Francisco Jaramillo-Gonzalez v. USA

Filing

UNPUBLISHED OPINION FILED. [09-11183 Affirmed in Part, Vacated in Part and Remanded.] Judge: RHB , Judge: CES, Judge: LHS. Mandate pull date is 12/13/2010 [09-11183]

Francisco Jaramillo-Gonzalez v. USA

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Case: 09-11183

Document: 00511269252

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Date Filed: 10/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 20, 2010 N o . 09-11183 Lyle W. Cayce Clerk

F R A N C I S C O JARAMILLO-GONZALEZ, P la in t iff - Appellant v. U N IT E D STATES OF AMERICA, D e fe n d a n t - Appellee

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:08-CV-732

B e fo r e BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges. P E R CURIAM:* F r a n c is c o Jaramillo-Gonzalez appeals the district court's grant of s u m m a r y judgment for the Government on his motion for return of property u n d e r Federal Rule of Criminal Procedure 41(g). We AFFIRM the district c o u r t's grant of summary judgment, VACATE the dismissal with prejudice, and REM AND. I n June 2003, Jaramillo-Gonzalez was arrested for cocaine trafficking. Following the arrest, Drug Enforcement Agency ("DEA") agents executed a
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

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Case: 09-11183

Document: 00511269252

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Date Filed: 10/20/2010

No. 09-11183 s e a r c h warrant at Jaramillo-Gonzalez's residence. The agents seized cocaine a n d heroin, a scale, four address books, pictures, miscellaneous documents, and n u m e r o u s firearms and ammunition. In October 2003, Jaramillo-Gonzalez pled g u ilt y to possessing cocaine and heroin with intent to distribute and to p o s s e s s in g a firearm in furtherance of a drug trafficking crime. Two months after the arrest but before the guilty plea, the DEA sent n o tic e to Jaramillo-Gonzalez of its intent to forfeit four of the firearms. The n o tic e was sent by certified mail to four different addresses, including the d e t e n t io n facility where he was being held. The letter was received by the fa c ilit y , but the evidence is disputed as to whether it was then delivered to J a r a m illo -G o n z a le z . He denies ever receiving the notice, but someone did sign h is name to a receipt. T h e four firearms were declared forfeited in November 2003, and s u b s e q u e n t ly destroyed. In July 2006, the scale, address books, and other

d o c u m e n t s and pictures were destroyed. Two remaining firearms were returned t o their owners. In December 2008, Jaramillo-Gonzalez filed a motion under Federal Rule o f Criminal Procedure 41(g) seeking return of all property seized from his r e s id e n c e except for the drugs. The Government moved to dismiss. It explained t h a t four firearms were forfeited and the others were returned to their owners, w h ile the remaining items were drug-related and had been destroyed pursuant t o DEA policy. The district court, construing the motion to dismiss as one for summary j u d g m e n t , granted judgment for the Government. The district court reasoned t h a t sufficient notice had been provided to Jaramillo-Gonzalez prior to the fo r fe it u r e and the destruction of some of the weapons. Further, the remaining it e m s could not be returned because the Government no longer possessed them. The district court held that because Jaramillo-Gonzalez had not sought any 2

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No. 09-11183 r e lie f other than return of his property, he would not be given an opportunity at t h a t stage to assert a new claim for monetary damages. This appeal followed. A grant of summary judgment is reviewed de novo. United States v. R o b in s o n , 434 F.3d 357, 361 (5th Cir. 2005). "A person aggrieved by . . . the d e p r iv a t io n of property may move for the property's return." Fed. R. Crim. P. 4 1 (g ). A court reviews an administrative forfeiture of property only for "failure t o comply with procedural requirements or to comport with due process." United S ta te s v. Schinnell, 80 F.3d 1064, 1069 (5th Cir. 1996). T h e Supreme Court has considered what the Government must do to n o tify an incarcerated person of an administrative forfeiture proceeding. See D u s e n b e r y v. United States, 534 U.S. 161 (2002). The Court instructed that a c t u a l notice is not required to satisfy due process, but notice must be " r e a s o n a b ly calculated, under all the circumstances, to apprise [interested p a r t ie s ] of the pendency of the action." Id. at 173 (internal quotations and c it a t io n omitted). Circuits have advanced differing views on whether notice, properly a d d r e s s e d to a prisoner and sent by certified mail to the facility where he is in c a r c e r a t e d , satisfies Dusenbery. The Seventh Circuit's interpretation is that d e liv e r y of such notice to the prison discharges the Government's obligation to p r o v id e notice of an administrative forfeiture proceeding. See Chairez v. United S ta te s , 355 F.3d 1099, 1101-02 (7th Cir. 2004). In contrast, the Eight Circuit h e l d "there is no irrebuttable presumption that a prison's internal maild is t r ib u t io n procedures are reasonably calculated to provide notice, but that the p r is o n e r , as the plaintiff, has the burden to demonstrate that the procedures are in a d e q u a t e ." Nunley v. Dep't of Justice, 425 F.3d 1132, 1137 (8th Cir. 2005). The Fifth Circuit has not yet adopted a position. T h e r e is no reason for us to elaborate on our views under Dusenbery. This c a s e does not present a factual basis on which any of the suggested standards 3

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No. 09-11183 w o u ld lead us to conclude that the notice did not comply with due process. The G o v e r n m e n t sent notice of the prospective firearms forfeiture by certified mail t o the facility where Jaramillo-Gonzalez was incarcerated. The Government s u b m it t e d evidence that the notice was received at the prison, and the prison m a il delivery logbook indicates it was delivered to the inmate. J a r a m illo -G o n za le z alleges he did not receive the forfeiture notice and that s o m e o n e else must have signed the mail delivery logbook. It is insufficient m e r e ly to deny receipt and suggest someone else must have signed for it. The q u e s t io n is whether sending the notice by certified mail and receiving a signed r e c e ip t of delivery were "reasonably calculated, under all the circumstances, to a p p r is e [him] of the pendency of the action." Dusenbery, 534 U.S. at 173

(in t e r n a l quotations and citation omitted). Jaramillo-Gonzalez has not provided a n y evidence to undermine the reasonable calculation by the DEA in 2003 that it s method of providing notice would apprise him of its planned forfeiture. A s to the remaining items, the Government does not contend it provided J a r a m illo -G o n z a le z with notice of forfeiture. The Government asserts instead t h a t those items were drug-related and therefore destroyed in accordance with D E A policy. Jaramillo-Gonzalez disagrees that the items were drug-related. Regardless of that dispute, Jaramillo-Gonzalez cannot compel the Government t o return property it no longer possesses. See, e.g., Peņa v. United States, 157 F .3 d 984, 987 (5th Cir. 1998). Accordingly, summary judgment denying the r e q u e s te d relief of return of the property was correct. O t h e r relief may be available, though. Jaramillo-Gonzalez may seek m o n e ta r y damages now that the Government no longer has the property. See B iv e n s v. Six Unknown Named Agents, 403 U.S. 388 (1971). He should be given a n opportunity to amend his complaint to state a Bivens claim. "[A] court should g r a n t a pro se party every reasonable opportunity to amend." Peņa, 157 F.3d at 9 8 7 n.3 (citations omitted). Acceptable reasons for denying leave to amend 4

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No. 09-11183 in c lu d e "prejudice to the opposing party, undue delay, repeated failure to cure d e fic ie n c ie s with prior amendment, bad faith, dilatory motive and futility of a m e n d m e n t ." Union Planters Nat'l Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5 t h Cir. 1982). Jaramillo-Gonzalez did not state a claim for monetary damages in his in it ia l Rule 41(g) motion. Such an omission does not bar amendment. Monetary d a m a g e s are not available under Rule 41(g), making it futile for JaramilloG o n z a le z to have asserted such a claim. Under similar circumstances, this court h a s held that a defendant was not on notice of his potential Bivens claim until t h e Government confirmed the items sought to be returned had been destroyed. Peņa, 157 F.3d at 987. We AFFIRM the district court's grant of summary judgment as to the r e t u r n of property, VACATE the dismissal with prejudice, and REMAND for p r o c e e d in g s consistent with this opinion.

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