Opinion
5-22-CR-00570-OLG
07-14-2023
UNITED STATES OF AMERICA, Plaintiff, v. (1) CHANDLER BRITAIN BRADFORD, Defendant.
To the Honorable Orlando Garcia, United States District Judge:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Chandler Britain Bradford's Motion to Set Aside Nonjudicial Forfeiture. Dkt. No. 91. This motion was referred for resolution, pursuant to 28 U.S.C. § 636(b)(1). See Mar. 28, 2023, Text Order. The Motion has been fully briefed, and the Court additionally heard oral argument on the matter at the status conference held on March 31, 2023. For the reasons discussed below, the Motion, Dkt. No. 91, should be DENIED.
Factual Background
The parties appear to agree on the relevant timeline. Bradford was arrested on October 4, 2022, and his truck was seized at the same time. The following day, the Federal Public Defender was appointed to represent Bradford. On November 28, 2022, ATF mailed notice to Bradford, at the same address where he was arrested, regarding the commencement of nonjudicial-forfeiture proceedings against the seized truck and other property. FedEx confirmed delivery of this notice to Bradford on November 30, 2022. See Dkt. No. 92-1. The notice explicitly states that any claim must be filed by January 2, 2023, within 35 days of the date of the notice. Id. at 9. Counsel was not separately notified. On November 29, 2022, ATF additionally posted public notice online, indicating that the last date to file a claim would be January 6, 2023. See Dkt. No. 91-1 at 27. But the full legal notice at the first page of the online notice contains the following disclaimer:
You may contest the forfeiture of the property listed below in U.S. District Court by filing a claim not later than 11:59 PM EST 30 days after the date of final publication of this notice of seizure, unless you received a written notice via personal letter in which case the deadline set forth in the letter shall apply.Dkt. No. 92-3 at 5 (emphasis added). Relying on the online notice, counsel for Bradford filed a claim for the 2021 Ford F-150 and other assets on January 5, 2023. ATF denied the claim as untimely and subsequently deemed the assets as administratively forfeited.
Analysis
Bradford alleges a slew of constitutional violations in connection with the seizure of his 2021 Ford F-150 and asks the Court to set aside the nonjudicial-forfeiture proceedings under the All Writs Act, 28 U.S.C. § 1651. See Dkt. No. 91 at 1. The Government responds that 18 U.S.C. § 983(e) provides the exclusive remedy to challenge a nonjudicial forfeiture, and because Bradford received adequate notice of the forfeiture proceedings, no relief is available. See Dkt. No. 92. In reply, Bradford narrows the scope of his arguments to whether counsel must also be notified in forfeiture proceedings, but he does not seriously dispute the relevant statutory framework. See Dkt. No. 93. As a preliminary matter, the Court agrees with the Government's view, supported by the weight of Fifth Circuit case law, that 18 U.S.C. § 983(e) governs Bradford's challenge. See, e.g., Conard v. United States, 470 Fed. App'x 336, 339 (5th Cir. 2012) (“When CAFRA was enacted in 2000, its statutory provisions became ‘the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.'” (quoting 18 U.S.C. § 983(e)(5))). Accordingly, the Court construes Bradford's Motion as one seeking relief under § 983(e), and thus does not reach the merits of his other constitutional arguments.
The district court's scope of review under § 983(e) is limited to “whether the forfeiture comported with constitutional due process guarantees.” Taylor v. United States, 483 F.3d 385, 388 (5th Cir. 2007) (quotation omitted). Thus, if the forfeited property's owner “failed to receive constitutionally adequate notice, the administrative forfeiture is void and must be vacated.” United States v. Robinson, 434 F.3d 357, 362 (5th Cir. 2005). To withstand constitutional scrutiny, the notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the forfeiture action and afford them an opportunity to present their objections.” Id. (cleaned up); accord Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
Bradford does not dispute that he received personal notice on November 30, 2022, which set a deadline of January 2, 2023. Instead, Bradford argues that because he was represented by counsel at the time of notice, ATF “should have, ethically and precedentially, . . . mailed notice to counsel.” Dkt. No. 93 at 5. Bradford thus insists that it was reasonable for counsel to rely on the online public notice's deadline of January 6, 2023. Bradford notes that counsel was notified in both Conard and Taylor, the Fifth Circuit cases cited by the Government. Bradford also relies on the DOJ Criminal Resource Manual and Rule 4.2 of the ABA Model Rules of Professional Conduct regarding communications with a represented party. But Bradford cites no case law in support of his argument that separate notice to counsel is constitutionally required under the Due Process Clause. His arguments are ultimately unpersuasive.
Traditionally, notice to counsel is imputed to the client as well. See Pioneer Inv. Services Co. v. Brunswick Associates Ltd. P'ship, 507 U.S. 380, 397 (1993) (“Each party is deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.” (cleaned up)); Resendiz v. Dretke, 452 F.3d 356, 362 (5th Cir. 2006) (confirming that notice received by counsel is generally imputed to the client). But this does not mean that counsel enjoys an independent right to receive notice. Cf. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (holding that attorneys lacked standing to assert the rights of their indigent clients under the principle that constitutional rights inure to the individual and a party “cannot rest his claim to relief on the legal rights or interests of third parties”). The Court is aware of no cases establishing that lack of notice to counsel negates personal notice. Indeed, the two cases Bradford cites are inapposite. The discussion in Taylor about notice to counsel was largely irrelevant, as the Fifth Circuit based its decision to remand on facts relating to personal notice, including that the DEA agents “knew where Taylor lived” and had even “given him a ride there,” and yet it “sent notice to another address.” 483 F.3d at 389. And in Conard, the Fifth Circuit's discussion on notice revolved around efforts to effectuate personal service. See 470 Fed. App'x at 339 (describing two notices mailed to the residence where Conard was arrested and a third mailed to another residence connected to Conard). In neither case did the Fifth Circuit come close to implying that counsel must be notified in forfeiture proceedings.
Indeed, the statutory language itself is solely concerned with notice to parties with an actual interest in the property subject to forfeiture:
Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person's interest in the property, which motion shall be granted if--
(A) the Government knew, or reasonably should have known, of the moving party's interest and failed to take reasonable steps to provide such party with notice; and
(B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.18 U.S.C. § 983(e)(1). Although Bradford argues that counsel qualifies as “a person required to receive notice,” Dkt. No. 93 at 5, he cites no case or statute for that proposition. Bradford does not assert that counsel has any independent interest in the forfeited assets. Although, as noted above, notice to counsel likely would have satisfied the Government's obligation “to take reasonable steps to provide [Bradford] with notice,” that is not the only reasonable means available.
“Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding.” Mullane, 339 U.S. at 313. Bradford does not dispute that he received written notice of the pending forfeiture proceedings on November 30, 2022. No further notice to counsel was required. Although mailing written notice to counsel of record may be the preferred practice, and perhaps even more so when the defendant is in prison, see Taylor, 483 F.3d at 388-89 (discussing Armendariz-Mata v. U.S. Dep't of Justice, Drug Enf't Admin., 82 F.3d 679, 681 (5th Cir. 1996)), Bradford alleges no such circumstances here. As for counsel's reliance on the online public notice, the Court observes that the full legal notice provides the caveat that, if “you received a written notice via personal letter,” then “the deadline set forth in the letter shall apply.” Dkt. No. 92-3 at 5. It was therefore unreasonable for counsel to rely solely on the online public notice without confirming with the client whether any personal letter was received. Because Bradford received a personal letter providing a deadline of January 2, 2023, and he does not dispute that he had actual notice of the nonjudicial-forfeiture proceedings, the Court concludes that ATF's notice satisfied due process.
Conclusion and Recommendation
For these reasons, pursuant to this Court's review under 18 U.S.C. § 983(e), Defendant received adequate notice of the nonjudicial forfeiture and cannot establish that his due process rights have been violated. Defendant's Motion, No. 91, should therefore be DENIED.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered.
Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b); Fed. R. Crim. P. 59. The objecting party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report bars the party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation bars the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See, e.g., United States v. Young, 585 F.3d 199, 202 (5th Cir. 2009) (noting that when a party fails to object to a magistrate judge's report, the court normally reviews any claim on appeal for plain error); see also Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).
IT IS SO ORDERED.