United States of America v. Reginald McGlory

UNITED STATES OF AMERICA

v.

REGINALD MCGLORY,
Appellant

On Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. Crim. No. 89-cr-00144)
District Judge: The Honorable D. Brooks Smith

Originally Argued April 5, 1999
Before: SLOVITER and ALITO, Circuit Judges,
ALARCON, Senior Circuit Judge*

Argued en banc November 8, 1999

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,
GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH,
MCKEE, RENDELL, and BARRY, Circuit Judges

(Filed February 1, 2000)

ALITO, Circuit Judge, dissenting:

I dissent from the judgment of the court and from part III of the court's opinion, which concerns the constitutionality of the notice of forfeiture that was provided in this case. I cannot agree with the majority's decision on this issue because it seems to me to be plainly inconsistent with the legal rule on which the majority purports to rely. According to the majority, "due process requires that when a person is in the government's custody and detained at a place of its choosing, notice of a pending administrative forfeiture must be mailed to the detainee at his or her place of confinement." Maj. Op. at 16-17. That is precisely what may well have happened in this case, and yet the majority holds that the manner in which notice was given here violated due process.

In the majority's view, the following procedure should have been used. An employee of the Drug Enforcement Administration (a component of the Department of Justice) should have ascertained from the United States Marshals Service (another component of the Department of Justice) where McGlory was held at the various times in question and then sent the notices of forfeiture to McGlory at those locations by first-class mail. Instead, this is what happened. An employee of the DEA sent the notices to the Marshals Service, which had legal custody of McGlory,knew his exact location at all times, and has extensive experience and responsibilities relating to the service of process. The notices were received by the Marshals Service (the DEA produced certified mail receipts for all of the notices at issue), and, if the Marshals Service followed its standard practice, the Marshals Service forwarded the notices "to the intended recipient at his place of confinement, by first class mail, postage prepaid." App. at 104.

Indeed, the Chief Deputy Marshal for the Western District of Pennsylvania affirmed that during the time in question "to the best of [his] knowledge and belief, the Standard office procedures of the United States Marshal Service were followed, and all such correspondence was forwarded to Reginald D. McGlory at his place of confinement by first class mail, postage prepaid." Id. at 105. Thus, if the Chief Deputy Marshal's belief and knowledge are correct and the standard practice of the Marshals Service was followed, notice of the forfeitures was mailed to McGlory at his place of confinement by first-class mail -- precisely what the majority says that due process demands.

Why, then, does the majority think that due process was violated? The majority provides no express explanation. The majority opinion appears to hint at two possible explanations, but neither is supportable. First, the majority may believe that it is essential that the notice be sent to the detainee's place of confinement by "the forfeiting agency," Maj. Op. at 11, in this case the DEA, rather than the Marshals Service. Compare Weng v. United States, 137 F.3d 709, 715 (3d Cir. 1998)(treating the forfeiting agency, the DEA, and another component of the Justice Department, the Bureau of Prisons, as one entity for the purpose of due process notice requirements in administrative forfeiture of property of detainee). The majority, however, provides no reason for this requirement, and there is no constitutional basis for it. The forfeiture proceedings were brought in the name of the United States, and I fail to see why it matters for due process purposes whether the notices were mailed by a person working for the DEA or the Marshals Service. Suppose that the notices had been mailed by an employee of the United States Attorney's office or an employee of the Criminal Division of the Department of Justice in Washington. Would that make the notices constitutionally inadequate?

The other possible ground for the majority's decision is internal Executive Branch efficiency. The majority opines that "adding the Marshals Service in the chain of mailers duplicates the number of agencies handling the mail, thereby increasing the possibility of error, and doubles the time until . . . receipt [by the detainee]." Maj. Op. at 15.

But even if this is true, it does not matter for purposes of the Due Process Clause. What matters for due process purposes is that notice is in fact mailed to the right place at the right time. If those requirements are met, any inefficiency in the internal government procedures leading up to the mailing is a matter for the Executive, not the Judiciary.

In sum, the en banc majority has rendered a decision that mailing by the Marshals Service, as opposed to the DEA, violates the Constitution, but the majority fails to say why, and no plausible explanation is apparent. I urge the majority to explain why it matters for due process purposes whether the notices were sent by the DEA or the Marshals Service. Since the majority has yet to offer such an explanation, and since none is apparent I would hold, contrary to the majority, that due process was satisfied in this case -- provided that the Marshals Service followed its standard practice and sent the notices in question to McGlory by first-class mail at his place or places of confinement. It is far from clear that McGlory has raised on appeal the argument that in fact the Marshals Service did not follow its standard practice with respect to the notices in question,3 but I would give him the benefit of the doubt on this point and remand for a factual finding by the District Court. If the District Court finds that the Marshals Service never sent the notices, I would agree with the majority that due process was not provided. But if theCourt finds that the Marshals Service did send the notices,I would hold that due process was satisfied.

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