the additional burden of conducting an independent search to locate the plaintiff in order to ensure proper delivery of the notification letter. Id. at *2. The court found no merit in plaintiff's argument and imposed upon the government no higher burden of responsibility for delivery of notification that occurs four months after seizure than notification that occurs immediately after seizure. Id.
In the present case, the government sent a notification letter with respect to the seized firearms on May 9, 1989, less than two months after seizure. A notification letter with respect to the seized currency was sent on July 3, 1989, less than four months after seizure. Consequently, both notices were timely according to the guidelines previously established within this jurisdiction, and no greater burden of responsibility will be placed upon the government with respect to the method of the delivery of the notification letter.
Therefore, the threshold issue in the present case is not the timeliness of the notification but whether the government's attempts to notify the plaintiff of the seizure constituted legal notification. Courts within this jurisdiction have stated that as long as the government took steps "reasonably calculated to provide notice, the notice requirement will have been satisfied." Id. In Tunstall, the court found that three attempts to deliver a certified letter of notice and publication in the USA Today for three weeks constituted legal notice. Id. at *3. An example of inadequate notice can also be found within this jurisdiction. Torres v. United States, 1988 WL 113366 (Oct. 25, 1988, E.D. Pa.). In Torres, the court found that legal notice had not been established when the letter of notification had the plaintiff's name misspelled on the envelope the government offered no proof that notice had been published in an appropriate publication, and a question of fact existed as to whether the government had correctly identified the proper owner of the seized property. Id.
In the present case, the government has clearly taken steps reasonably calculated to provide notice to plaintiff. First, the government has established that notification was published in the USA Today. Second, the government sent a letter of notice to the plaintiff's last known address less than four months after the seizure. Third, after the first letter was returned unclaimed, the government sent a second certified letter of notification to Graterford SCI where the plaintiff was incarcerated. The government received a signed receipt that the letter had been received and reasonably believed that the plaintiff had chosen not to contest the forfeiture proceedings. Applying the reasonableness test outlined in Tunstall, the government's thorough attempts to notify the plaintiff constituted legal notice.
Title 19 U.S.C. § 1608 stipulates that a party has twenty days from the date a notice of seizure is first published in a local and national publication to contest the forfeiture. This time frame, however, supposes that the property owner has already received the notification letter and is aware that his property has been seized. In the case at bar, the government realized that the plaintiff had not received a notification letter prior to the notice being published in the newspaper and, therefore, extended the time period in which the plaintiff could respond. Rather than require the plaintiff to respond within twenty days of initial publication of the notice in the newspaper, the government allowed the plaintiff twenty days from the time he received the notification of seizure letter. Consequently, the plaintiff's legal remedy was to challenge the forfeiture through the administrative proceeding, rather than through a Rule 41(e) motion, and the appropriate steps were outlined in the letter of notification sent to the plaintiff by the government. By failing to act in a timely manner, the plaintiff effectively waived his right to challenge the forfeiture of his property. As a result, the appropriate administrative forfeiture proceedings commenced with the government's notification letter to the plaintiff and terminated when the plaintiff failed to challenge the forfeiture. Because the plaintiff failed to pursue the proper legal remedy, contesting the forfeiture through the proper administrative channels, the Rule 41(e) motion now before the court will be dismissed.
Even if this court accepts the plaintiff's contention that he never received the notification letter sent to the prison, the plaintiff did receive unofficial notice from his wife that his property had been seized. The record indicates that on March 20, 1989, just six days after the seizure, the plaintiff received a letter form his wife which informed him that the government had seized the currency and firearms. Therefore, regardless of the legality of the government's letter of notification, it appears that the plaintiff abandoned his property because he waited four years to initiate legal action. Courts have held that two years is a sufficient amount of time for a person who has not received official notice of seizure, but, nevertheless, knows his property has been seized, to make an effort to retrieve his property. Tunstall, 1991 U.S. Dist. LEXIS 4039, 1991 WL 46329 at *3. It may be argued that the court should grant Hill, who is incarcerated, more leniency than was granted the plaintiff in Tunstall, who was not incarcerated. Hill, however, through the filing of this action, has demonstrated that the legal remedies for the return of his property were available to him even though he was incarcerated.
In effect, regardless of the legality of the notification letter, the plaintiff is estopped from bringing this action due to the four year lapse between the time he first learned of the seizure and the time he commenced action to regain his property. Id. (where the plaintiff fails to take action within two years of constructive notice of seizure, a motion pursuant to Rule 41(e) will be dismissed).
Consequently, because the government's letter of notice was timely and legal and because the plaintiff waited too long to bring this action, the plaintiff's Rule 41(e) Motion For Return of Seized Property will be dismissed.
An appropriate Order follows.
Clarence C. Newcomer, J.
AND NOW, this 1st day of July, 1993, upon consideration of plaintiff, James Hill, Jr.'s, Motion for Return of Seized property, and defendant's response thereto, and consistent with the foregoing Memorandum, it is hereby ORDERED that plaintiff's motion is DENIED and this case is DISMISSED. The clerk's office shall mark this action closed.
AND IT IS SO ORDERED.
Clarence C. Newcomer, J.
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