No. 00-6567 

In the Supreme Court of the United States 

LARRY DEAN DUSENBERY, PETITIONER 

v. 

UNITED STATES OF AMERICA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 

MICHAEL CHERTOFF 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

JEFFREY P. MINEAR 

Assistant to the Solicitor 

General 

WILLIAM C. BROWN 

Attorney 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the United States satisfied the notice 
requirements of the Due Process Clause by sending a 
federal prisoner notice of an administrative forfeiture 
proceeding by certified mail addressed to the prisoner 
at the prison where he was incarcerated. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 3 

Summary of argument .................................................................. 
10 

Argument: 

The United States provides a prisoner with ade- 
quate notice of an administrative forfeiture proceeding 

by sending written notice of the proceeding by 

certified mail addressed to the prisoner at the prison 

where he is incarcerated ...................................................... 

12 

A. The Due Process Clause requires notice reason- 
ably calculated, under the circumstances, to 

apprise a claimant of the forfeiture proceeding ........ 

14 

B. The government’s practice of sending a prison 

inmate written notice of forfeiture proceedings 

by certified mail addressed to the prison where 

the inmate is incarcerated is a reasonable means 

for informing the inmate of the proceeding ............... 

15 

C. Petitioner’s conjecture that prisons receive 

inmate mail, but do not deliver it to inmates, is 

unfounded ......................................................................... 21 

D. Petitioner’s proposed rule that the government 

must prove actual receipt of notice finds no sup- 
port in this Court’s decisions and is not warranted 

by petitioner’s policy justifications .............................. 
25 

E. Petitioner is mistaken in claiming that inade- 
quate notice would render a forfeiture “void” 

and entitle him to return of forfeited prop- 
erty .................................................................................... 34 

Conclusion ....................................................................................... 38 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

Boero v. DEA, 111 F.3d 301 (2d Cir. 1997) ....................... 

35 

City of New York v. New York, New Haven & 

Hartford R.R., 344 U.S. 293 (1953) .................................... 

11, 17 

Clymore v. United States: 

164 F.3d 569 (10th Cir. 1999) ............................................... 

36 

245 F.3d 1195 (10th Cir. 2001) ............................................. 

36 

Covey v. Town of Somers, 351 U.S. 141 (1956) ................. 

17 

Estate of Pope, In re, 808 P.2d 640 (Okla. 1990) ................. 

28 

Foehl v. United States, 238 F.3d 474 (3d Cir. 

2001) ......................................................................................... 36 

Greene v. Lindsey, 456 U.S. 444 (1982) .................... 

10, 11, 14, 

18, 20, 30 

Irwin v. Department of Veterans Affairs, 498 U.S. 
89 (1991) ................................................................................... 

37 

Krecioch v. United States, 221 F.3d 976 (7th Cir.), 

cert. denied, 121 S. Ct. 599 (2000) ....................................... 

13 

Mathews v. Eldridge, 424 U.S. 319 (1976) ................. 

11, 26, 27 

Medina v. California, 505 U.S. 437 (1992) ........................ 

26 

Mennonite Bd. of Missions v. Adams, 462 U.S. 791 

(1983) .................................................................................. passim 

Mullane v. Central Hanover Bank & Trust Co., 

339 U.S. 306 (1950) ............... 

10, 11, 13, 14, 15, 16, 20, 21, 26 

Procunier v. Martinez, 416 U.S. 396 (1974) ...................... 

30 

Robinson v. Hanrahan, 409 U.S. 38 (1972) ....................... 

25 

Schroeder v. City of New York, 371 U.S. 208 

(1962) ........................................................................................ 

11, 18 

Small v. United States, 136 F.3d 1334 (D.C. Cir. 

1998) ......................................................................................... 

4, 36 

Thornburgh v. Abbott, 490 U.S. 401 (1989) ....................... 

30 

Tulsa Prof ’l Collection Servs., Inc. v. Pope, 485 

U.S. 478 (1988) .................................... 10, 14, 15, 19, 20, 27-28, 32 

V 

Cases—Continued: Page 

United States v. Clark, 84 F.3d 378 (10th Cir. 

1996) ......................................................................................... 13, 30 

United States v. Dusenbery: 

No. 94-3804, 1996 WL 306517, 89 F.3d 836 (6th Cir), 

cert. denied, 519 U.S. 956 (1996) .................................... 

7 

201 F.3d 763 (6th Cir.), cert. denied, 121 S. Ct. 301 

(2000) ............................................................................. 

8, 35-36 

United States v. Five Thousand Dollars in U.S. 

Currency, 184 F.3d 958 (8th Cir. 1999).............................. 

13, 31 

United States v. James Daniel Good Real Prop., 

510 U.S. 43 (1993) ................................................................... 

14 

United States v. Minor, 228 F.3d 352 (4th Cir. 

2000) .......................................................................... 

13, 20, 32, 36 

United States v. One Toshiba Color Television, 

213 F.3d 147 (3d Cir. 2000) ............. 

13, 20, 22, 23, 30, 32, 36 

United States v. Real Prop. (Lido Motel), 135 F.3d 

1312 (9th Cir. 1998) ................................................................ 

13, 30 

Walker v. City of Hutchinson, 352 U.S. 112 

(1956) ........................................................................................ 

11, 17 

Weigner v. City of New York, 852 F.2d 646 (2d Cir. 

1988), cert. denied, 488 U.S. 1005 (1989) ....................... 

20, 30 

Weng v. United States, 137 F.3d 709 (2d Cir. 

1998) ......................................................................................... 13, 31 

Whiting v. United States, 231 F.3d 70 (1st Cir. 

2000) ............................................................. 

13, 16, 17, 21, 23, 30 

Constitution, statutes, regulations and rules: 

U.S. Const. Amend. V (Due Process Clause) .............. 

2, 10, 12, 

13, 14, 26, 29, 34 
Civil Asset Forfeiture Reform Act of 2000, Pub. L. 

No. 106-185, 114 Stat. 202 (to be codified at 18 U.S.C. 

981 et seq (2000)) ............................................................ 

5, 12, 37 

§ 2, 114 Stat. 202 (18 U.S.C. 983(a)(1)(A)(i) 

(2000)) ............................................................................ 5 

§ 2, 114 Stat. 204 (18 U.S.C. 983(a)(2)(B) (2000)) ......... 

5 

§ 2, 114 Stat. 207 (18 U.S.C. 983(e)(1) (2000)) ............. 37 

VI 

Statutes, regulations and rules—Continued: 
Page 

§ 2, 114 Stat. 208 (18 U.S.C. 983(e)(2)(A) (2000)) ........ 

37 

§ 21, 114 Stat. 225 .............................................................. 

5 

19 U.S.C. 1600 et seq. ............................................................. 

4 

19 U.S.C. 1607 (1994 & Supp. V 1999) ............................... 

3 

19 U.S.C. 1607(a) (1988) ........................................................ 

3, 4, 5 

19 U.S.C. 1607(a) (1994 & Supp. V 1999) ........................... 

4, 37 

19 U.S.C. 1608 ........................................................................ 

4 

19 U.S.C. 1609 .................................................................... 

4-5, 37 

19 U.S.C. 1621 ........................................................................ 

34 

21 U.S.C. 848 .......................................................................... 

7 

21 U.S.C. 881 (1988) ............................................................... 

2 

21 U.S.C. 881 (1994 & Supp. V 1999) .................................. 

3 

21 U.S.C. 881(a) (1994 & Supp. V 1999) ............................. 

3, 4 

21 U.S.C. 881(a)(6) (1988) ..................................................... 

2 

21 U.S.C. 881(a)(6) ................................................................. 

5, 7 

21 U.S.C. 881(d) ..................................................................... 

2, 3, 4 

21 C.F.R: 

Sections 1316.71 et seq. ......................................................... 

5 

Section 1316.75(a) .................................................................. 

4 

28 C.F.R. 540.12(c) .................................................................... 

29 

Fed. R. Civ. P: 

Rule 4(d) .................................................................................. 

26 

Rule 4(e) .................................................................................. 

26 

Fed. R. Crim. P.: 

Rule 41(e) ................................................................................ 

8, 9 

Rule 54(b)(5) ........................................................................... 

8 

Miscellaneous: 

Bureau of Justice Statistics, Bulletin: Prisoners in 

1999 (8/00 NCJ 183476) ......................................................... 

23 

BOP Operations Memorandum 035-99 (5800) (July 19, 
1999) ......................................................................................... 24 

BOP Program Statement 5800.10 (Nov. 3, 1995) ................ 

23 

Section 5800.10.305 ................................................................ 

29 

Section 5800.10.409 ................................................................ 
24, 29 

Section 5800.10.409A ............................................................. 24 

In the Supreme Court of the United States 

No. 00-6567 

LARRY DEAN DUSENBERY, PETITIONER 

v. 

UNITED STATES OF AMERICA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

OPINIONS BELOW 

The opinion of the court of appeals (J.A. 67-71) is 
reported at 223 F.3d 422. The order of the district 
court (J.A. 55-66) is reported at 34 F. Supp. 2d 602. A 
prior opinion of the court of appeals (J.A. 31-35) is 
unpublished, but the decision is noted at 97 F.3d 1451 
(Table). 

JURISDICTION 

The judgment of the court of appeals was entered on 
July 10, 2000. A petition for rehearing was denied on 
August 25, 2000. The petition for a writ of certiorari 
was filed on October 16, 2000, and was granted on 
February 26, 2001. 121 S. Ct. 1186 (2001). The juris- 
diction of this Court rests on 28 U.S.C. 1254(1). 

(1) 

2 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

The Fifth Amendment to the United States Consti- 
tution states: “No person shall be * * * deprived of 
life, liberty, or property, without due process of law.” 

Title 21, United States Code, Section 881 (1988), 
provided in relevant part at the time of this dispute: 

(a) Subject property 

The following shall be subject to forfeiture to the 
United States and no property right shall exist in 
them: 

* * * * * 

(6) All moneys, negotiable instruments, securi- 
ties, or other things of value furnished or intended 
to be furnished by any person in exchange for a 
controlled substance in violation of this subchapter, 
all proceeds traceable to such an exchange, and all 
moneys, negotiable instruments, and securities used 
or intended to be used to facilitate any violation of 
this subchapter. 

* * * * * 

(d) Other laws and proceedings applicable 

The provisions of law relating to the seizure, sum- 
mary and judicial forfeiture, and condemnation of 
property for violation of the customs laws * * * 
shall apply to seizures and forfeitures incurred, or 
alleged to have been incurred, under any of the 
provisions of this subchapter, insofar as applicable 
and not inconsistent with the provisions hereof. 

3 

Title 19, United States Code, Section 1607(a) (1988), 
provided in relevant part at the time of this dispute: 

If– (1) the value of such seized vessel, vehicle, 
aircraft, merchandise, or baggage does not exceed 
$100,000; * * * the appropriate customs officer 
shall cause a notice of the seizure of such articles 
and the intention to forfeit and sell or otherwise 
dispose of the same according to law to be published 
for at least three successive weeks in such manner 
as the Secretary of the Treasury may direct. 
Written 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. 

STATEMENT 

The United States may seize and subject to forfeiture 
money and other property obtained through, or used to 
facilitate, violation of the federal controlled substance 
laws. See 21 U.S.C. 881(a) (1994 & Supp. V 1999). After 
petitioner’s conviction on a federal drug charge, the 
government issued notice, in accordance with 21 U.S.C. 
881(d) and the notice requirements of 19 U.S.C. 1607 
(1994 & Supp. V 1999), that it intended to initiate ad- 
ministrative forfeiture of $21,939 in cash seized at the 
time of petitioner’s arrest. Following the forfeiture, 
petitioner brought suit seeking return of the cash on 
the ground that he did not receive actual notice of the 
forfeiture proceeding. The district court granted the 
government’s motion for summary judgment, J.A. 55- 
66, and the court of appeals affirmed, J.A. 67-71. 

1. Section 881 of Title 21, United States Code, 
authorizes the United States to seek civil forfeiture of 
funds that are the proceeds of, or are used to facilitate, 

4 

unlawful transactions in controlled substances. See 21 
U.S.C. 881(a) (1994 & Supp. V 1999). Section 881(d) fur- 
ther provides that the government may proceed 
through the forfeiture procedures set out in the 
customs laws. 21 U.S.C. 881(d). Those laws, which are 
found in 19 U.S.C. 1600 et seq., authorize the govern- 
ment to conduct administrative forfeitures. See 19 
U.S.C. 1607(a) (1994 & Supp. V. 1999). The adminis- 
trative forfeiture process allows the government to 
determine whether property in its custody is unclaimed 
and, if it is, to take ownership without unnecessary 
judicial forfeiture proceedings. See Small v. United 
States, 136 F.3d 1334, 1335 (D.C. Cir. 1998).1 

Congress has provided that notice of a proposed 
administrative forfeiture “be sent to each party who ap- 
pears to have an interest in the seized article” and also 
that notice be published, as provided by regulation, for 
at least three successive weeks. 19 U.S.C. 1607(a) (1994 
& Supp. V. 1999). See 21 C.F.R. 1316.75(a) (requiring 
publication “in a newspaper of general circulation in the 
judicial district in which the processing for forfeiture is 
brought”). At the time of the forfeiture at issue in this 
case, claimants had a period of 20 days from the date of 
first publication of the notice in which to file a claim. 19 
U.S.C. 1608. If a claim was filed within the prescribed 
period, the government was entitled to seek forfeiture 
of the property only through judicial proceedings. Ibid. 
If no claim was filed within the prescribed period, the 
government could declare the property forfeited. 19 

1 At the time of the forfeiture at issue here, property valued 
at $100,000 or less was subject to administrative forfeiture. 19 
U.S.C. 1607(a) (1988). Under current law, property valued at 
$500,000 or less is subject to administrative forfeiture. 19 U.S.C. 
1607(a) (1994 & Supp. V. 1999). 

5 

U.S.C. 1609. That general statutory framework remains 
in place. See 21 C.F.R. 1316.71 et seq.2 

2. In April 1986, petitioner was arrested on drug and 
possession of firearms charges at his residence near 
Cleveland, Ohio. J.A. 1, 32, 56. He pleaded guilty to a 
drug charge and, on July 15, 1986, was sentenced to a 
term of 12 years’ imprisonment, to be followed by a six- 
year term of special parole. J.A. 1-2. During a search of 
petitioner’s residence at the time of his arrest, law 
enforcement agents seized $21,939 in cash, as well as 
drugs, drug paraphernalia, firearms, an automobile, and 
other property. See J.A. 32-33; Dist. Ct. Mem. Op. App. 
1 (Oct. 5, 1995) (R. 218-223) (inventory). 

In November 1988, the Federal Bureau of Investi- 
gation (FBI) initiated administrative forfeiture 
proceedings against the $21,939, pursuant to 21 U.S.C. 
881(a)(6). The FBI provided notice of the proposed 
forfeiture in accordance with 19 U.S.C. 1607(a) (1988), 
as in effect at that time. The FBI placed the required 
three-week publication in a major Cleveland 

2 Congress modified the procedures applicable to civil for- 
feiture proceedings through the Civil Asset Forfeiture Reform Act 
of 2000 (CAFRA), Pub. L. No. 106-185, 114 Stat. 202, to be codified 
at 18 U.S.C. 981 et seq. (2000). The changes enacted in the CAFRA 
apply only to forfeiture proceedings commenced on or after August 
23, 2000. See Pub. L. No. 106-185, § 21, 114 Stat. 225. Among 
other changes, the CAFRA lengthens the period within which a 
claim may be filed. See 18 U.S.C. 983(a)(2)(B) (2000). The new 
legislation also directs that “notice shall be sent in a manner to 
achieve proper notice as soon as practicable,” see 18 U.S.C. 
983(a)(1)(A)(i) (2000). While the CAFRA does not expressly pre- 
scribe any particular form or manner of providing notice, the 
CAFRA does contemplate that notice may be provided by letters 
mailed to potential claimants, see 18 U.S.C. 983(a)(2)(B) (2000) 
(providing that a time limit for filing claims runs the date a 
“personal notice letter” is mailed). 

6 

newspaper, the Plain Dealer, during November and 
December 1988. J.A. 24-30. On November 7, 1988, the 
FBI additionally sent written notice of the forfeiture 
action by certified mail, return receipt requested, to 
petitioner. See J.A. 18-20. The FBI mailed the written 
notice to petitioner at the Federal Correctional 
Institution (FCI) in Milan, Michigan, where petitioner 
was then incarcerated as a result of his drug conviction. 
J.A. 21. That notice set out the basis for the forfeiture, 
explained the procedure for contesting the forfeiture of 
the funds, and specified that any claim to the property 
must be filed by December 19, 1988, six weeks from the 
date of the letter. See J.A. 18-21.3 

At the time that the FBI sent the forfeiture notice to 
the Milan FCI, the prison had in place standard prac- 
tices for handling inmate mail. See J.A. 36-37. The FCI 
sent mail room employees to the City of Milan post 
office to pick up mail for the prison, including mail 
addressed to prisoners. J.A. 36. While at the post 
office, the employees signed return receipts for certi- 
fied mail, including certified mail addressed to inmates, 
and they then brought the mail to the Milan FCI mail 
room. Ibid. At the prison mail room, the prison 
employees recorded all certified mail in a mail room log 
book. J.A. 37. An employee assigned to the inmate’s 
housing unit then delivered the mail to the inmate. 
Ibid. Before removing certified mail from the mail 
room, the employee signed the log book to acknowledge 

3 The FBI also mailed the written notice to two other ad- 
dresses, including petitioner’s residence at the time of his arrest. 
J.A. 22-23. The Postal Service returned one of the latter two no- 
tices as unclaimed, while the receipt for the other was returned 
bearing the signature “Edward F. Clouse.” See ibid. 

7 

receipt of the individual piece of certified mail. Ibid. 
See J.A. 46-54, 60 n.6.4 

In the case of the FBI forfeiture notice sent to peti- 
tioner at the Milan FCI, Inmate Systems Officer James 
Lawson, a mailroom employee, signed the return 
receipt at the Milan post office. J.A. 36, 49-50. Lawson, 
who submitted an affidavit and testified by deposition 
in this case, identified his signature on the return re- 
ceipt, and he described the Milan FCI’s procedure for 
recording and delivering certified mail. J.A. 36-38, 46- 

53. By the time of Lawson’s 1997 deposition, the mail 
room log book pertaining to the delivery of the 1988 
forfeiture notice no longer existed. J.A. 37, 51-52, 60 n.6 
(noting that under prison policy, the log books were 
generally destroyed after one year). Lawson attested, 
however, that, “pursuant to the business practices of 
FCI Milan [the 1988 forfeiture notice for the currency] 
should have been received by the inmate.” J.A. 37, 52. 
Petitioner did not respond to the forfeiture notice. 
On January 27, 1989, in accordance with 21 U.S.C. 
881(a)(6), the currency was declared administratively 
forfeited to the government. See J.A. 15.5 

4 Petitioner raised the question in the district court proceed- 
ings whether an additional log book was maintained to record the 
final delivery of the certified mail to the inmate, but neither 
petitioner nor the government introduced evidence on that matter. 
See J.A. 52. 

5 During the time that petitioner was imprisoned, he con- 
tinued to manage a drug distribution network. That conduct 
resulted in a separate conviction in 1994 of engaging in a con- 
tinuing criminal enterprise, in violation of 21 U.S.C. 848, and in the 
forfeiture of additional property. See United States v. Dusenbery, 
No. 94-3804, 1996 WL 306517, 89 F.3d 836 (Table) (6th Cir.) 
(unpublished decision affirming petitioner’s continuing criminal 
enterprise conviction), cert. denied, 519 U.S. 956 (1996). The court 
of appeals later rejected petitioner’s challenge to the validity of the 

8 

3. On November 12, 1993—more than six years after 
the FBI seized the currency and almost five years after 
the declaration of forfeiture—petitioner sought return 
of the cash and other property seized at the time of his 
1986 arrest. Petitioner sought relief under Rule 41(e) of 
Federal Rules of Criminal Procedure, which provides in 
relevant part: 

A person aggrieved by an unlawful search and 
seizure or by the deprivation of property may move 
the district court * * * 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). The court determined through 
briefing by the parties that the FBI had initiated 
forfeiture proceedings, that the defendant had failed to 
respond to the notice of forfeiture, and that the cash at 
issue in this case had been administratively forfeited. 
See Dist. Ct. Mem. Op. 1-9 (Oct. 5, 1995) (R. 207-215). 

After ascertaining those facts, the district court 
denied petitioner’s motion on jurisdictional grounds. 
See Dist. Ct. Mem. Op. 9-11 (R. 215-217). The court 
ruled that Rule 41(e) does not confer authority to re- 
solve whether a claimant received adequate notice of a 
civil forfeiture. Id. at 9-10 (R. 215-216) (citing Fed. R. 
Crim. P. 54(b)(5) (stating that the Federal Rules of 
Criminal Procedure “are not applicable to * * * civil 
forfeiture of property for violation of a statute of the 
United States”)). 

Petitioner appealed, and the court of appeals vacated 
the district court’s order and remanded for further 

forfeitures associated with that 1994 conviction, and this Court 
denied review. United States v. Dusenbery, 201 F.3d 763 (6th 
Cir.), cert. denied, 121 S. Ct. 301 (2000). 

9 

proceedings. J.A. 31-35. The court of appeals agreed 
that petitioner could not pursue his claim under Rule 
41(e), but it concluded that the district court should 
have allowed petitioner to go forward with his action by 
construing petitioner’s Rule 41(e) motion as a civil 
complaint seeking equitable relief. J.A. 32. 

4. On remand, the district court allowed petitioner 
to conduct discovery and ultimately granted the gov- 
ernment’s motion for summary judgment. J.A. 55-66. 
The district court concluded that the government had 
provided petitioner with sufficient notice of the for- 
feiture proceeding for the $21,939 by sending notice by 
certified mail to petitioner at the Milan FCI where he 
was incarcerated. J.A. 59-62. The district court speci- 
fically credited the affidavit and deposition of James 
Lawson, the Milan FCI mail room employee who had 
signed the return receipt for the forfeiture notice and 
who had described the procedure at the Milan FCI for 
delivery of certified mail to inmates. J.A. 60-61.6 

5. The court of appeals affirmed the district court’s 
judgment. J.A. 67-71. The court agreed with the dis- 
trict court that there was no genuine issue that the 
government had mailed the forfeiture notice respecting 
the cash to petitioner at the Milan FCI, that a prison 
employee had signed the return receipt, and that the 
prison had a process for forwarding such mail to the 
inmate. J.A. 70. The court rejected petitioner’s con- 
tention that the government was required “to show 

6 The district court rejected petitioner’s argument that notice 
was defective because the address on the notice mistakenly speci- 
fied P.O. Box 100 for the Milan FCI, rather than P.O. Box 1000. As 
the court recognized, Lawson’s declaration and testimony identi- 
fying his signature on the return receipt established that the 
Postal Service had placed the notice in the correct post office box. 
J.A. 59-61. 

10 

that the mail actually reached an inmate in order to 
satisfy requirements of due process.” J.A. 70. Rather, 
the government must provide notice “reasonably 
calculated, under all the circumstances, to apprise [him] 
of the pendency of the action and afford [him] an 
opportunity to present [his] objections.” Ibid. (quoting 
Mullane v. Central Hanover Bank & Trust Co., 339 
U.S. 306, 314 (1950)). “Because adequate notice was 
given, [petitioner] is not entitled to relief on this claim.” 
Ibid.7 

SUMMARY OF ARGUMENT 

The United States satisfied the notice requirements 
of the Due Process Clause by sending petitioner writ- 
ten notice of the administrative forfeiture proceeding 
by certified mail addressed to the prison where he was 
incarcerated. That mode of providing notice satisfied 
due process because it provided notice “reasonably cal- 
culated” to apprise an interested party of the pro- 
ceedings. Mullane v. Central Hanover Bank & Trust 
Co., 339 U.S. 306 (1950). See also Tulsa Prof ’l Collec- 
tion Servs., Inc. v. Pope, 485 U.S. 478, 482 (1988); 
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795 
(1983); Greene v. Lindsey, 456 U.S. 444, 449-450 (1982). 

This Court has repeatedly stated, in a series of de- 
cisions spanning half a century and a wide variety of 
proceedings, that ordinary mail is a constitutionally 
adequate means of delivering notice to parties whose 
addresses are known. See, e.g., Tulsa Prof’l Collection 
Servs., 485 U.S. at 490 (probate creditor claims); 

7 The court of appeals also affirmed the district court’s rejec- 
tion of petitioner’s claims respecting other property seized at the 
time of petitioner’s 1986 arrest. J.A. 70-71. The disposition of 
petitioner’s claims regarding that property is not within the scope 
of the question before this Court. 

11 

Mennonite Bd. of Missions, 462 U.S. at 798 (tax sale of 
real property); Greene, 456 U.S. at 455 (forcible entry 
and detainer proceedings); Schroeder v. City of New 
York, 371 U.S. 208, 213 (1962) (condemnation of real 
property); Walker v. City of Hutchinson, 352 U.S. 112, 
116 (1956) (condemnation of real property); City of New 
York v. New York, New Haven & Hartford R.R., 344 
U.S. 293, 296-297 (1953) (bankruptcy creditor claims); 
Mullane, 339 U.S. at 317 (settlement of interests of 
beneficiaries in a common trust account). 

Petitioner does not contend that providing notice of a 
forfeiture proceeding by mail is generally impermis- 
sible. Rather, petitioner’s due process claim depends 
entirely on his conjecture that, while prisons receive 
mail on behalf of inmates, they do not reliably convey 
that mail to inmates. But petitioner has offered no 
evidence, apart from his assertion that he did not 
receive the government’s notice in this case, that prison 
mail systems are unreliable. And the BOP’s current 
mail procedures and the record in this case convincingly 
demonstrate that mailing a forfeiture notice to the 
inmate at his prison is “reasonably calculated” to reach 
the inmate. The courts below were therefore justified 
in rejecting petitioner’s due process claim. 

Petitioner’s proposed rule that the government must 
prove actual receipt of notice is contrary to this Court’s 
decisions, which have “adhered unwaiveringly to the 
principle” that due process is satisfied if the method of 
notice is “reasonably calculated” to reach the interested 
party. Mennonite Bd. of Missions, 462 U.S. at 797. The 
Mullane standard provides concrete and workable 
guidance in this case. There is no need or precedent for 
applying a balancing test under Mathews v. Eldridge, 
424 U.S. 319 (1976). In any event, application of the 
Mathews balancing test would not support a new due 

12 

process rule, uniquely applicable to prisoners, requiring 
proof of actual receipt. Petitioner’s proposed rule is not 
only unnecessary and anomalous, but it would require 
the Court to become directly involved in formulating 
prison policy respecting the handling of inmate mail. 

Petitioner is also mistaken in arguing that the sup- 
posedly inadequate notice here rendered the forfeiture 
“void” and entitled him to return of the forfeited pro- 
perty. His argument respecting the proper remedy if 
the Court finds the notice insufficient was not ad- 
dressed by the courts below, was not included in the 
question on which this Court granted the petition for 
writ of certiorari, and is not properly before the Court. 
Petitioner is incorrect on the merits as well—if a 
claimant did not receive proper notice, his remedy is 
restoration of the right to contest the forfeiture. In any 
event, Congress has prospectively resolved that issue 
through the Civil Asset Forfeiture Reform Act of 2000, 
Pub. L. No. 106-185, 114 Stat. 202, and there is conse- 
quently no need for the Court to decide the matter. 

ARGUMENT 

THE UNITED STATES PROVIDES A PRISONER 
WITH ADEQUATE NOTICE OF AN ADMINISTRA- 
TIVE FORFEITURE PROCEEDING BY SENDING 
WRITTEN NOTICE OF THE PROCEEDING BY 
CERTIFIED MAIL ADDRESSED TO THE PRISONER 
AT THE PRISON WHERE HE IS INCARCERATED 

Petitioner contends that the United States violated 
the Due Process Clause of the Fifth Amendment by 
failing to ensure that he actually received notice of the 
proceeding that the government had instituted to 
forfeit drug trafficking proceeds seized at the time of 
his arrest. The court of appeals correctly rejected that 

13 

contention. The notice requirements of the Due 
Process Clause are satisfied if the government provides 
notice “reasonably calculated, under all the circum- 
stances, to apprise interested parties of the pendency of 
the action and afford them an opportunity to present 
their objections.” Mullane v. Central Hanover Bank & 
Trust Co., 339 U.S. 306, 314 (1950). The government’s 
practice of sending a prison inmate notice by certified 
mail at the inmate’s prison address is sufficiently 
reliable to satisfy the Due Process Clause.8 

8 This issue has generated a conflict among the decisions of 
the courts of appeals. The First, Ninth, and Tenth Circuits, in 
addition to the court below in the present case, have ruled that 
sending notice by certified mail to an inmate at his place of 
incarceration is sufficient to meet the constitutional notice require- 
ment for forfeitures and have not required the government to 
prove that the inmate actually received the notice. See Whiting v. 
United States, 231 F.3d 70, 76-77 (1st Cir. 2000); United States v. 
Real Prop. (Lido Motel), 135 F.3d 1312, 1315-1316 (9th Cir. 1998); 
United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996); see also 
Krecioch v. United States, 221 F.3d 976, 980 (7th Cir.) (concession 
that notice mailed to inmate’s place of incarceration was sufficient), 
cert. denied, 121 S. Ct. 599 (2000). The Third Circuit has held that 
mailing to an inmate’s place of incarceration is sufficient if the 
government establishes that there are adequate delivery pro- 
cedures within the prison. United States v. One Toshiba Color 
Television, 213 F.3d 147 (2000) (en banc); see also United States v. 
Minor, 228 F.3d 352, 357-358 (4th Cir. 2000) (dicta endorsing 
holding in One Toshiba Color Television). The Second and Eighth 
Circuits have ruled that certified mail notice to a federal prisoner 
of a forfeiture proceeding is constitutionally insufficient in the 
absence of proof of actual receipt of the notice. Weng v. United 
States, 137 F.3d 709, 712-715 (2d Cir. 1998); United States v. Five 
Thousand Dollars in U.S. Currency, 184 F.3d 958, 960 (8th Cir. 
1999). 

14 

A. The Due Process Clause Requires Notice Reasonably 

Calculated, Under The Circumstances, To Apprise A 

Claimant Of The Forefeiture Proceeding 

The Due Process Clause generally requires that the 
government provide individuals with “notice and an 
opportunity to be heard” before depriving them of 
property. United States v. James Daniel Good Real 
Prop., 510 U.S. 43, 48 (1993). E.g., Tulsa Prof ’l Col- 
lection Servs., Inc. v. Pope, 485 U.S. 478, 482 (1988). 
This Court established the controlling principle in 
Mullane, supra: 

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 opportun- 
ity to present their objections. 

339 U.S. at 314 (emphasis added). Accord, e.g., Tulsa 
Prof ’l Collection Servs., 485 U.S. at 482; Mennonite Bd. 
of Missions v. Adams, 462 U.S. 791, 795 (1983); Greene 

v. Lindsey, 456 U.S. 444, 449-450 (1982). 
The Court’s decision in Mullane makes clear that the 
criterion for adequate notice is reasonableness: 

The notice must be of such nature as reasonably to 
convey the required information, * * * and it must 
afford a reasonable time for those interested to 
make their appearance * * *. But if with due 
regard for the practicalities and peculiarities of the 
case these conditions are reasonably met, the consti- 
tutional requirements are satisfied. “The criterion 
is not the possibility of conceivable injury, but the 
just and reasonable character of the requirements, 

15 

having reference to the subject with which the 
statute deals.” 

Mullane, 339 U.S. at 314-315. “The means employed 
must be such as one desirous of actually informing the 
absentee might reasonably adopt to accomplish it. The 
reasonableness and hence the constitutional validity of 
any chosen method may be defended on the ground that 
it is itself reasonably certain to inform those affected.” 
Id. at 315. 

The core issue in this case, accordingly, is whether 
the government’s practice of sending a prison inmate 
written notice of forfeiture proceedings by certified 
mail addressed to the prison where the inmate is 
incarcerated is a reasonable means for informing the 
inmate of the proceeding. This Court’s decisions, 
common experience, and the record in this case, all 
show that it is. 

B. The Government’s Practice Of Sending A Prison In- 
mate Written Notice Of Forfeiture Proceedings By 

Certified Mail Addressed To The Prison Where The 

Inmate Is Incarcerated Is A Reasonable Means For 

Informing The Inmate Of The Proceeding 

This Court has recognized on a number of occasions 
that issuing notice of a government action or proceed- 
ing through publication of the notice in a newspaper 
provides a constitutionally adequate means of notifying 
potentially interested persons whose identity or 
interests are not known or readily ascertainable. E.g., 
Tulsa Prof ’l Collection Servs., 485 U.S. at 491; Men- 
nonite Bd. of Missions, 462 U.S. at 798; Mullane, 339 
U.S. at 317. The Court has ruled, however, that more 
specific notice is required when the identity and ad- 
dress of a potentially interested party can be deter- 
mined through reasonable means. In a long series of 

16 

decisions spanning half a century and a wide variety of 
proceedings, the Court has consistently endorsed 
ordinary mail as a constitutionally adequate means of 
delivering notice to parties whose addresses are known. 
Although the Court is well aware that mailing does not 
guarantee receipt, the Court has never required proof 
of actual receipt of a notice that is properly mailed. 

In Mullane, the Court held that publication alone 
was insufficient under the Constitution to provide 
notice to beneficiaries of a common trust whose identi- 
ties and addresses were known to the trustee, but it 
rejected the argument that personal service was re- 
quired. 339 U.S. at 318-319. Applying a standard of 
reasonableness, the Court concluded that “ordinary 
mail to the record addresses” would be sufficient as it 
constituted “a serious effort” to inform the beneficiaries 
of the proceeding. Id. at 318. The Court stated that the 
mails “are recognized as an efficient and inexpensive 
means of communication.” Id. at 319.9 

9 Although this Court determined in Mullane that consti- 
tutionally adequate notice may be provided through “ordinary 
mail,” Mullane, 339 U.S. at 318, the government follows the prac- 
tice of sending forfeiture notices to prisoners by certified mail. 
The government’s use of certified mail, although ordinary mail 
would suffice, demonstrates its commitment to provide notice 
“such as one desirous of actually informing the absentee might 
reasonably adopt to accomplish it.” Id. at 315. See Whiting, 231 
F.3d at 76 (“The mail is a well-recognized means of communicating 
important information, * * * and certified mail has further 
safeguards (i.e., signature of recipient upon delivery and return of 
the signed receipt card).”). Petitioner disputes whether certified 
mail provides a more reliable means to accomplish the desired goal 
of providing forfeiture notice to prospective claimants, arguing 
that certified mail is no more likely to reach its destination than 
ordinary mail. Pet. Br. 18. But even if ordinary mail and certified 
mail are equally likely to reach their destinations, the return 

17 

The Court reached the same conclusion in City of 
New York v. New York, New Haven & Hartford 
Railroad, 344 U.S. 293 (1953). That decision overturned 
an order forfeiting New York City’s liens on certain 
railroad property in a bankruptcy proceeding because 
the city received notice only by publication. As in 
Mullane, the Court found the procedure implemented 
inadequate because notice had not been mailed to the 
city. Id. at 296-297. “When the judge ordered notice by 
mail to be given the appearing creditors, New York 
City acted reasonably in waiting to receive the same 
treatment.” Ibid. 

10 

The Court concluded in Walker v. City of Hutchin- 
son, 352 U.S. 112 (1956), that newspaper publication 
notice alone was insufficient to advise a known home- 
owner of a condemnation proceeding, but indicated that 
mailing a notice would have sufficed. Id. at 116 (“Even 

receipt feature of certified mail documents whether the mail has 
indeed arrived. The return receipt therefore provides useful in- 
formation for verifying delivery of notice to the prison, even 
though the ultimate recipient is a federal prisoner and, for obvious 
reasons of prison security, is not allowed to visit the post office and 
personally sign for the item of mail. 

10 Petitioner characterizes Covey v. Town of Somers, 351 U.S. 
141 (1956), as an example of a case from the same time period in 
which “mailed notice [was] inadequate in circumstances pre- 
sented.” Pet. Br. 24. In that case, the Town of Somers attempted 
to foreclose on property of a mentally incompetent person. The 
Court found that notice was inadequate in that case, not because 
mailing the notice was an unreliable means of delivery, but because 
the recipient was known to be incompetent and unable to under- 
stand the contents of the delivered notice. 351 U.S. at 146-147. 
Petitioner does not claim to be mentally incompetent and Covey is 
therefore inapposite to the issue presented here. See, e.g., Whit- 
ing, 231 F.3d at 76 (noting that Covey is clearly distinguishable 
from the inmate notice situation). 

18 

a letter would have apprised him that his property was 
about to be taken.”). The Court considered a similar 
condemnation proceeding in Schroeder v. City of New 
York, 371 U.S. 208 (1962). It held that published 
notices, even when supplemented by posting notices 
near the affected property, constituted a constitution- 
ally insufficient manner for notifying property owners. 
Id. at 211-214. But the Court adverted to the consti- 
tutional sufficiency of mailed notice, stating that 
“[w]here the names and post-office addresses of those 
affected by a proceeding are at hand, the reasons 
disappear for resort to means less likely than the mails 
to apprise them of its pendency.” Id. at 213. The Court 
stated that the city had failed in its constitutional 
obligation to “make at least a good faith effort to give 
[the information] personally to the appellant—an obli- 
gation which the mailing of a single letter would have 
discharged.” Id. at 214. 

In Greene, supra, the Court found that posting a copy 
of a notice of forcible entry and detainer proceedings on 
the subject premises did not satisfy the minimum stan- 
dards for constitutionally adequate notice described in 
Mullane. 456 U.S. at 453-454. While the Court did not 
prescribe the form of notice that should be adopted, id. 
at 455 n.9 (“we hold only that posted notice pursuant to 
[the Kentucky statute] is constitutionally inadequate”), 
it explained that “the mails provide an ‘efficient and 
inexpensive means of communication’ * * * upon 
which prudent men will ordinarily rely in the conduct of 
important affairs,” id. at 455. 

The Court also endorsed mailing as a constitutionally 
adequate manner of providing notice in Mennonite 
Board of Missions, supra. The Court concluded that 
publication, posting, and mailing solely to the property 
owner were insufficient means to provide a mortgagee 

19 

with notice of a pending tax sale. 462 U.S. at 798-799. 
Rather, when the mortgagee is identified in the public 
record, “constructive notice by publication must be 
supplemented by notice mailed to the mortgagee’s last 
known available address, or by personal service.” Id. at 
798. 

11 

Most recently, in Tulsa Professional Collection Ser- 
vices, Inc., supra, the Court ruled that publication alone 
was an insufficient method of providing notice if used to 
extinguish the claims of known creditors of a decedent’s 
estate. 485 U.S. at 485-490. The Court concluded that 
ordinary mailing of a notice to creditors would be 
constitutionally sufficient to meet the requirements of 
due process, stating that “[w]e have repeatedly recog- 
nized that mail service is an inexpensive and efficient 

11 Petitioner suggests that the Court found simple mailing 
sufficient in Mennonite only because that case involved a 
“sophisticated” creditor with “ability to take steps to safeguard its 
interests.” Pet. Br. 25 (citing Mennonite, 462 U.S. at 799). To the 
contrary, the Court’s discussion of sophisticated creditors in Men- 
nonite involved the rejection of a claim that some form of notice 
less than mailing would be sufficient because mortgagees were 
supposedly sophisticated creditors. The court noted that mortga- 
gees are not necessarily sophisticated creditors, but went on to 
state generally that mailing, or other means as likely to ensure 
receipt of notice, is a constitutional means of providing notice to a 
party whose address is known: 

Notice by mail or other means as certain to ensure actual 

notice is a minimum constitutional precondition to a pro- 
ceeding which will adversely affect the liberty or property 
interests of any party, whether unlettered or well versed in 
commercial practice, if its name and address are reasonably 
ascertainable. 

Mennonite, 462 U.S. at 800. 

20 

mechanism that is reasonably calculated to provide 
actual notice.” Id. at 490. 

12 

The Court’s recognition of the adequacy of notice by 
mail comports with common experience. Mailing is a 
means of communication “upon which prudent men will 
ordinarily rely in the conduct of important affairs.” 
Greene, 456 U.S. at 455. It is unquestionably a means of 
providing notice “such as one desirous of actually in- 
forming the absentee might reasonably adopt to 
accomplish it.” Mullane, 339 U.S. at 315. Indeed, the 
record in this case bears out that mail remains a 
generally reliable means of transmitting information: 
The FBI’s mailing to petitioner at petitioner’s prison 
address was received at the prison, notwithstanding a 
typographical error in the address. See note 6, supra. 
In any event, a prisoner is not entitled to more due 
process than other citizens, who must also face a 
minimal prospect that the mail might be lost or de- 

12 In the Tulsa decision, the Court referred to notice by mail as 
providing “actual notice,” but the Court by no means implied that 
notice by mail is ineffective unless actually received. See 485 U.S. 
at 489-490. Rather, the Court used that term to distinguish notice 
by mail from notice by publication, which is commonly described as 
a form of “constructive notice.” Mennonite, 462 U.S. at 798. See 
Tulsa, 485 U.S. at 491 (“the Due Process Clause requires that 
appellant be given ‘[n]otice by mail or other means as certain to 
ensure actual notice’” (quoting Mennonite, 462 U.S. at 800)). See 
also One Toshiba Color Television, 213 F.3d at 155 n.3; cf. Weigner 

v. City of New York, 852 F.2d 646, 651 n.6 (2d Cir. 1988) 
(addressing ambiguity in references to “actual notice”), cert. 
denied, 488 U.S. 1005 (1989). Petitioner, along with some courts, 
see, e.g., Minor, 228 F.3d at 358, uses the term “actual notice” to 
refer not to mailing alone but to the actual receipt of the notice by 
the intended recipient or to a standard requiring proof of that 
receipt. Because of the potential ambiguity, we have avoided use 
of the term “actual notice” in addressing the issue presented here. 

21 

livered to the wrong address. Hence, petitioner’s claim 
that mailing a forfeiture notice to a prisoner is consti- 
tutionally inadequate hinges entirely on his conjecture 
that the prisons do not reliably convey inmate mail to 
the inmates. See Pet. 14. That conjecture is without 
foundation. 

C. Petitioner’s Conjecture That Prisons Receive Inmate 

Mail, But Do Not Deliver It To Inmates, Is Unfounded 

Petitioner contends that notice by mail violates due 
process because there is a “significant risk that notice 
mailed to a jail or prison will not reach the inmate.” 
Pet. Br. 14. But petitioner has offered no evidence, 
apart from his own assertion that he did not receive the 
government’s notice in this case, that the mail system 
where he is incarcerated was unreliable. Petitioner’s 
individual claim of non-receipt, even if true, falls far 
short of establishing a constitutional violation. 

As we have explained, the question is whether the 
government has adopted a means of notice “reasonably 
calculated” to apprise petitioner of pending proceed- 
ings. Mullane, 339 U.S. at 314. As the courts below 
correctly recognized, the government is not required to 
show that an individual piece of mail “actually reached 
an inmate in order to satisfy requirements of due 
process.” See J.A. 60, 70. Rather, the government is 
entitled to defend its notification procedure “on the 
ground that it is in itself reasonably certain to inform 
those affected.” Mullane, 339 U.S. at 315. See Whiting 

v. United States, 231 F.3d 70, 76 (1st Cir. 2000) 
(Mullane’s “reasonably calculated” standard requires 
“likelihood, not certainty.”). 

The government demonstrated in the proceedings 
below that it was justified in relying on prison pro- 
cedures for delivering mail to inmates. A Milan FCI 

22 

mail room employee described the prison’s procedure 
for distributing mail at the time that the government 
mailed the notice in this case. See J.A. 36-37, 47-52. He 
explained how prison employees picked up prison mail 
at the post office, recorded receipt of certified mail, and 
delivered the mail to the prisoner. The government’s 
uncontroverted evidence demonstrates that the gov- 
ernment was entitled to expect that certified mail 
addressed to the prisoner at his prison address would 
reach the prisoner. See J.A. 37 (“based upon the 
attached certified receipt, the letter was delivered to 
FCI Milan, and pursuant to the business practices of 
FCI Milan it should have been received by the in- 
mate”). 

13 

Petitioner seeks support for his assertion that a sub- 
stantial mail delivery problem exists in penal facilities 
by a reference to decisions addressing claims that 
prisoners failed to receive forfeiture notices. Pet. Br. 

13 Petitioner makes much of the fact that the Milan FCI log 
books are no longer in existence to refute his claim of non-receipt. 
Pet. Br. 15 n.4. The FCI’s mail delivery procedures in effect at the 
time of the forfeiture here were designed to assure delivery of mail 
and not to refute possible claims on non-delivery made many years 
later. Hence, log books that recorded the receipt and distribution 
of certified mail were not retained for an extended period. See 
J.A. 37, 51-52 (FCI log books were destroyed one year after they 
are “closed.”). Petitioner also points out that the government did 
not produce a prison employee who remembered delivering the 
notice to petitioner. Pet. Br. 15 n.4. It is hardly surprising that 
prison employees would not recollect delivering a particular piece 
of mail to an individual many years after the fact. “Given the 
temporal gap that may separate a forfeiture from a due process 
challenge to the proceedings, it is easy to imagine situations in 
which proof of the delivery of notice may be unavailable, even if 
such notice was properly served.” One Toshiba Color Television, 
213 F.3d at 155. 

23 

14-15. Petitioner’s citation to a modest number of cases 
is unconvincing when measured against a 1999 federal 
prison population of more than 135,000 inmates. 
See Bureau of Justice Statistics, Bulletin: Prisoners in 
1999 (8/00 NCJ 183476) (available at www.ojp. 
usdoj.gov/bjs/abstract/p99.htm.). Moreover, the deci- 
sions that petitioner cites involve only claims that 
notice was not received—claims often made long after 
the fact and not subject to verification. As Judge 
Boudin observed in Whiting, supra, a prisoner’s claim 
in such a matter is not necessarily true: 

It is well to be realistic about the situation: given 
the incentives, inmate denials that mailed notice was 
actually received are doubtless much more common 
than misdelivery, and knowledge is probably wide- 
spread among defendants in drug cases that the 
government does look to harvest assets from drug 
dealers incident to criminal cases. 

231 F.3d at 77. See United States v. One Toshiba Color 
Television, 213 F.3d 147, 159-160 (3d Cir. 2000) (en 
banc) (Alito, J., concurring and dissenting) (noting the 
lack of evidence of any systemic problem with delivery 
of mail sent to jails or prisons and observing that “[t]he 
mere fact that [the claimant] and a handful of other 
federal prisoners and detainees have claimed that they 
did not receive notice sent by mail to their facilities is 
hardly enough to show the existence of a serious 
problem”). 

Petitioner has provided no persuasive evidence that 
prison mail systems are unreliable. To the contrary, 
the Bureau of Prisons (BOP) has established standard 
procedures governing delivery of inmate mail, including 
certified mail, to ensure reliable delivery. See BOP 
Program Statement 5800.10 (Nov. 3, 1995) (available at 

24 

www.bop.gov). The BOP’s current practices demon- 
strate the government’s commitment to providing in- 
mates with reliable mail service and provide reasonable 
certainty that inmates, like the general public, will 
receive properly posted mail. 

The current procedures specifically address the dis- 
tribution of certified mail. They require prison em- 
ployees handling certified mail to sign a written ac- 
knowledgment of possession of the mail before de- 
livering it to the inmate. See BOP Program Statement 
5800.10.409. Prison employees must not only record the 
receipt of the certified mail and its distribution, but the 
prisoner himself must sign a log book acknowledging 
delivery. BOP Program Statement 5800.10.409A (“A 
log shall be maintained which the inmate shall be 
required to sign prior to delivery, thus completing the 
chain of receipts.”); see also BOP Operations Memoran- 
dum 035-99 (5800) (July 19, 1999) (providing additional 
guidance on handling of certified mail). Petitioner has 
provided no basis for doubting that BOP mail room 
employees, like postal employees, follow the prescribed 
procedures governing delivery of certified mail. 

14 

In the face of the BOP’s current policies and the re- 
cord in this case, petitioner has failed to show a serious 
risk that inmates will not receive certified mail at 
prison. Petitioner has shown only that BOP’s past 

14 The proceedings below did not resolve whether, in 1988, the 
the Milan FCI followed a policy of requiring the inmate to sign a 
log book to acknowledge receipt of certified mail. See J.A. 52. The 
existence of such log books cannot be conclusively determined 
because, under BOP’s policy at that time, the FCI retained log 
books for one year and then destroyed them. Ibid. In 1999, BOP 
instituted a policy requiring retention of the log books for 30 years. 
See BOP Operations Memorandum 035-99 (5800) (July 19, 1999), as 
extended. 

25 

record retention policies are insufficient to refute 
conclusively his claim that he did not receive the notice 
at issue in this case. Given the absence of a sound 
foundation for petitioner’s assertions about the risk of 
non-delivery of mail in federal penal facilities, there is 
no basis for imposing special due process requirements 
for notifying prisoners of forfeiture proceedings. 
Indeed, the government’s practice of notifying inmates 
by certified mail addressed to the prison where they 
are incarcerated provides a higher guarantee of receiv- 
ing notice than due process requires. 

15 

D. Petitioner’s Proposed Rule That The Government 

Must Prove Actual Receipt Of Notice Finds No 

Support In This Court’s Decisions And Is Not 

Warranted By Petitioner’s Policy Justifications 

Petitioner posits that this Court’s due process juris- 
prudence not only requires the government to utilize a 
means of notice that is reasonably calculated to apprise 
the inmate of a forfeiture proceeding, but also requires 
the government to prove that the inmate in fact 
received notice. Pet. Br. 11. Petitioner’s position, 
however, is not only squarely inconsistent with this 
Court’s decisions, but it has been rejected by a majority 

15 See note 9, supra. The government did not rely only on the 
prison mail system in this case, but also provided notice by publi- 
cation and by mailing the forfeiture notice to petitioner’s pre- 
incarceration addresses. Petitioner argues that those means of 
notice were unlikely to reach an inmate. Pet. Br. 13-14. But those 
means were not the only ones used. Cf. Robinson v. Hanrahan, 
409 U.S. 38 (1972) (a forfeiture notice mailed solely to the pri- 
soner’s home address is not “reasonably calculated” to apprise the 
prisoner of a forfeiture proceeding). The government’s use of 
those means of notice provided a supplement to the notice mailed 
to the prison address and increased the probability that petitioner 
would receive notice. 

26 

of the courts of appeals and is neither necessary nor 
desirable as a matter of sound policy. 

As an initial matter, petitioner can point to no deci- 
sion of this Court holding that the Due Process Clause 
not only requires the government to provide notice 
through means “reasonably calculated” to reach the 
recipient, Mullane, 339 U.S. at 314, but also requires 
the government to prove that the intended recipient 
actually received the notice. Every decision of this 
Court since Mullane has stated that the Due Process 
Clause is satisfied if the means of notice meets 
Mullane’s “reasonably calculated” standard. See pp 13- 
15, supra. 

16 

Petitioner seeks to avoid this Court’s contrary pre- 
cedent by urging that the Court evaluate his entitle- 
ment to notice under the formula that the Court set out 
in Mathews v. Eldridge, 424 U.S. 319 (1976), for resolv- 
ing due process challenges to the adequacy of admini- 
strative procedures affecting private interests. See 
Pet. Br. 12. This Court, however, does not apply the 
Mathews formula to all due process challenges. See, 

e.g., Medina v. California, 505 U.S. 437, 443 (1992). 
When determining whether a means of notice complies 
with due process, the Court has consistently applied the 

16 Indeed, the rule petitioner urges would go beyond what the 
Federal Rules of Civil Procedure require for initiating a civil law- 
suit. Rule 4(d) of those Rules generally requires personal service 
of process initiating a lawsuit, but that Rule does not require the 
plaintiff to prove that the intended recipient personally received 
the summons and complaint. Rule 4(e) of those Rules provides 
that service may be effected by leaving copies of the summons and 
complaint “at the individual’s dwelling house or usual place of 
abode with some person of suitable age and discretion then 
residing therein.” Fed. R. Civ. P. 4(e). Petitioner has not ques- 
tioned the constitutionality of that Rule. 

27 

Mullane standard, which specifically focuses the due 
process inquiry on whether the method of notification is 
“reasonably calculated” to reach interested parties. 
See, e.g., Mennonite Bd. of Missions, 462 U.S. at 797 
(“this Court has adhered unwaiveringly to the principle 
announced in Mullane”). 

This Court should not replace the workable and well 
focused Mullane standard, which concentrates atten- 
tion on whether the means of notice is likely to be 
effective, with the more general—and accordingly less 
certain—Mathews balancing test. But even if the Court 
were to do so here, the result would be the same. The 
Mathews analysis generally requires consideration and 
weighing of three factors: 

First, the private interest that will be affected by 
the official action; second, the risk of an erroneous 
deprivation of such interest through the procedures 
used, and the probable value, if any, of additional or 
substitute procedural safeguards; and finally, the 
Government’s interest, including the function in- 
volved and the fiscal and administrative burdens 
that the additional or substitute procedural require- 
ment would entail. 

424 U.S. at 335. The government’s provision of notice 
through certified mail comports with due process when 
considered in light of those three factors. 

First, the private interest at stake here—ownership 
of $21,939 in currency—is by no means insignificant. 
But the fact that the proceedings involve property of 
significant value does not mean that mailing is an 
inadequate means of notice. This Court has repeatedly 
recognized that notice may be provided by ordinary 
mail without regard to the value of the property at 
stake. See, e.g., Tulsa Prof ’l Collection Servs., 485 U.S. 

28 

at 479 (notice of creditor claims against a decedent’s 
estate, regardless of value); Mennonite Bd. of Missions, 
462 U.S. at 798 (notice to mortgagees of tax sale of real 
property). 

17 

Second, as previously discussed, petitioner has failed 
to establish that notifying inmates by certified mail at 
their prison address poses a significant risk of errone- 
ous deprivation of property. See pp. 21-25, supra. 
There is correspondingly little probable value, from a 
due process perspective, in imposing additional or 
substitute procedural safeguards, such as petitioner’s 
suggestion that the government “send the notice to a 
prison official, with a request that a prison employee 
watch the prisoner open the notice, cosign a receipt, 
and mail the signed paper back to the agency from 
which it came.” Pet. Br. 17. 

Third, petitioner’s proposal subjects the government 
to significant and unnecessary fiscal, administrative, 
and security burdens. The BOP is charged with 
managing a prison population of more than 100,000 per- 
sons who receive a substantial amount of mail, including 
certified mail. Those inmates receive a significant 
number of legal notices, including notices of admini- 
strative forfeiture. 

18 As noted previously, the BOP has 

17 The actual value of the creditor claim in Tulsa appears to 
have been $14,657.55, out of an original hospital bill of over 
$142,000, most of which was paid by insurance. See In re Estate of 
Pope, 808 P.2d 640, 641-642 n.3 (Okla. 1990). The Court’s decision 
in Mennonite indicates that the amount of the mortgage due in 
that case was $8237.19. Mennonite, 462 U.S. at 794. 

18 The Department of Justice Consolidated Asset Tracking 
System (CATS) reports that, with respect to seizures in fiscal year 
2000, the FBI and the Drug Enforcement Administration (DEA) 
sent out a total of more than 9000 administrative forfeiture notices 
to incarcerated individuals. Other agencies that conduct asset for- 

29 

developed detailed procedures for handling inmate 
mail, and it has developed policies respecting certified 
mail delivery that are adequate to ensure that inmates 
promptly and efficiently receive those notices. See 
BOP Program Statement 5800.10.409. There is no 
warrant for imposing, as a matter of constitutional law, 
additional burdensome requirements that have not 
been shown to be necessary. 

19 

The Mathews balancing test accordingly does not 
support petitioner’s contention. Rather, petitioner’s 
invocation of that balancing test simply highlights that 
a departure from the Mullane standard would require 
the Court to become directly engaged in formulating 
prison policies respecting the handling of inmate mail. 
This Court has previously acknowledged that prison 
officials have considerable expertise in such matters 

feiture programs, such as the Customs Service, may also have oc- 
casion to send notices to inmates. Furthermore, petitioner’s 
theory might well require that various other types of notices 
affecting property interests, such as tax delinquency notices and 
foreclosure notices, would be subject to the same additional 
requirements he proposes. 

19 The FBI and the DEA have adopted practices that already 
go far beyond what due process requires in ensuring that inmates 
receive administrative forfeiture notices. For example, BOP’s pro- 
cedures currently provide that certain types of mail, including 
appropriately marked congressional, judicial, law enforcement, and 
attorney correspondence, may be marked as “special mail” and 
opened only in the inmate’s presence (but not by the inmate). See 
28 C.F.R. 540.12(c); BOP Program Statement 5800.10.305. The 
FBI and the DEA inform us that, in recent years, those agencies 
have followed a practice of marking administrative forfeiture 
notices as “special mail.” The Due Process Clause does not, how- 
ever, require federal and state agencies and prisons to follow that 
practice, and it should not be imposed as a matter of constitutional 
law. 

30 

and that “the judiciary is ‘ill-equipped’ to deal with the 
difficult and delicate problems of prison management.” 
Thornburgh v. Abbott, 490 U.S. 401, 407-408 (1989) 
(quoting Procunier v. Martinez, 416 U.S. 396, 404-405 
(1974)). The Court has accordingly “afforded consider- 
able deference to the determinations of prison admini- 
strators who, in the interest of security, regulate the 
relations between prisoners and the outside world.” Id. 
at 408. See Greene, 456 U.S. at 455 n.9 (“It is not our 
responsibility to prescribe the form of service that the 
[government] should adopt.”). 

The courts of appeals that have addressed the consti- 
tutional issue presented here have uniformly applied 
the Mullane standard, and most have concluded that 
the government’s mailing of notice by certified mail to 
the inmate’s prison address satisfies due process. See 
note 8, supra (collecting cases). See J.A. 70; Whiting, 
231 F.3d at 76-77; United States v. Real Prop. (Lido 
Motel), 135 F.3d 1312, 1315-1316 (9th Cir. 1998); United 
States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996). Those 
courts have quite properly recognized that they are not 
empowered to formulate government procedures re- 
specting notice, but instead are to ascertain “the bare 
minimum required by the Constitution.” Whiting, 231 
F.3d at 76; accord One Toshiba Color Television, 213 
F.3d at 159 (Alito, J., concurring and dissenting); see 
Weigner v. City of New York, 852 F.2d 646, 650 (2d Cir. 
1988) (“in deciding what the Constitution requires, we 
are not free to select forms of notice simply because 
they are advantageous”), cert. denied, 488 U.S. 1005 
(1989). 

The two courts of appeals that have required the 
government to prove actual receipt of notice have pur- 
ported to apply the Mullane standard, but they have 
not relied on any documentation that prison mail 

31 

delivery is unreliable; rather, they have based their 
decisions on ad hoc pronouncements of “fundamental 
fairness” and the absence of agency “hardship.” See 
United States v. Five Thousand Dollars in U.S. 
Currency, 184 F.3d 958, 960 (8th Cir. 1999) (“if the 
government is incarcerating the property owner when 
it initiates forfeiture proceedings, we have consistently 
held that fundamental fairness requires that the pro- 
perty owner or his or her counsel receive actual notice 
of the forfeiture in time to decide whether to compel the 
government to proceed by judicial condemnation”); 
Weng v. United States, 137 F.3d 709, 714-715 (2d Cir. 
1998) (“where the owner is in federal custody on the 
very charges that justify a federal agency in seeking 
the forfeiture, there is no undue hardship to the agency 
in insuring that the owner-prisoner actually receive the 
legally required notification”). 

Even if it were permissible for courts to approach the 
due process issue here as a matter of what is “fair” or 
workable, the result the Second and Eighth Circuits 
have reached is neither. As the Third Circuit has 
pointed out, a new standard requiring proof of actual 
delivery is likely to reduce, rather than increase, the 
fairness and workability of administrative forfeiture 
proceedings: 

The real difficulty with the Weng rule lies not in 
requiring the government to demonstrate actual 
notice, but rather [in] the evidentiary burden that 
such a standard could impose after the passage of 
time. Given the temporal gap that may separate a 
forfeiture from a due process challenge to the pro- 
ceedings, it is easy to imagine situations in which 
proof of the delivery of notice may be unavailable, 
even if such notice was properly served. An overly 

32 

strict notice requirement, therefore, could lead to 
unsettling the outcome of completed proceedings 
based on nothing but bare allegations of a party who 
had lost property. 

One Toshiba Color Television, 213 F.3d at 155; accord 
United States v. Minor, 228 F.3d 352, 358 (4th Cir. 
2000). As we have explained, petitioner has failed to 
show any persuasive reason to doubt the reliability of 
the prison mail delivery system at the Milan FCI. His 
failure to carry his burden on that score should be 
dispositive of his due process claim. 

Petitioner has identified three additional “factual cir- 
cumstances” that he believes should “dictate the 
outcome here” (Pet. Br. 11): (1) the government knows 
where the petitioner is located; (2) the government has 
the ability to ensure actual delivery because it controls 
the prisoner’s physical location; and (3) the government 
stands to gain financially by not providing adequate 
notice. See Pet. Br. 16-17, 19, 21-22. Those “factual 
circumstances”—which are more accurately described 
as policy arguments—do not warrant a requirement 
that the government prove that an inmate has actually 
received notice of a forfeiture proceeding. 

The first of the petitioner’s “factual circumstances”— 
the government’s knowledge of the inmate’s location— 
provides no basis for a special “inmate” rule. The Court 
has repeatedly indicated that notice by publication is 
insufficient, but notice by ordinary mail is sufficient, if a 
claimant’s address is known or reasonably ascertain- 
able. See, e.g., Tulsa Prof ’l Collection Servs., 485 U.S. 
at 491; see also cases discussed at pp. 15-20, supra. 
Hence, the fact that the forfeiting agency can locate the 
inmate’s address warrants notice by mail, but it does 

33 

not warrant the additional step, unprecedented in this 
Court’s decisions, of requiring proof of actual receipt. 

Petitioner’s second factual circumstance—the 
government’s control over the inmate’s location–— 
distinguishes inmates from most other interested 
parties, but not in a way that is relevant to the due 
process issue posed here. There is no reason why the 
government’s control over the inmate’s location logi- 
cally implicates a need for the government to prove 
actual receipt of notice. The question under Mullane is 
whether the notice is “reasonably calculated” to reach 
the inmate. If, as we have shown (pp. 21-25, supra), the 
mails are a reliable means of reaching the inmate, it is 
of no relevance to the Mullane inquiry that the inmate 
is reachable at a location that the government chose. 

Petitioner’s third factual circumstance—that the 
government would potentially gain financially if it could 
conduct forfeitures without providing adequate notice 
—similarly makes no logical sense. Petitioner implies, 
without foundation, that the government has a 
motivation to deprive petitioner of property without 
due process of law. The government is entitled to a 
presumption that it will act lawfully. But even if that 
were not so, the government’s method of providing 
notice through certified mail is “reasonably calculated” 
to provide actual notice. See pp. 15-25, supra. 
Accordingly, there is no need for special precautions to 
prevent government malfeasance. The government has 
itself chosen means of providing notice that would 
defeat the government’s supposed design to deprive 
individuals of their property without due process. 

In short, petitioner has provided no persuasive rea- 
sons for this Court to depart from the Mullane 
standard of notice “reasonably calculated” to reach an 
interested party and to require the government to 

34 

prove actual receipt of notice. The Court has never 
invoked the Due Process Clause as a basis imposing an 
actual receipt requirement, and to do so here would 
introduce a anomalous departure from settled law. 

E. Petitioner Is Mistaken In Claiming That Inadequate 

Notice Would Render A Forfeiture “Void” And Entitle 

Him To Return Of Forfeited Property 

Petitioner argues that if this Court were to deter- 
mine the government failed to meet the notice require- 
ments of the Due Process Clause, the 1988 forfeiture of 
the currency at issue here would be “void” and the 
government would be barred by 19 U.S.C. 1621, the 
five-year statute of limitations relating to forfeitures, 
from reinstituting forfeiture proceedings. Pet. Br. 26- 

29. Petitioner further asserts that “the forfeiture is not 
only void, but the motion for return of property must be 
granted.” Id. at 27. Under petitioner’s view, if the 
Court determined that notice here was inadequate, he 
would be entitled to the $21,939 without regard to 
whether the money was derived from his drug traffick- 
ing activity. 

20 

Petitioner’s argument fails at the outset because it is 
not fairly subsumed within the question on which the 
petition for a writ of certiorari was granted, which 

20 Petitioner admitted at a district court evidentiary hearing 
that he had not been employed since 1983 and that, at the time of 
the April 1986 seizure, “most of my money” came from sales of 
illegal drugs. Tr. 15-16 (7/23/97) (District Court Docket Entry No. 
147); see J.A. 64 (petitioner’s admission that his 1985 automobile 
purchase was “probably” made with cash from cocaine sales); J.A. 
63-64 (admissions that seized personal property was purchased 
with “drug money”); J.A 65, 71 (holdings of the courts below that 
personal property and automobile seized from petitioner were 
obtained with drug trafficking proceeds). 

35 

petitioner phrased as follows: “Should this court grant 
certiorari to resolve the split among the circuits as to 
whether a prisoner must receive ‘actual notice’ regard- 
ing a forfeiture notification?” Pet. ii. Petitioner’s argu- 
ment does not in any way address adequacy of notice to 
prisoners or, for that matter, to non-prisoners; it 
instead presents questions of remedy and procedure, 
applicable to prisoners and non-prisoners alike, that the 
courts below had no occasion to reach. 

The court of appeals found that the notice to peti- 
tioner complied with the due process requirements of 
Mullane, and it therefore affirmed the district court’s 
grant of summary judgment in favor of the govern- 
ment. J.A. 70. Accordingly, it did not address the 
appropriate disposition of petitioner’s equitable claim 
for return of the currency in the event the notice had 
been constitutionally inadequate. If the ruling of the 
court of appeals on the notice question is reversed, 
further proceedings would be required in the courts 
below to determine in the first instance the appropriate 
disposition of petitioner’s request for return of the 
currency. 

But even if the question were properly before this 
Court, petitioner’s contention is mistaken. If a defect in 
providing notice deprives a claimant of the right to 
contest the validity of a forfeiture, the claimant is en- 
titled to restoration of the right lost, namely, the right 
to contest the forfeiture. See Boero v. DEA, 111 F.3d 
301, 305-307 (2d Cir. 1997) (where the government fails 
to provide adequate notice and thereby deprives a 
claimant of the right to be heard, the “remedy is to 
restore his right to seek a hearing in district court”); 
accord United States v. Dusenbery, 201 F.3d 763, 768 
(6th Cir.) (“Like the Second Circuit, we think that 
inadequate notices should be treated as voidable, not 

36 

void, and that the proper remedy is simply to restore 
the right * * * timely * * * 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.”), cert. denied, 121 S. 
Ct. 301 (2000); Small v. United States, 136 F.3d 1334, 
1338 (D.C. Cir. 1998) (where notice was found inade- 
quate, case was remanded to the district court to grant 
the claimant a hearing on the merits of the forfeiture). 

Some courts of appeals have agreed with petitioner’s 
view that a forfeiture defective on grounds of inade- 
quate notice is void. See, e.g., Foehl v. United States, 
238 F.3d 474, 480-481 (3d Cir. 2001) (collecting cases). 
But, even where the statute of limitations has run, it 
does not appear that those courts would preclude all 
possible defenses to the return of the seized property. 
For example, in One Toshiba Color Television, the 
Third Circuit endorsed the view that a judgment issued 
without proper notice to a potential claimant is void, 
but it observed that a holding that a forfeiture was void 
“does not equate to a ruling that he is entitled to a 
return of the property or monetary relief from the 
government.” 213 F.3d at 156-157 (noting that further 
proceedings were required in which the government 
could invoke defenses); see Clymore v. United States, 
164 F.3d 569, 574 (10th Cir. 1999) (statute of limitations 
allowed to operate “subject, of course, to any available 
government arguments against it”); see also Clymore v. 
United States, 245 F.3d. 1195 (10th Cir. 2001) (pre- 
scribing procedures for “deficient notice” cases); cf. 
United States v. Minor, 228 F.3d at 360 (noting differ- 
ing circuit rules as to applicable remedy where for- 

37 

feiture is not supported by constitutionally adequate 
notice). 

21 

In any event, there is no continuing need for this 
Court to address the additional question raised by 
petitioner because the Civil Asset Forfeiture Reform 
Act of 2000, Pub. L. No. 106-185, 114 Stat. 202, has 
resolved the issue with respect to forfeitures initiated 
after August 23, 2000. See note 2, supra. The current 
version of 18 U.S.C. 983(e)(1) (2000), enacted as part of 
that legislation, provides that “[a]ny person entitled to 
written notice in” an administrative forfeiture action 
“who does not receive such notice” may move to set the 
declaration of forfeiture aside. Section 983(e)(2)(A) 
further specifies that a finding that adequate notice was 
not provided is not fatal to the forfeiture, because 
“[n]otwithstanding the expiration of any applicable 
statute of limitations,” a court granting such a motion 
must do so “without prejudice to the right of the Gov- 
ernment to commence a subsequent forfeiture proceed- 
ing as to the interest of the moving party.” 18 U.S.C. 
983(e)(2)(A) (2000). Congress’s prospective resolution 
of the issue eliminates any need for this Court to decide 
a matter that is not properly before it. 

21 This Court has indicated that equitable tolling of the statute 
of limitations is appropriate where a party “actively pursue[s]” his 
rights before the statute runs, even if he does so by defective 
means, such as by filing a complaint in the wrong court. See Irwin 

v. Department of Veterans Affairs, 498 U.S. 89, 96 & n.3 (1991). 
Here, the government actively pursued its rights through the 
administrative forfeiture process Congress established by statute 
in 19 U.S.C. 1607(a) (1994 & Supp. V. 1999). It mailed notices to 
petitioner at three different locations and published notice in the 
newspaper. When petitioner failed to file a timely objection, the 
government duly entered a declaration of forfeiture, as it was 
entitled to do. See 19 U.S.C. 1609. 

38 

CONCLUSION 

The judgment of the court of appeals should be 
affirmed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

MICHAEL CHERTOFF 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

JEFFREY P. MINEAR 

Assistant to the Solicitor 

General 

WILLIAM C. BROWN 

Attorney 

JULY 2001