Dusenbery, Larry D. v. U.S. (01/08/2002)

By: Douglas Kiker, Medill News Service

Questions presented

Must an inmate receive ""actual notice"" of the forfeiture action the government is taking on his property, or is the mailing of notice to the prison sufficient?

Brief

Larry Dusenbery says he never got the government's certified letter informing him that agents were going to seize his 1984 Chevrolet Monte Carlo and $22,000 in cash that prosecutors say were proceeds from illegal drug dealing.

On April 26, 1986, Dusenbery was arrested in Michigan on drug and weapons charges. While searching Dusenbery's property at the time of his arrest, police officers seized the cash and his car.

Prosecutors said that since Dusenbery had not had a real job in more than two years, the money and Monte Carlo were the products of his drug dealing. Under federal law, prosecutors are allowed to sell the illegally-gained assets of a convicted criminal in order to recoup the cost of prosecution, as well as for fines and civil penalties.

Prosecutors, following standard practice, sent a certified letter to the prison where he was serving time. According to an affidavit and later deposition, a prison mail room worker said he signed the certified letter form and then followed the process of forwarding mail to inmates like Dusenbery.

Dusenbery says he never received the letter, but each federal court to hear his case has refuted this claim.

Initially, Dusenbery filed a motion with a federal district court asking that his property be returned. That motion was denied.

When Dusenbery appealed to the 6th Circuit Court of Appeals, it remanded the case back to the lower court, directing it to ""determine whether the government provided Dusenbery with actual notice of the various forfeitures.""

In essence, the appeals court told the lower court to determine if the government had tried hard enough to let Dusenbery know his car and money had been seized.

During subsequent hearings, the district judge determined that the seizure would be allowed if the government could prove conclusively that Dusenbery's assets came fom his drug trade. During the hearings, Dusenbery admitted that the car and money were, indeed, the products of his admitted drug dealing.

The judge found that the prison was ""reasonably calculated to notify Dusenbery of the forfeiture action"" and that since Dusenbery admitted in the trial purchasing the car with drug money, he had no right to sue for its return.

In his appeal, Dusenbery claimed his 5th Amendment due process right was violated when the government took his car and money without making sure he was properly notified.

In a per curiam decision, the 6th Circuit Court of Appeals threw out Dusenbery's case, saying that it was not the burden of the government to prove the letter was actually delivered to Dusenbery.

""This court does not require that the government to show that the mail reached an inmate in order to satisfy requirements of due process,"" the court wrote.

Further, the court said the government had proven that Dusenbery was indeed provided adequate notice of the seizures when the certified letter was delivered, and signed for, by the Michigan prison.

""The government has provided persuasive evidence that a prison mail room employee signed the certified mail receipt,"" the court wrote.

Federal appeals courts have not been consistent on the issue of informing prisoners of the seizure of assets. Some courts have ruled that a prisoner must be given ""actual notice"" before assets are seized. The 6th circuit said in Dusenbery's case that prisoners were not entitled to ""actual notice.""

On Feb. 26, 2001, the U.S. Supreme Court granted Dusenbery's petition for certiorari, which he filed pro se, limited review to question 1 in his petition and allowed him to proceed in forma pauperis.

One month later, the Court appointed Allison M. Zieve, of Washington, D.C., as Dusenbery's counsel.

On Jan. 8, 2002, the Court divided along ideological lines held 5-4 that due process was satisfied when notice of the forfeiture action against Dusenbery was mailed to the prison.

Chief Justice William Rehnquist wrote the majority opinion. The dissent written by Justice Ruth Bader Ginsburg was joined in by Justices John Paul Stevens, David Souter, and Stephen Breyer.