UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


LOPEZ, RAMON

v.

UNITED STATES


98-5082a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: Ramon Lopez, an inmate in a  federal prison,
brought suit against the Drug Enforcement  Administration, alleging
that the agency failed to make an  adequate effort to notify him of a
forfeiture proceeding it had  initiated against property he claims to
own. The DEA sent  two notices to Mr. Lopez--one to his home and one
to a  prison address--both of which were returned to the agency.  One
year later Mr. Lopez learned of the forfeiture proceeding  through his
wife, who had been separately notified by the  DEA.


After the DEA denied as untimely his petition for remis- sion or
mitigation of the forfeiture, Mr. Lopez filed a com- plaint in the
district court alleging the DEA denied him due  process of law by
failing to notify him of the forfeiture  proceeding. The district
court granted summary judgment in  favor of the DEA, concluding that
the agency had met its  statutory and constitutional duty to notify
Mr. Lopez of the  forfeiture by sending notices to him and to his
wife. Because  the DEA, when the notices sent to Mr. Lopez were
returned,  made no further effort to notify him although it knew he
was  in prison, and because notice to his wife is not, on the facts of
 this case, notice to him, we reverse the judgment of the  district
court and remand this matter for further proceedings.


I. Background


While Ramon Lopez was in the Martin County, Florida jail  on a
narcotics trafficking charge, he and his wife Alix Coba* 




__________

n * Amicus curiae appointed by this Court to represent Mr. Lopez  on
appeal points out that the couple actually were not married, nor 
could they have been considered married at common law because  Florida
does not recognize a common law marriage entered into  after January
1, 1968. See Fla. Stat. ch. 741.211. Mr. Lopez,  however, refers to
Ms. Coba as his wife, and both the district court  and the Government
considered the couple to be married. For the  purposes of this appeal,
therefore, we too treat Mr. Lopez and Ms.  Coba as husband and wife.


agreed to pay $50,000 to an official who would let Mr. Lopez  post bond
on a lesser charge. According to the Government,  the payee was an
"undercover law enforcement agent posing  as a Deputy U.S. Marshal."
The couple were convicted under  federal law of attempted escape, and
the DEA seized the  $50,000, claiming it had reason to believe that
Mr. Lopez had  obtained the money through the sale of illegal


In March, 1993 the DEA sent notices of seizure to Mr.  Lopez both at
his last known home address and at the Dade  County Jail in Miami,
Florida. Mr. Lopez states that he was  never incarcerated in the Dade
County Jail and the Govern- ment offers no explanation for having sent
the notice there.  In any event, both notices were returned to the DEA
marked  "RETURN TO SENDER." The DEA also sent to Ms. Coba,  as a
potential claimant in her own right, a notice of seizure,  which she
accepted, and it published a notice of the seizure in  USA Today once
a week for three consecutive weeks. The  DEA did not receive any
response to its notices and in May,  1993 it declared the $50,000
forfeited to the United States.


Mr. Lopez claims that he did not learn of the forfeiture  until March
or April, 1994, when Ms. Coba showed him the  notice she had received,
and that immediately thereafter he  petitioned the DEA for relief from
the forfeiture. The DEA  dismissed Mr. Lopez's claim as untimely.


Mr. Lopez sought review in the district court, which grant- ed summary
judgment in favor of the DEA. The court held  that the agency had
satisfied its statutory and constitutional  obligations by sending
notices of seizure to "interested par- ties" via certified mail. The
district court also imputed to Mr.  Lopez the notice of seizure
received by Ms. Coba, who  "allegedly had dominion and control over
the money in ques- tion" at the time of the crime.


Mr. Lopez appeals. We review the district court's grant of  summary
judgment de novo. See National Treasury Em- ployees Union v. United
States Customs Service, 27 F.3d 623,  626 (D.C. Cir. 1994).


II. Analysis


The DEA seized Mr. Lopez's money pursuant to 21 U.S.C.  s 881(a)(6),
which authorizes the administrative forfeiture of  property furnished
or obtained in exchange for a controlled  substance. A forfeiture
proceeding is initiated under 19  U.S.C. s 1607(a), which requires the
Government to send a  written notice of forfeiture to each party who
may have an  interest in the seized property and to publish notice of
its  intent to seize the property in a newspaper of general circula-
tion once a week for three consecutive weeks. A potential  claimant
then has 20 days in which to file a claim and to post  a bond. See 19
U.S.C. s 1608.


The Due Process Clauses of the Fifth and Fourteenth  Amendments to the
Constitution of the United States require  notice that is "reasonably
calculated, under all the circum- stances, to apprise interested
parties of the pendency of the  action and afford them an opportunity
to present their objec- tions." Mullane v. Central Hanover Trust Co.,
339 U.S. 306,  314 (1949). Taken together, the steps required by 19
U.S.C.  s 1607(a) generally provide all the notice required for due 
process. See id. at 317-18.


In this case, the DEA complied with the statute by sending  notices to
Mr. Lopez at his home address and at prison and  by publishing a
notice of the proposed seizure in USA Today  for three consecutive
weeks. When both of the notices were  returned to the DEA, however,
the agency took no additional  steps to determine Mr. Lopez's
whereabouts despite its  knowledge that Mr. Lopez was in the custody
either of the  State of Florida or of the Attorney General of the
United  States; that is, he was in one prison system or the other, as 
the DEA very well knew.


In these circumstances, the DEA's efforts to notify Mr.  Lopez directly
were inadequate to afford him due process of  law. After learning that
the two notices sent to Mr. Lopez  were not delivered, the agency
should have attempted to  locate him within the prison system. We made
this clear in  Small v. United States, 136 F.3d 1334, 1337-38 (D.C.
Cir.  1998)--a decision issued after the forfeiture at issue in this 
case--where we held that the Government should have resent 


notice of a forfeiture proceeding to a claimant when the initial 
notices it sent to the claimant's home and to a prison--the  wrong
prison, as it happened--were returned:


[W]hen the government knows (or can easily ascertain)  where a person
may be found, it must direct its notice  there....


....


... [I]f ... the government knows that a claimant is in  prison, it ...
can easily ... find out whether the prison- er has been moved or
released (and if so, to what  address), or whether some problem at the
prison pre- vented delivery.


Recognizing the inadequacy of the DEA's efforts to notify  Mr. Lopez
directly, the Government argues that the notice  the DEA sent to Ms.
Coba was also "reasonably calculated"  to reach Mr. Lopez because they
were, or "appeared to all the  world" including the DEA, to be
married. To Mr. Lopez's  observation that a marital relationship is
not enough by itself  to make one spouse the agent of the other for
the purpose of  receiving notice, the Government responds that an
agency  relationship is not required and that in any event, Ms. Coba 
had apparent authority to accept the notice on behalf of Mr.  Lopez in
view of her participation in the attempted escape  and the "the
alignment of her interest with his."


The Government's argument fails for two reasons. First,  the notice
sent to Ms. Coba concerned only her own interest  in the money; it
neither mentioned Mr. Lopez nor gave any  indication that Ms. Coba
should notify him or any other  person who may have had an interest in
the money. The  absence of any suggestion that the notice was sent for
a  purpose other than informing Ms. Coba of her own interest in  the
proposed forfeiture renders the notice facially deficient as  to Mr.
Lopez, regardless whether Ms. Coba was his agent for  the service of
process. Cf. United States v. Marolf, 173 F.3d  1213, 1215, 1217 (9th
Cir. 1999) (noting that Government  acknowledged notice was
insufficient where Government noti-


fied co-defendant but failed to notify claimant after discover- ing his
interest in same property).


Second, Ms. Coba's control over the money during the  attempted escape
did not cloak her with apparent authority to  act for Mr. Lopez in
all, or perhaps any, subsequent matters  involving the money. Apparent
authority is "the power to  affect the legal relations of another
person by transactions  with third persons, professedly as agent for
the other, arising  from and in accordance with the other's
manifestations to  such third persons." Restatement (Second) of Agency
s 8  (1958). Apparent authority arises "only to the extent that it  is
reasonable for the third person dealing with the agent to  believe
that the agent is authorized." Id. cmt. c.


The Government has not alleged any facts that made it  reasonable for
the DEA to believe that Ms. Coba was Mr.  Lopez's agent for the
purpose of receiving the notice of  forfeiture. Even if Mr. Lopez had
vested Ms. Coba with  apparent authority to transfer his $50,000 to
the marshal  during the attempted escape, something more would be re-
quired before one reasonably could say that Mr. Lopez mani- fested his
intention that Ms. Coba act as his agent for any  other purpose. Cf.
United States v. $184,505.01 in U.S.  Currency, 72 F.3d 1160, 1164 (3d
Cir. 1995) (notice of forfei- ture given to attorney who represented
prisoner only in  unrelated suit cannot be imputed to prisoner). The
argument  for apparent authority is further weakened by the nearly
four  month interval between Ms. Coba's delivery of the money and  the
DEA's initiation of a forfeiture proceeding. Assisting  another in a
failed attempt to escape is hardly the type of  ongoing activity from
which one might reasonably infer con- tinued authority to act on
behalf of the would-be escapee. Cf.  Bye v. United States, 105 F.3d
856, 857 (2d Cir. 1997) (notice  of forfeiture sent to attorney
constitutionally sufficient when  attorney represented prisoner in
ongoing and related pro- ceedings).


The Government attempts to bolster its argument for  apparent authority
by invoking general principles of agency  between husband and wife.
Thus, the Government notes that 


although, according to the Restatement (Second) of Agency,  "[n]either
husband nor wife by virtue of the relation has  power to act as agent
for the other," the same authority  states that "[t]he relation is of
such a nature ... that  circumstances which in the case of strangers
would not  indicate the creation of authority or apparent authority
may  indicate it in the case of husband or wife." Id. s 22 cmt. b. 
According to the Government, because Ms. Coba was Mr.  Lopez's wife
and because "she had already acted on his  behalf, at her own peril,
with regard to the very same $50,000  at issue, DEA had good reason to
expect that notice to her  would find its way back to [Mr. Lopez]."


The Government's argument misses the mark. A wife does  not become the
agent of her husband by once taking a risk on  his behalf. Rather, it
is a course of conduct that may give  rise to the apparent authority
of one spouse to act on behalf  of the other. As the Restatement
explains:


[A] husband habitually permitted by his wife to attend to  some of her
business matters may be found to have  authority to transact all her
business affairs. Likewise,  if a wife is customarily permitted by her
husband to  order household supplies, authority or apparent authority 
on her part to purchase things needed in the household  can be readily
inferred.


Id. Although the examples might benefit from some modern- ization, they
make the point clearly enough: An act routinely  performed by one
spouse for the other may give rise to  apparent authority for that
spouse to perform the same or a  closely related act. The Restatement
does not support the  Government's contention that Ms. Coba's single
act of trans- ferring Mr. Lopez's money vested her with apparent
authori- ty to receive for her husband notice that the money is
subject  to forfeiture. We therefore hold that Ms. Coba did not have 
apparent authority to receive the notice of forfeiture for Mr. 


III. Conclusion


For the foregoing reasons, we reverse the order of the  district court
granting summary judgment for the Govern-


ment. This matter is remanded to the district court for  further
proceedings on the merits of Mr. Lopez's challenge to  the forfeiture
of his property.


So ordered.