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United States v. Brome

United States Court of Appeals, Second Circuit

November 7, 2019

UNITED STATES OF AMERICA, Appellee,
v.
JAMES BROME, AKA TROUBLE, AKA B, Defendant-Appellant. [*]

          Argued: April 12, 2019

         James Brome appeals from an order of the United States District Court for the Western District of New York (Siragusa, J.) denying his challenge to the administrative forfeiture of $21, 019. In this opinion, we address and reject Brome's argument that the Government failed to provide him with adequate notice of the administrative forfeiture action while he was in prison, in violation of his due process rights. We hold that the Government generally must demonstrate the existence of procedures reasonably calculated to ensure that a prisoner receives notice of the forfeiture action. In a separate summary order filed simultaneously with this opinion, we dispose of Brome's remaining challenge to the District Court's denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). AFFIRMED.

          Steven Y. Yurowitz, Newman & Greenberg LLP, New York, NY, for Defendant-Appellant James Brome.

          Sean C. Eldridge, Assistant United States Attorney (Mary C. Baumgarten, Assistant United States Attorney, on the brief), for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Rochester, NY, for Appellee United States of America.

          Before: CALABRESI, LIVINGSTON, and LOHIER, Circuit Judges.

          PER CURIAM:

         James Brome appeals from an order of the United States District Court for the Western District of New York (Siragusa, J.) denying his challenge to the administrative forfeiture of $21, 019 found in his pocket upon arrest. In this opinion, we address and reject Brome's argument that the Drug Enforcement Administration (DEA) failed to provide him with adequate notice of the administrative forfeiture action while he was in prison, in violation of the Due Process Clause of the Fifth Amendment. We hold that the Government generally must demonstrate the existence of procedures reasonably calculated to ensure that a prisoner receives notice of the forfeiture action. In a separate summary order filed simultaneously with this opinion, we dispose of Brome's remaining challenge to the District Court's denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2).

         BACKGROUND

         Shortly after midnight on September 12, 2010, a police officer with the Lyons Police Department in Wayne County, New York stopped a car driven by Brome's common-law wife with Brome in the passenger seat. After running identification checks, the officer learned that neither Brome nor his wife had a valid driver's license and that Brome was on parole for a felony weapons conviction. Both Brome and his wife were asked to step out of the car and were patted down for weapons. The officer seized $21, 019 in cash from Brome's pockets.

         For reasons not relevant here, the local district attorney's office declined to proceed with a state forfeiture action relating to the seized cash, and on October 7, 2010, the DEA adopted the seizure and proceeded with a federal forfeiture action under 18 U.S.C. § 983 and 19 U.S.C. § 1607. Consistent with these statutory provisions, the DEA attempted to send notice of its forfeiture to Brome. On November 3, 2010, the DEA mailed notice to Brome's last known home address, but the mail was returned unopened. Notice of the cash seizure was also published in the Wall Street Journal three times in three consecutive weeks that same month.

         On November 30, 2010, the DEA arrested Brome on state narcotics charges, and he was detained in the Wayne County jail facility. That same day, the DEA sent notice of the forfeiture again to Brome's home address. On December 27, 2010, it sent notice by certified mail and first class mail to Brome in the Wayne County jail where he was actually located. The notice mailed to the jail incorrectly listed the date of seizure as October 7, 2010, rather than the actual seizure date of September 12, 2010.

         By February 22, 2011, Brome had not filed a claim for the seized cash, so the DEA administratively forfeited it under federal law. In May 2011 a federal grand jury indicted Brome for conspiring to possess with intent to distribute cocaine and cocaine base, and the state charges against him were dropped.

         Over two years later, on September 16, 2013, Brome, proceeding pro se, moved in the District Court pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure for the return of the seized cash. The District Court denied the motion, and Brome appealed. Construing Brome's motion as a challenge to the sufficiency of the DEA's notice, a panel of this Court vacated the District Court's denial and instructed it on remand to determine in the first instance whether the notices had been adequate. See United States v. Brome, 646 Fed.Appx. 70, 73 (2d Cir. 2016).

         On remand, the Government submitted an affidavit from an officer employed at the Wayne County jail where Brome was detained. The affidavit described the inmate mail logging and distribution system in operation there at the time the DEA attempted to send notice to Brome and explained that an officer would distribute the mail by calling the name of each inmate who received mail on a particular day. Def. App'x 74-75. Attached to the affidavit was a printout of the mail log for ...


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