Case of the Day: United States v. 200 Acres of Land

The case of the day is United States v. Real Property Known as 200 Acres of Land Near Farm to Market Road 2686, Rio Grande City, Texas (S.D. Tex. 2012). The government alleged that Carlos Alberto Oliva-Castillo, apparently also known as Carlos Ricardo Tirado Tamez, was the owner of a 200-acre parcel that he bought using proceeds from drug trafficking.

Civil forfeiture proceedings are governed by 18 USC § 895(c), which provides:

(1) The Government shall initiate a civil forfeiture action against real property by—

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(C) serving notice on the property owner, along with a copy of the complaint.

(2) If the property owner cannot be served with the notice under paragraph (1) because the owner—

(A) is a fugitive;

(B) resides outside the United States and efforts at service pursuant to rule 4 of the Federal Rules of Civil Procedure are unavailing; or

(C) cannot be located despite the exercise of due diligence,

constructive service may be made in accordance with the laws of the State in which the property is located.

The government moved for a finding that it had actually or constructively served process on Tirado, who was in Mexico. The magistrate judge recommended that the motion be denied but that the government be permitted to make service under the Texas Rules of Civil Procedure’s procedure for constructive service by publication. Tirado objected to the magistrate judge’s recommendation and asserted that the government had not even attempted service under the Hague Service Convention, and thus that the provision of the statute permitted constructive service in accordance with Texas law could not be brought into play. But the judge noted that the government had made several efforts to locate and serve process on Tirado, including by a request for judicial assistance to the Mexican government under the US/Mexico MLAT, and that Tirado’s whereabouts nevertheless remained unknown. Thus the Hague Service Convention was inapplicable.

This seems right, but I am surprised the government did not seek leave to serve process by alternate means, namely by service on Tirado’s US lawyer, who had appeared in the action, under FRCP 4(f)(3). Surely that method of service is more likely to result in actual notice than service by publication.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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