Saturday, February 10, 2007

Burman v. U.S. (Maryland U.S.D.C.)(Approved for Publication)

Issued February 7, 2007—Memorandum and Order by Chief Judge Benson Everett Legg. Approved for publication.

Burman was convicted in a jury trial of conspiring to distribute cocaine and possession with intent to distribute cocaine. Burman then filed a motion seeking the return of property the government seized pursuant to a search warrant leading to his indictment and subsequent conviction.

Property purchased with the proceeds of drug trafficking is subject to forfeiture pursuant to 21 U.S.C. §881 and, by statute, the government must initiate a forfeiture case by giving notice to any interested party in addition to publishing notice in a publication of general circulation. The interested party has a specified time in which to file a claim and may either file a request for judicial forfeiture proceedings with the seizing agency or elect to remain in the administrative forum by filing a petition for remission or mitigation. If the interested person seeks the prior option, the agency must refer the request to the applicable United States Attorney, who then files a complaint for forfeiture in federal district court, per 18 U.S.C. §983(a)(3). If a person to whom notice was sent does nothing and the administrative tribunal declares the property forfeited, the district court, by statute, lacks subsequent jurisdiction over the property with one exception: if the claimant alleges the government failed to provide him with adequate notice and that he did not otherwise know of the forfeiture proceedings. If the court concludes that the claimant was adequately advised of the forfeiture proceedings, the court must dismiss the claim. However, if the court concludes that notice was lacking, the government must return the property and/or file a new forfeiture action.

Under 18 U.S.C. §983(e), an "interested party" may move to set aside a declaration of forfeiture if (i) the government failed to take reasonable steps to provide him with notice, and (ii) the moving party did not otherwise know or have reason to know of the forfeiture in time to file a timely claim. The Court places the burden on the government to show that it took "reasonable steps" to provide notice to the claimant. "Reasonable notice" requires that the government must (i) send a certified letter, return receipt requested, to the facility where the prisoner is housed, (ii) show that a prison official signed for the letter, and (iii) provide evidence that mail delivery procedures existed at that facility that were reasonably calculated to ensure that the notice, once addressed to the inmate, would still reach him upon arrival at the prison (and, indeed, would only be accepted were the inmate actually present). Notice sent to the inmate's relatives, lawyer or former residence is insufficient.

The DEA sent multiple Notices of Forfeiture to Burman addressed to several jails, to his mother, and to attorneys who had represented him, but there is no evidence that these notices ever reached Burman. The government presented no evidence that Burman was at the particular jails when the notices were delivered, that the persons who signed for the notices were prison officials, or that mail delivery procedures at the jails were reasonably calculated to ensure that the notices reached Burman. Burman, however, evidently knew the government was seeking forfeiture of some of his property because he mailed the DEA letters asking what was happening with certain items. The DEA treated these letters as requests for judicial forfeiture proceedings, but denied the requests either because they were untimely or because Burman failed to submit his claims under oath as required by the statute. The DEA mailed Burman a number of corrective notices advising that his claim must be sworn under oath and giving him 20 days to cure the defect. Except with respect to one item of property, Burman never filed a claim that met the formal requirements. There is, further, no direct evidence that any of the corrective notices ever reached Burman. Consequently, the Court granted, in part, Burman's request for return of some of the property seized and reserved judgment on the remaining property ordering the government provide further evidence and briefing.

The full opinion is available in PDF.

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