. § 1607,
the government mailed notices to plaintiff at the following addresses: 11426 Budlong Avenue #7, Los Angeles, California, 90249, which appeared on his driver's license; the Metropolitan Correctional Center ("MCC"), where plaintiff was detained; 14635 S. Westorn, Gardena, California, 90249; and 1440 El Segundo Boulevard, Hawthorne, California, 90250. The last two were addresses found in plaintiff's possession at the time of his arrest. The government also published a notice of seizure and intent to forfeit in the San Diego Daily Transcript for three weeks on June 8, 15 and 22, 1993.
Plaintiff contends he never received notice of the intended forfeiture, and has now sued to recover the $ 40,420.00. He filed a late petition for return of proceeds and claim of ownership with the U.S. Customs service in November, 1993. This claim was denied. On January 11, 1994 plaintiff filed this complaint for return of the money seized.
Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate 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 judgment as a matter of law." The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress and Co., 398 U.S. 144, 159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The burden then shifts to the nonmoving party to show that summary judgment is not appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To make such a showing, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Id. However, in considering this motion, the evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his or her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Plaintiff contends the administrative forfeiture is void because he did not receive adequate notice. Due process requires that notice be "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." Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950). Notice need not actually be received to meet this requirement, so long as it was reasonably calculated to notify the interested parties, considering the peculiarities of the particular case.
Here, the United States contends that it met the notice requirement of 19 U.S.C. § 1607 by sending four notices to plaintiff by mail and publishing notice for three weeks in the San Diego Daily Transcript. The published notices explained the procedures for filing a claim with Customs in order to stop the forfeiture, and stated the deadline for filing a claim.
Plaintiff, however, argues that the government did not meet due process requirements because it never sought to ascertain his current address, it did not personally serve him at MCC and he never received notice there, and he could not reasonably be expected to read the Daily Transcript, particularly because he is only marginally conversant in English. Plaintiff also contends notice was improper because the government did not send a notice to the attorney representing him in his criminal case. The court appointed counsel for plaintiff on May 4, 1993, the same date that notices were mailed.
The Court finds that the notice provided in this case was adequate, in that it was reasonably calculated, considering the circumstances, to apprise plaintiff of the forfeiture action. Although plaintiff claims that he never received notice, this in and of itself does not render the notice inadequate. See Cohen v. United States, 297 F.2d 760 (9th Cir. 1962).
The Customs Service reasonably expected that at least one of the four mailed notices would be effective. It is apparently the standard practice for the Customs Service to send notices to MCC with the appropriate booking number of the individual to whom the notice is sent. If the individual is no longer incarcerated at MCC, the notice is routinely returned as undeliverable. See Declaration of Ana Hinojosa. In this case, Customs never received a returned notice, so the agency appropriately assumed that notice had been effective.
The notice which the Customs Service sent to the address listed on plaintiff's driver's license was similarly not returned, although the other two notices were returned as undeliverable. The Customs Service therefore reasonably believed that plaintiff had received notice of the intended forfeiture. The Court also finds that the Customs Service was not required to notify plaintiff's counsel in his criminal case, because plaintiff did not have counsel until the day that the notices were sent, and because the Customs Service reasonably ...