Author: John Collette
Company: Alaska Works Engineering

THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN COLLETTE
                      Plaintiff-Appellant

              v.

DRUG ENFORCEMENT ADMINISTRATION; UNITED STATES MARSHALS SERVICE; AND UNITED STATES OF AMERICA 
                    Defendants-Appellees

No. 05-36110
D.C. No. CV-00-0254-F-RRB

APPELLANT'S OPENING BRIEF

	Comes now, Plaintiff-Appellant John Collette appearing pro-se, hereby Appeals from a final order from the United States District Court for the State of Alaska, Hon. Ralph Beistline presiding.  This Court may review the decision of the lower court if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or the action failed to meet statutory, procedural, or constitutional requirements.  Partridge v. Reich 141 F.3d 930,923 (9^th Cir. 1998).  This court may also review the factual record if a lower court exceeds its authority in making findings of fact on testimony heard by a precursor judge. Patelco Credit Union v. Sahni 262 F.3d 897, 905 (9^th Cir. 2001).

I.				PROCEDURAL HISTORY
	The case was originally filed under the Federal Rules of Criminal Procedure Rule 41(e) in 1998 stemming from a series of forfeiture actions and other property losses caused by the government during the course of the seizure and forfeiture of various properties owned by Appellant.  The majority of seizures and forfeitures, the subject of the issues herein, were undertaken in 1992.  The property actions were conducted in parallel with the federal criminal prosecution for various marijuana growing violations.  The original case under Rule 41(e) and was dismissed by the District Court due to its opinion that the criminal rules failed to provide a statutory framework for the return of properties unlawfully taken in the course of a criminal prosecution.  This was in clear violation of this circuit’s ruling in United States v. Martinson 809 F.2d 1364, 1366-67 (9^th Cir. 1987).   Rather than appealing, Plaintiff filed three new actions in the year 2000 concerning the same claims under 28 U.S.C. 1331 and 5 U.S.C. 701 et seq.  These cases were later joined under the case number above.  
	The District Court ruled that the issues found in the three separate actions should be dealt with separately.  The issues concerning due process for the administrative forfeitures undertaken by the Drug Enforcement Administration, the subject of the first case filed under 28 U.S.C. 1331, was to be heard first.  This bifurcation of claims set aside for future consideration the complex claims involving the loss of possessions to outright theft, the failure of government to safeguard the value of property in its possession, the loss of enjoyment and profit from business and real properties seized unconstitutionally, and other claims.  Accordingly, an eight-day evidentiary hearing was held in May of 2004 concerning whether the DEA had provided adequate notice for 21 administrative forfeitures undertaken against properties owned by Appellant.  The remaining claims have yet to be heard.
	The evidentiary hearing was held before the Hon. Magistrate Joseph Miller.  Magistrate Miller resigned his position two weeks after the hearing without issuing findings of fact and conclusions of law. ^1  The case was then directly overseen by the District Court, the Hon. James K. Singleton presiding.  Judge Singleton, faced with deciding the complex issues while not having heard the evidence, promptly called for a new evidentiary hearing.  But lacking a supporting motion from either party, the District Court was compelled to withdraw its demand for a new hearing.  Judge Singleton then assigned the case to another District Court Judge, the Hon. Ralph Beistline.  Judge Singleton retired shortly thereafter.

^1 Magistrate Miller subsequently filed for a seat in the Alaska House of Representatives as a Republican, and lost the general election to the incumbent.

	After the evidentiary hearing but before he resigned, Magistrate Miller ordered transcripts of the hearing to be distributed to the parties.  Upon receiving the transcripts, some three weeks after the government received its copy, Appellant discovered the most compelling evidence he was able to present to the Court was absent.  The transcript was missing a substantial portion of the testimony of a government witness, a United States Marshal who was responsible for overseeing on behalf of the court real and business property owned by Appellant.  The part missing from the transcripts was the impeachment of the Marshal after he claimed that the Marshals had not interfered with the delivery of Appellant's mail after they had seized his home and business.  
The impeachment of this witness was possible because Appellant had recorded the Marshal's deposition, separately from the court reporter and outside the knowledge of the government or the witness.  Magistrate Miller ruled that Appellant's recording could be played for the record.  The deposition recording unequivocally proved the witness had lied in open court about the most material issue in the case, i.e. whether the Marshals had actively interfered with the delivery of mail to Appellant during the period when he should have been receiving notices from the DEA concerning the administrative forfeitures.  
Magistrate Miller announced he was taking action against the Marshal for his apparent perjury, but the effort died when the Magistrate resigned.  Appellant is unaware of any charges being filed or any action taken against the Marshal by the court.  After Appellant's notice to the court about the missing section of the transcripts and then briefing the issue, the District Court ruled that the entire deposition of the miscreant Marshal should be allowed into the record. 
In the District Court's wholesale approach of denying the current claims, it also dismissed with prejudice the numerous claims in the last two of the three originally filed actions.  Although the remaining claims in the bifurcated case were able to withstand multiple summery judgment motions by government, the claims were nonetheless dismissed by the District Court without the benefit of briefings or hearings. 

II.			FACTUAL HISTORY OF THE CASE
 The forfeitures and seizures in question were undertaken by the federal government in conjunction with criminal prosecution for marijuana growing, among other related offenses, in October of 1992.  Appellant Collette's personal property, business property, and real property were seized and forfeit by the government in 1992 and 1993.  Appellant’s home and business were seized and he and his family were excluded from occupancy.  His business, owned jointly by husband and wife, Happy Greek Greenhouses, a producer of commercial roses and greenhouse vegetables, was also seized and the owners immediately excluded.  While the home and business were in the direct control of the United States Marshals, the Marshals hired Appellant's former employees to maintain the business and to preserve its value on behalf of the court.  Shortly after taking possession of the real property, the Marshals, believing that the business's mail was insecure when delivered to the rural mailbox where the Appellant's family and business received their mail, hired a post office box and redirected the mail with a change of address order to the United States Post Office, thereby preventing Appellant from using his mailing address and mail box had had used for the previous 25 years.  The Marshals then opened a bank account and hired a manager to oversee the business.  The Marshals provided the hired manager one of two keys to the post office box to receive mail.  The U.S. Marshals operated the business until it was sold approximately eighteen months after the seizure. 
In addition to the real property seized and forfeit, bank accounts, both personal and business, and two airplanes were seized, one of which was hand-built by Appellant.  Also seized were some horticultural equipment, along with boats, motors, snowmobiles, a dump truck, tractor, and other smaller items.  Some of the items taken were relegated to the business and subject to in rem forfeiture undertaken against it, and some were forfeit by the DEA, leaving a hodgepodge of civil actions, both in rem and administrative, to sort through.  Many items removed went missing and were never accounted for. 
Appellant was arrested by federal agents and flown from Fairbanks to Anchorage and incarcerated there until his release under third-party custody bail conditions some five weeks after his arrest.^2  The day following his release at the residence of his third- party custodian in Fairbanks Appellant participated telephonically in a hearing where the government asked the court to review the source of funds used the bail bond, because, as the government alleged, the funds were from drug proceeds.  During the hearing Appellant entered into the record the source of funds used to purchase bail by reading 55 of 85 names of persons who had donated funds to be used in Appellant's and Appellant's family defense.  The total donated was over $40,000.00.  The Magistrate found that the funds used for bail were from "a community donation" and ruled the funds were from sources adequate to support continued bail.  See Evidentiary Hearing Government Exhibit II.

^2 This bail condition is unique to Alaska where a defendant is released to a third-party after review by the court.  The defendant is required to be within "sight and sound" of the custodian 24 hours per day on pain of arrest.  The defendant is not allowed to work, to live with family not his appointed custodians, and his place of residence is subject to random searches without warrant. See Government Exhibit X

The following day, federal agents appeared before a different Federal Magistrate in a different city and swore before him that the funds used to purchase Appellant's bail were from unlawful sources.  With the seizure warrants obtained, the agents proceeded to remove nearly $20,000 from the bank account of the bail bondsman and a bank account managed by a third party known as the "John and Kay Collette Defense Fund." See Evidentiary Hearing Plaintiff’s Exhibit 10. Appellant was able to avoid immediate incarceration by providing the court with further assets pledged by others. 
Appellant was later jailed for allegations of not adhering to his bail conditions, and then released again six weeks later after a hearing before the District Court judge.  Appellant was released to a new third-part custodian at a different address in Fairbanks.  Shortly before trial on the criminal charges, the Appellant fled the country.  He returned eighteen months later to avail himself of double jeopardy protections under the then-recent rulings from this Circuit.  Following the Supreme Court's decision overturning this Circuit, Appellant was convicted of the marijuana charges in 1997.  The instant claims were filed when Appellant was in the custody of the Federal Bureau of Prisons.  He was released in 2002.

III.					     Arguments
                                                                Introduction
Appellant appeals from a District Court decision dismissing his claims for the return of property with prejudice.  Along with the claims contained in the first action, those dealing with the DEA notices for administrative forfeitures, the District Court also dismissed the remaining claims without benefit of briefing or hearing.  The District Court's decision as a whole is an extreme example of an abuse of discretion and should be reversed in its entirety.  
Furthermore, this Court should direct either the United States Attorney for Alaska or the District Court to proceed against the United States Marshal who was caught in open court introducing testimony he knew to be materially false.  It is also clear from the record that the Assistant United States Attorney representing the government is clearly guilty of suborning the Marshal's perjury, and that together, they conspired to obstruct justice.  The integrity of the judicial process requires those who hold the court in such open contempt be identified and corrected. 
Where the government provides constitutionally deficient notice of an administrative forfeiture, courts of appeals have generally voided such actions and remanded for further proceedings. See, e.g., Muhammed v. DEA, Asset Forfeiture Unit, 92 F.3d 648, 654 (8th Cir. 1996); Barrera-Montenegro v. United States, 74 F.3d 657, 661 (5th Cir.1996); United States v. Giraldo, 45 F.3d 509, 512 (1st Cir.1995).  This Circuit has already held that a district court retains equitable jurisdiction to adjudicate claims of inadequate notice of administrative forfeitures. See United States v. Clagett, 3 F.3d
1355, 1356 (9th Cir. 1993); see also Marshall Leasing, Inc.v. United States, 893 F.2d 1096, 1102-03 (9th Cir. 1990) (district court had jurisdiction over due process attack on administrative forfeiture under 28 U.S.C. S 1331); United States v. Ten Thousand Dollars ($10,000) in U.S. Currency, 860 F.2d 1511, 1513 (9th Cir. 1988) (accidental, fraudulent, or improper removal of property will not extinguish district court's in rem jurisdiction).. also United States v. Marolf  973 F. Supp. 1139 (C.D. Cal. 1997), 173 F.3d 1213 (9^th Cir. 1999)
III A.	 The most glaring error in the district court decision is its failure to consider that the United States Marshals interfered directly in the normal delivery of mail to Appellant while the DEA was attempting to notify him of its administrative forfeitures. 
Remarkably, the district court in finding the DEA, if only by a hairsbreadth, provided Constitutional notice to Appellant, also found, as the Court was forced to by voluminous testimony, that the United States Marshals controlled Appellant's mail during the notice period and prevented delivery of many notices mailed from DEA headquarters in Washington. D. C.  The administrative forfeitures directly affected by the Marshals’ interference involve 14 of 20 administrative forfeitures under review. 
While giving a polite bow to Mullane v. Central Hanover Bank & Trust 339 U.S. 306 (1950) the District Court entirely misread the requirement that:
 "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.   
					Mullane at 314, 339 U.S. 306

Under the "all the circumstances" test of Mullane if one agency of government provides adequate due process while another agency actively interferes with the process attempted by the first, then the result cannot be deemed Constitutional.  If government cannot be held accountable for its actions as a single entity, but instead, may excuse itself because one agency interfered with the good intentions on another agency, then no measure of accountability is possible.  In finding that due process was adequate, if barely, the district court mistakenly found that both the DEA, the noticing agency, and the United States Marshals, the agency which controlled Appellant’s mail during the period of notice, represented separate sovereigns, each agency wearing its own crown. 
In making this argument, Appellant does not concede the DEA showed good faith in carrying out its notice responsibility.  On the contrary, many notices to Appellant were sent to addresses where he was known not to be.  Aero-Medical Inc. v. United States 23 F.3d 328 (10^th Cir. 1994) (found it unreasonable for government to ignore information in its possession and deliberately mail notice to invalid address.)  Since Appellant was available during the notice period, either in jail due to criminal charges, or free on bail and in the custody of his court appointed third-party custodian, his current address was known to the court, and if it had bothered to inquire, to the government at all times.^3  United States v. Real Property 135 F.3d 1312  (9^th Cir. 1998) (when the government can reasonably ascertain the address of a claimant, it is obligated to do so); Foehl v. United States 238 F.3d 474, 481 (3^rd Cir. 2001) (when the defendant is released to an address known to the government, due process requires that government notify defendant at that address [of a pending administrative forfeiture action); Krecioch v.United States 221 F.3d at 976, 980 (7^th Cir. 2000) (due process is not satisfied if the notifying party knew or had reason to know that notice would be ineffective) (quoting Sarit v. United States Drug Enforcement Admin., 987 F.2d 10, 14 (1st Cir.1993); Also Covey v. Somers 351 U.S. 141, 100 L.Ed. 1021 (1956) (lawful notice standard under custodial conditions in foreclosure action).

^3 See Order Setting Condition of Release, Evidentiary Hearing Government Exhibit X

This case is distinguishable from a leading decision of this Circuit, Marolf,  because there, the government made no attempt to locate the known owner of a seized sailboat.  Here, notices were sent, but the vast majority to addresses where Appellant was guaranteed not to be.  Those notices sent to Appellant’s home address where they had great likelihood of being received, were intercepted by the Marshals who entirely controlled his home, business, mailbox and mailing address.  Here, meaningful due process was absent no matter how great the proliferation of mailings if the addresses used were defunct, never useful, or entirely controlled by government.  
III B.	In its opinion the district court finds that the Marshals controlled Appellant's business, home and his mailbox, and further, that a change of address order was submitted to the post office to forward mail from Appellant’s address, 2960 Ester Dome Road, to a newly opened post office box hired by the Marshals.  
Nonetheless, the district court fails to draw the required conclusion under the Mullane standard.  Appellant and his then wife, Kay Kindt, testified that following the change of address order on November 2, 1992, their rural mailbox ceased being the source of mail deliveries.  Dave Stutz, the manager hired by the Marshals to operate the greenhouse business testified he was responsible for picking up the mail from the Marshals mailbox with a key provided him.  See Government Exhibit MM.  James Collette testified that Christmas gifts mailed to Appellant's children were returned undelivered.  
The Court apparently accepted some testimony over others and failed to give proper weight to those in the position of knowing whether mail was delivered to them or not.  The clearest first-person testimony was from Kay Kindt:
“Just all of a sudden, every time I was able to get by there [the rural mailbox] it was always full, I mean, there was so much mail in there it was incredible because we didn’t get by there every day.  And then all of a sudden one day it was gone, just gone, and the next day it was gone, because I was getting ready.  I thought ‘Oh this is very strange’.
And then somehow, we got a piece of paper saying that all mail to 2960 was being forwarded to a post office box in the name of the Federal U.S. Marshal at the College Post Office.”
					Evidentiary Hearing Tr@ 1-53-16 
Appellant’s testimony is similar to his ex-wife’s concerning his experience with the rural mailbox:
“And then there is the ever-present 2960 Ester Dome Road address.  My personal testimony there is that I cannot recall, after my release on December 16^th, receiving even a single piece of mail from there, even though we did drive by occasionally and check.  By then, it was quite clear that nothing was coming there [to the rural mail box] and our—my trips became less frequent.
			                    Evidentiary Hearing Tr. @ 8-65-19 
United States Marshal Marvin Goffena oversaw the seized real property, including the greenhouse business and Appellant’s home on behalf of the court.  He testified about the change of address order to the post office forwarding the mail from the rural mailbox to the post office box hired by the Marshals:
“When this [post office] box was opened there should have been—and I’m not—and it didn’t personally do it, so I can only say it should have been a change of address card strictly for Happy Creek Greenhouse business mail—

Evidentiary Hearing Tr. @6-185-18 Emphasis     added
 
	James Collette testified that the Christmas presents he sent to Appellant’s children prior to Christmas were sent to the 2960 Ester Dome Road address, but returned to him months later.  The package, he said, had been opened and was missing contents. Evidentiary Hearing Tr. @ 2-67-21
	The greenhouse manager hired by the Marshals, David Stutz, testified he had a key to the Marshals post office box, and further, that he was directed to collect personal mail of the Collette’s and deliver it to the Marshals.  Stutz remembered that he would put the Collette’s mail in a bag and periodically give it to the Marshals. Evidentiary Hearing Tr. @4-80.
	Marshal Goffena indicated that his orders to the Marshals’ greenhouse employees Melissa Fink and Lynn Mayo directed them to collect personal mail of the Collette’s and to deliver it to Kay Kindt.  But neither remembers doing so.  In addition, neither remembers being given a key to the hired post office box.  For Fink-Lewis see Evidentiary Transcript @ 4-65, for Mayo see Tr. @4-90.  
	At his deposition, Marshal Goffena identified how the Collette’s personal mail was handled.  He admitted that Collette’s personal mail found its way to the post office box hired and maintained by the Marshals: 
	Question by Mr. Barkeley, AUSA:  Now whether it [personal mail for the Collette’s] was rightly or wrongly addressed to the greenhouse, that’s where it was sent [to the post office box]?

	Goffena:  Right

	Question by Barkeley: And it all got fired back.  What do you know about that, any of that mail?

	Goffena: That would—that would have—that would have been probably been returned by—that would have been returned to sender because it it was—if it was addressed to Mr. Collette, then we wouldn’t—I mean, that was not our—that was not our mail.  It was not our responsibility.  Ours was the greenhouse business mail.
	
Question by Barkeley:  Did you—did you ever tell anyone with DEA that these notices from DEA were showing up on your, the marshal’s address, and you were kicking them all back and that they ought to get a new address?

	Goffena:  I don’t remember doing that, no.

	Question by Barkeley: Well, did anybody from DEA ever ask you about it?  How come our mail isn’t getting to your---greenhouse operation?

	Goffena:  No one asked from DEA asked me, that I’m aware of--

						Deposition of Marvin Goffena, p. 69-70

	At the evidentiary hearing considerable testimony was elicited from numerous United States Post Office employees concerning procedures on the forwarding of mail after a change of address card had been filed.  The District Court, seems inclined to accept that if the Collette’s personal mail, including numerous DEA notices for forfeiture actions, found their way to the Marshal’s hired post office box, then it was in error and not the result of a planned diversion of the Collette’s personal mail.  But unambiguous or honest testimony from the government could hardly be expected: If a Marshal testified to diverting personal mail it would be an admittance of lawbreaking, as it is a crime to intercept mail meant for others.  But testimony from post office employees was far less ambiguous.    
Their testimony strongly indicates that the post office, if it followed its own practices at all, would have easily been able to distinguish between greenhouse business mail and the Collette’s personal mail, directing business mail to the Marshal’s post office box, and the Collette’s mail to the rural mailbox, a mailbox which the District Court has found was also entirely controlled by the Marshals.  Donna Matthews, a postal service manager, testified that the postal service is quite capable of separating mail that is the subject of a change of address order and other mail sent to the same address, but addressed to others who may be using the same mailbox:
	Direct examination by Barkely AUSA: --can you think of any reason why…yellow slips for certified mail, which mail was clearly addresses to an individual, not the business, at a physical address, would end up in the business’ P.O. box?

	Matthews:  Unless there was a forward from that street address to that P.O. box, that shouldn’t have happened.

	Barkeley:  If I represent to you that there was a forward but the forward was limited to the business, to mail addressed to Happy Creek Greenhouses, would the post office’s practice to only forward business mail to the P.O. box and send notices for the individual addressee out to the physical address like it says on the certified mail?

	Matthews:  If that’s what the forward is for, because we do do individual forwards from the street.  And if they wanted to forward from the street address to a P.O. box for the business only, that would be done and the rest of the mail would go to the street address.  
					Evidentiary hearing @5-40,5-41

The testimony from Donna Matthews and other postal employees provides no support for the District Court’s assumption that the personal mail found its way to the Marshals post office box in error.  Instead, evidence and testimony supports that a change of address order submitted to the post office by the Marshals also directed the Collette’s personal mail to be forwarded to the Marshals’ post office box.  
Marshal Goffena is clear that the Collette’s personal mail, as he remembered, was returned to sender by either the Marshals or their employees.  When a piece of mail is stamped return to sender, it indicates that someone’s intention is, not to throw it in the trash, but to take the time to bring it back to the post office and place it in the appropriate bin to be returned.  The paper record of DEA mailings to 2960 Ester Dome reflects that Marshals frequently returned mail to the post office: The record of DEA mailings shows in twenty-five examples that notices sent to 2960 Ester Dome Road were returned unclaimed and have a “return to sender” stamp affixed by the post office. 
 The government seeks to impart error to the post office for failing to accurately divide the Collette’s personal mail from the greenhouse business mail.  But it is a matter of course that the postal service has no difficulty dividing mail for different addressees sent to the same address.  Since the Collette’s experience was that the rural mailbox was essentially useless to them for mail delivery, and that the DEA paper record clearly shows that someone with access to the certified mail green cards took the trouble to return them to the post office and place them in a return bin, along with no hint that mailbox keys were ever accessible to the Collette’s, all strongly indicate that the Marshals exercised primary control over the Collette’s personal mail after November 4, 1992.  
As the testimony of all the post office witnesses elucidate, except in rare instances, once a change of address order had been submitted, the postal service was easily able to distinguish one addressee from another when the same address is used by more than one person, the presumption of regularity must be assigned to the United States Postal Service. 

III C.	In finding that the Marshal’s had access to all the DEA notices sent to 2960 Ester Dome through their control over both the post office box and rural mailbox, the District Court nonetheless concluded that this played no role in whether due process was provided Appellant.  
Under the “all the circumstances” test of Mullane, it cannot be deemed reasonable  for one agency of government to unlawfully interfere with the delivery of certified mail sent by another agency to inform a claimant of his right to protest a forfeiture.  If this circumstance were cast in a jail analogy, a guard purposely interfering with delivery of certified mail attempting to inform an inmate of his rights in a pending forfeiture would be a clear breach of due process.  This analogy is pertinent here because there are few circumstances outside of jails and prisons where someone’s mail is controlled by a government agency not the post office.  Dusenbery v. United States 534 U.S. 161 (2000); United States v. McGlory 202 F.3d 664 (3^rd Cir. en banc) (Mailing notice to Marshals Service for subsequent delivery violated due process.  Agency may not delegate duty to inform to another agency) citing Covey v. Town of Somers 351 U.S. 141 (1956); United States v. Woodall 12 F.3d 791,794 (8^th Cir. 1993) (holding when government is jailing property owner and also seizing his property, due process requires actual notice of a pending forfeiture); United States v. Read  787 F.2d 1437.1441 (9^th Cir. 1985) (ordinarily the government must bear responsibility for lack of clarity).  
III D.	The District Court, in ruling that a second mailing by the DEA to 2960 Ester Dome Road satisfied this circuit’s decision in United States v. Ritchie 342 F.3d 903 (9^th Cir. 2003), it necessarily had to turn a blind eye to the Marshals’ complete control over the 2960 address.
The District Court erroneously relied on the government’s evidence indicating when the DEA had many of its notices returned to them undelivered, a DEA lawyer named Cummings received a phone call from Appellant’s criminal defense attorney and obtained Appellant’s home address.  The address given by Appellant’s attorney was 2960 Ester Dome.  The DEA then mailed so-called “20 day letters” providing another round of notices and extending the time period for protest.  Of course, unbeknownst to Appellant or his criminal attorney, the 2960 address had been rendered useless due to its being absorbed by the Marshals for their own purposes. See Government Exhibit LL and Cumming’s Testimony, Evidentiary Hearing Tr. @3-13     
One central question before this Court is whether the DEA provided adequate due process in sending out second notices to an address which: 1. Had failed numerous times before; 2. Was in the control of another agency; 3. Was provided by a criminal attorney unauthorized and unwilling to represent civil issues; and 4. Was outside of and separate from the DEA’s own address reporting system that should have accessed public records to obtain a proper address for Appellant.  Of course, if this Court finds that the Marshals prevented the DEA from properly notifying Appellant it is unnecessary to reach these questions.  
III E.	The District Court apparently overlooked the obstruction to mail delivery imposed by Marshals and viewed the notice exercise in a light most favorable to the DEA.  
Given that the District Court judge inherited the case from his predecessors and did not hear the testimony, the judge failed to give proper weight to the overwhelming evidence identifying the Marshals as culprits in preventing the normal flow of mail to Appellant.^4  Patelco Credit Union v. Sahni 262 F.3d 897, 905-06 (9^th Cir. 2001) 

^4 For discussion of the position of an judge inheriting a case heard by others before a finding of fact or law is issued, see Order at District Court Docket no. 190

Testimony also indicates that the DEA failed to follow its own procedures for obtaining a proper address for Appellant for the sending of the 20 day letters, which was easily available from the court clerk.  See Testimony of Dorothy Floyd, DEA, “we go to our field offices and they have to go out and try to provide us with a better address.  We fax the form to our field offices, ‘the letter came back.” Evidentiary Hearing Tr. @ 3-45.  “It doesn’t matter if have to go back 5,6,7,10 times.  We will continue to go to our field offices if we continue to get the notice letters back.” Tr. @3-109.  
Floyd’s testimony was so unfavorable the government’s attorney was forced to concede that the DEA’s initial efforts to locate Appellant were entirely insufficient.^5  Because of its stipulation, government is forced to rely entirely on the second mailing to 2960 Ester Dome.  The government’s reasoning is clear, if the DEA mailed “20 day letters” to Appellant to an address supplied by his attorney, then Ritchie is satisfied.  Because of the government’s stipulation that most of the first round of notices sent were to addresses where Appellant was guaranteed not to be, government must entirely rely on the second notices to 2960 Ester Dome being considered a “reasonable additional effort.”  

^5 Barkeley, AUSA “so there’s no quibbling here from the government that the 453’s [DEA forfeiture form to identify claimant’s addresses] originally conveyed information to DEA headquarters which was insufficient.” EH Tr. @8-111

Arguably, if Appellant had been afforded access to his long term mailing address, the “20 day letters” would have reached him.  But the notices had little or no chance of finding Appellant because the Marshals collected his mail, returned all the first round of notices sent to 2960 back to the DEA, and failed to seek addresses available from the clerk of court for his court appointed third-party custodians, or for the address of the jail where the government had placed him in beginning on February 3, 1993.    
In ten instances, both “20 day letters” and some first attempts at notice were received by a “Karen Brown.”^6  Her signature appears on certified mail green cards signed on a single day, March 1, 1993.  Efforts to locate Karen Brown were unsuccessful and her identity is not known.  However, it has been amply determined by postal testimony that for someone to access and sign for certified mail on behalf of someone else, that person had to either prove they lived at the same address, had the same last name, or, as likely occurred here, possessed a key to the post office.  See Testimony of Delozier  Evidentiary Hearing Tr. @4-135. 

^6 See Government exhibits B-2, C-7, D-8, E-12, F-8, H-13, M-6, N-2, Q-6, V-4.

 The cards signed by Karen Brown were available to her only because she possessed one of two keys to the Marshals post office box. See Government Exhibit MM.  Had she received delivery of the certified mail notice from elsewhere, such as a rural mailbox, post office policy required her to provide identification with the same family name or a member of household with the same address.  Testimony Delozier Tr. @ 4-126-131.  It is therefore unequivocal that Karen Brown accessed the certified mail green card by possessing one of the two keys the Marshals maintained for the post office box, or necessarily, provided a picture identification with the same address or the same last name as the addressee.  It is most likely, given that no one actually lived at 2960 Ester Dome Road, the location of the greenhouse business, that Karen Brown accessed the certified mail cards by using one of the two keys provided the Marshals by the post office.  This strongly leads to the conclusion that the Marshals exerted complete control over the 2960 address. 
But the district court reaches a different conclusion by relying on the testimony of Marshal Goffena given just minutes before he was caught introducing false testimony. See Chein v. Shumsky No. 01-56320 (9^th Cir. En banc, 2005) for explanation of material perjury.  The judge makes no reference to the fact that the Marshal was shortly to be humiliated in open Court.  The district court writes:
“While it is now obvious that this address [2960 Ester Dome] was not the ideal avenue to reach Collette, determining whether notices sent to this address were reasonable efforts depends on whether the DEA knew or should have known that the 2960 Ester Dome mailbox was controlled by the U.S. Marshals.”      
					Order at D.C. Docket 208, page 38

The opinion, by then, reaches the conclusion that the change of address order for the business did not also include a change order for the Collettes.  The district court fails to note the Collette’s mail to the rural mailbox stopped arriving entirely after November 4, 1992. 
III F.	The successor judge deciding the case was restricted in making credibility determinations of witnesses under Fed.R.Civ.P. Rule 63.  If a successor judge decides the issue, a certification of familiarity with the record is necessary.  However, this rule does not require a judge base his findings on the testimony of an impeached witness.
	The deciding judge in the opinion under review inherited the case from two previous judges after the resignation of the magistrate judge hearing the evidence.  The magistrate left without reaching a finding.  After a referral by a retiring district court judge the present judge was assigned.  In this circumstance the rules require that, if a decision is reached by the successor judge, then he must be familiar with the record and may decide the case if no credibility determinations must be made.  Patelco Credit Union v. Sahni 262 F.3d 897, 905 (9^th Cir. 2001),  Bromberg v. Moul, 275 F.2d 574, 576 (2d Cir.1960); see also Chicago Prof'l Sports Ltd. P'ship v. Nat'l Basketball Ass'n, 95 F.3d 593, 601 (7th Cir.1996) (suggesting that on remand successor judge could decide the case on the existing record if credibility determinations were unnecessary); Medicare Glaser Corp. v. Guardian Photo, Inc., 936 F.2d 1016, 1019 (8th Cir.1991) (affirming resolution on summary judgment); Emerson Elec. Co. v. Gen. Elec. Co., 846 F.2d 1324, 1326 (11th Cir.1988) (citing with approval rule from Bromberg but reversing summary judgment because credibility was at issue); Mesa Petroleum Co. v. Coniglio, 787 F.2d 1484, 1488 (11th Cir.1986) (affirming resolution on summary judgment); In re Schoenfield, 608 F.2d 930, 935 (2d Cir.1979) (citing with approval the rule from Bromberg and affirming grant of new trial because credibility was at issue). 
Case law indicates that Rule 63 is not violated when no material facts are in dispute and the successor judge rules as a matter of law.  The difficulty presented here is the circumstance of a successor judge who issues a ruling largely based on testimony from a government witness who was impeached on a highly material issue i.e. whether the Marshals exerted control over the personal mail of the Collette’s through plan or through postal service error.  The successor judge apparently reached his finding of fact based on Goffena testifying: 1. He had not ordered the Collette’s mail to be forwarded to the Marshals post office box; 2. He had issued orders to the greenhouse employees to hand deliver the Collette’s mail to Kay Kindt; 3. That Happy Creek Greenhouse mail was found frequently in the rural mailbox following the change of address order; 4. The Collette’s personal mail was frequently found at the rural mailbox following the change of address order; and 5. That manager Stutz had not given him Collette’s personal mail to be returned to sender.  All of the above points made by Goffena were countered by other testimony, yet the successor judge accepted the Marshals’ evidence over others and found that the Marshals control over the Collette’s mail was: 1. Inadvertent; 2. Rare; 3. The result of postal service error; and 4. Immaterial because the diversion of the Collette’s mail had no effect on whether due process had been served because the DEA could not have known the Marshals controlled both the rural and post office addresses for 2960 Ester Dome Road. 
It is Appellant’s view that Rule 63 and the inability of a successor judge to make credibility determinations of witnesses does not include accepting the impeached testimony of a witness.  Rule 63 requires a certification of familiarity with the record, and that familiarity must include, at the least, the recognition of witnesses who have been humiliated in open court for telling material lies.  This raises serious questions about whether Rule 63 requires all testimony, whether impeached or not, to be accepted on the same basis as unchallenged, freely given testimony from unprofessional witnesses.  
Appellant’s position is that a successor judge may review the record and make findings of fact based on the preponderance of the testimony without reaching credibility determinations.  Exceptions to the rule, however, must include discretion to disregard witnesses obviously attempting to mislead the court.  There exists the danger under Rule 63 that a judge may subvert a just outcome by refusing to make a reasonable credibility determination and, thereby allow the perjurious to prevail. 
The issue of who may make a determination of fact is central to the case.  If the Marshals’ controlled Appellant’s mail to a high degree during the notice period and actively prevented the DEA from notifying him, then it must follow that government, as a single sovereign, failed in providing adequate due process for the forfeitures at issue.  The 20 day letters sent by the DEA had no practical effects in providing due process if the address used was unavailable to Appellant due to acts of government, as appears the case.  The DEA may not have known the Marshals controlled the 2960 address, but the government certainly knew.  
Appellant should not bear the burden for the failure of two agencies, both seizing and forfeiting Appellant’s possessions, to share information.  United States v. Giovanelli 998 F.2d 115 (2^nd Cir. 1993) (the statutes impose no duty on a defendant to prevent the government from losing its right through carelessness). . See, e.g., United States v. One Ford Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 865, 83 L.Ed. 1249 (1939) (Forfeitures are not favored; they should be enforced only when within both the letter and spirit of the law). 
III G.	There is a question whether the court’s certification for the familiarity with the record is proper, given the restraints under Rule 63.
At footnote one, page one in the opinion under review, the court makes a certification and claims that the parties granted Judge Singleton carte blanche to make determinations of credibility.  The parties did no such thing.  No rational party would grant a judge who did not hear the testimony the right to decide who was telling the truth and who was not.  This power to value one testimony over another was arrogated by Judge Singleton and accepted by Judge Beistline.  
This does not mean, as discussed above, that the successor judge cannot make obvious credibility determinations, such as the case where a government witness was exposed as a perjurer in open court.  The restrictions on determinations of credibility for a successor judge must be based on whether the witness was self-contradictory, was illogical, was unfamiliar with the event he is testifying about, and other conclusions available from a careful reading of the transcripts.  But Judge Beistline based his ruling on the testimony of an open perjurer whose testimony should have been discounted.
III H.	The district court found that when the DEA sent so called “20 day letters” to Appellant following the phone call from Appellant’s defense attorney, none were returned to alert the DEA that the 2960 address was unreliable.
The record indicates a contrary conclusion to the court’s finding.^7  After the January 27, 1993 phone call from the DEA’s Cummings to Scott Dattan Appellant’s defense attorney, the DEA sent out many notices to many addresses, not limiting itself to 2960.  Of those mailed to 2960, ten were signed for and delivered to Karen Brown, but another 12 were sent to 2960 and went unclaimed and were returned to the DEA. See Government Exhibits B-3, C-6, G-10, I-7, J-3, K-10, I-11, M-5, N-1, Q-5, R-3, U-7.  There is no evidence suggesting that these undelivered notices were not returned to the DEA providing the DEA with a full warning that the 2960 address was unreliable. 

^7 Page 38 of Opinion.  “Here none of the letters mailed to the 2960 Ester Dome Road address before [sic] February 4, 1993, were returned by the postal service to DEA headquarters. Rather, they were either signed for by Karen Brown, not returned to the DEA, or the green cards returned unsigned.”

III I.	The district court finds that some notices sent to Cook Inlet Pre-Trial Facility comported with Dusenbery v. United States.  The court fails to discern that the government’s burden of proof was unmet because of the introduction of conflicting testimony.
The Supreme Court in Dusenbery heard testimony about the internal mail procedures in a federal prison.  The High Court found it acceptable that the prison would normally hand deliver certified mail to the inmate, after signing for it at the post office and distribute the certified mail in a system separate from normal mail.  The District Court found due process failures in notices sent to Cook Inlet Pre-Trial for the Helio  Courier aircraft, Government Exhibit A, and for Marijuana Grow Equipment, Government Exhibit C.  For items D, E, F the district court, in error, finds that due process was adequate.
To meet its burden of proof government called two witnesses familiar with the mail practices at Cook Inlet Pre-Trial (CIPT).  The first called was Joe Rodgers, who testified that unless a certified mail envelope was stamped confidential or legal mail, the CIPT would not treat it with greater care. Tr. @ 3-190.  The paper record indicates that the DEA did not stamp their letters with either “legal” or “confidential.” 
At CIPT legal mail is logged and hand delivered to the inmate to be opened in the presence of a guard.  Rogers refused to support that a certified delivery from the DEA would be treated as legal mail, logged in and placed in a separate mail cart for hand delivery to the inmate.  His experience was that certified mail with a DEA return address would be opened, classed with normal mail, and distributed in baskets to the various jail modules. 
The second government witness was Vyna Lewis. Tr. @3-200.  She testified that legal mail, mail stamped legal or confidential, would be placed in a special bin and hand delivered to an inmate and opened in the presence of a guard.  She opined that certified letter with a return address from an agency, such as the Department of Justice, would receive legal mail status.  Lewis differed markedly from Rodgers in her experience of how mail, such as certified DEA notices were handled. Tr. @3-211.  The notices sent by the DEA, if handled by the methods reported by Lewis, logging the mail and placing it in a special bin for opening in the presence of the inmate,  comported with Dusenbery.  Because of conflicting testimony given by two equally informed jail guards, the government has failed in its burden of proving that CIPT met the minimum standards for jail mail delivery found in Dusenbery.  
In this instance as well, the successor judge under Rule 63 cannot give greater weight to one testimony over another.  Here, both witnesses are equally knowledgeable but held different opinions about how a certified mailing from the DEA were be treated at CIPT in 1992, yet the judge chose to believe Lewis over Rodgers.  
Due to this conflict, the government has failed to meet its burden of proof under Dusenbery.  This circuit has found in United States v. Real Property 135 F.3d 1312, 1312 (9^th Cir. 1998) that due process requires legal notice to be opened in the presence of an inmate.   This case is consistent with Dusenbery and highlights a key element of jailhouse mail security. 
III J.	The District Court finds that in the DEA’s proliferation of mailings, due process was served.  But the sheer volume of notices sent to addresses where a claimant was guaranteed not to be can never satisfy due process. 
The District Court found that notice sent to the Star Route address [SR20087A], as well as those sent to 2960 Ester Dome were returned to the DEA, then concludes the notices contributed to the reasonable efforts made by the government.  See Ft. 24, Opinion under review at DC. Docket no. 208 and pages 34-35.  The Court also found that most of those sent to 3221 Ester Dome Road were also returned.  
In fact, all those to 3221 were returned by the post office due to their not being a mail receptacle to receive mail.  3221 Ester Dome was the Collette’s residence and never had been used by them for a mailing address.  Any mail delivered there would have required the post office to use a four-wheel drive vehicle.  The poor driveway called for a mailbox placed on a state maintained road.  This was satisfied with the 2960 address.  The Collette’s residence had been seized, the owners evicted on the day of the arrest, was posted with no-trespassing signs by the Marshals, and the doors locked.  This was a fact well known to the government.  
The Star Route notices [SR20087A] were sent to an address that had ceased being useful in 1982 when street addresses were assigned for the first time.  The single exception to this is found at GE L-5 where a notice bears a likeness of Appellant’s signature.  The government has stipulated that the early attempts to notify Appellant were insufficient. See Ft. 5, herein.  Since the government discounted the effectiveness of the early addresses, due to the influence of Ritchie, it builds its main case on the Cumming’s phone call where the 2960 address was provided by Appellant’s attorney.  
The district court, however, mistakenly embraces DEA’s early and useless efforts as part and parcel of a good faith effort to inform.  If this view were to be widely adopted, then courts could use a measuring tape to compare failed notices; the higher the stack the more likely that due process was provided.  But quality and accuracy of notice are far more important criteria in establishing reasonableness, especially here, where Appellant was easily available at all times during the notice period.  
Dorothy Floyd, the DEA office manager in charge of the forfeiture office in Washington D.C. testified that her office did not receive any further address information for Appellant from the DEA field office in Alaska following the initial information provided following the seizures.  The DEA form 453, a forfeiture form filed by the field offices with DEA headquarters, carried the initial address information for Appellant.  This initial information from the DEA field office was used for the majority all the notices mailed.  Nowhere in the record does it show that DEA made any independent effort to locate a proper address for Appellant following the filing of the initial DEA 453 forms and pass it on to DEA in Washington, although it was DEA practice and procedure to do so.  See Floyd testimony Tr. @ 6-140.  United States v. Rodriguez Aguirre 264 F.3d 1195 (10^th Cir.2001)  (citing 41 CFR 128 50.101 requiring agencies to keep accurate records of seized property). 
Although Floyd attempted to avoid the question of whether DEA could respond rapidly to new address information, she was forced to concede that following the phone call between lawyers the DEA mailed out 20 day letters within two days.  This response certainly highlights that the DEA field office in Alaska failed utterly in keeping DEA headquarters informed of Appellant’s mailing address.  See Floyd Tr. @ 6-151.  
This failure by the DEA undermines the government’s argument that Appellant was not easily found during the notice period.  The DEA in Washington D.C. easily could have informed Appellant of the forfeitures upon hearing from the field offices of a new address, always on file with the clerk of court in Alaska.  This is especially true due to Appellant’s highly restrictive third-party custody bail status.  Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983) ([n]otice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party ··· if its name and address are reasonably ascertainable.) (emphasis omitted); Sarit v. Drug Enforcement Administration 987 F.2d 10 (1^st Cir. 1993) (notice is judged on the day it is sent, not when it is received); Whiting v. United States 231 F.3d 70,76 (1^st Cir. 2000); Robinson v. Hanrahan 409 U.S. 38, 40, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972); ; Torres v. $36,256.80 U.S. Currency, 25 F.3d 1154, 1160-61 (2d Cir.1994).  
III K.	The government was collateraly estopped from seizing bail bond funds after a magistrate found the source of funds was a “community donation.”
The two forfeitures in Government Exhibits T and U designate the seizure of funds that, according to government affidavit, were from unlawful sources and therefore subject to forfeiture.  See Plaintiff’s Exhibit 10.  Apart from the notice difficulties with these forfeitures, the fact that a court found that the funds came from lawful sources protects these same funds from subsequent forfeiture.  This Court should rule that the government was bound by the finding of the court and void the two administrative forfeitures. 
Federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel.  Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195.  Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.  Montana v. United States 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210.  As this Court and other courts have often recognized, res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication. Id., at 153-154, 99 S.Ct., at 973-974; United States v. $228,536.00 in U.S. Currency 895 F.2d 908 (2^nd. Cir. 1990)
Although the hearing before Magistrate Judge Roberts was in the criminal context and the subsequent seizure of the funds was administrative, the swearing of the affidavits to another magistrate in another town was an example of the failure to inform when the agent had a clear duty to do so.  
Testimony from the swearing agent, Kevin Key of the Internal Revenue Service, implicated Suzanne Hayden as the person ordering him to seize the funds.  Hayden was the chief prosecutor in the criminal prosecution against Appellant, and as such, was primarily responsible for the attack on Appellant’s bail status.  See Key Testimony Tr. @ 7-74.  The government had a clear finding in the first court, was obviously unhappy with the result, and then proceeded to collaterally seize the very same funds in another forum. 
With the testimony of Virginia Baim and Glenda Staube, one motive for the forfeiture of the defense and bail funds may be understood.  Both Baim and Straube cited the seizure of the defense fund account, along with the seizure of the bail funds from the bail bondsman’s account, as having a chilling effect on donations to the defense account.  After the government had absorbed the Collette’s long term mailing address for itself, it forced those who wished to donate to look elsewhere.  Since it is not known how many donations were sent to the Collette’s long-term address, 2960, it is unknown how many defense donations the government was responsible for intercepting.  From the volume of donors recorded by Straube on behalf of the defense fund, over 100, it is reasonable to assume that the number and donors and the dollars collected would have been far greater but for the intervention of the government in seizing donated funds and absorbing the Collette’s mailing address.  See Baim Testimony Tr.@ 1-171, Straube @ 2-5.  
III L.	Any inquiry into the government’s motives in the case must begin with the seizure and occupancy of Appellant’s real and business properties in violation of this circuit’s unanimous ruling in United States v. James Daniel Good Real Property 971 F.2d 1376 (9^th Cir. April, 1992).   
    In the year following this circuit’s decision in Good, the Supreme Court, also with a unanimous ruling, supported the necessity of pre-seizure notice and hearing when the government institutes in rem forfeiture proceeding against real property.  This court issued its opinion in April 1992, six months before the government took full possession of Appellant’s real properties including his home and business, without benefit of pre-seizure notice and hearing.  
Here, the government excluded the owners, posted the property with no trespassing signs, and locked the doors.  The business bank accounts and accounts receivables were seized.  Anything valuable and movable was removed and shipped from Fairbanks to Anchorage.  The shipping for seized items, including items seized from others in the criminal case, cost the government over $33,000.00.^8 

^8 Pictures of seized items and shipping bills are in evidence in the Deposition of Marvin Goffena, 
  Exhibits 1-14.

With the indulgence of Magistrate Miller, Appellant was allowed to enter into evidence at the evidentiary hearing testimony countering the government’s continued assertion that Appellant had “actual” notice of the many administrative forfeitures.  This actual or virtual notice was supposed to have been obtained by Appellant through various informal means.^9  

^9 The Supreme Court in Dusenbery 534 U.S. 141 (2000), at footnote 5, defines “actual notice” as “receipt of notice.”

The government has been unsuccessful after many attempts in various courts, in imposing on the notice inquiry a metaphysical view that someone may somehow obtain detailed knowledge of how to defend against a legal action while remaining unaware of specific details contained in a formal notice.  No precedent known to Appellant wholly endorses the concept that generalized information concerning a seizure or forfeiture may replace the forfeiting agency’s duty to notify a potential claimant by formal means.  
With the Supreme Court weighing into this ongoing debate, by finding that actual notice means the receipt of notice, government attempts to convince the courts that the notion of virtual due process may replace the need for formal due process, is a heavy blow against this nonsensical theory.  Nonetheless, this defense is grandly employed in this case.
Here, that evidence showing that the government seized Appellant’s real properties, stripped them and shipped anything that could be moved, serves to expose the high level of confusion imposed on the forfeiture process by the government ignoring its duty under the law as found by this circuit in Good.  Some automobiles, the record shows, were seized administratively, and some not seized at all.  Some machinery was taken administratively and some allowed to be included in the real property seizures.  Some items were merely lost or stolen by the many federal agents employed in removing and packing the items. See Collette testimony, Tr. @5-149.  
Marvin Goffena, the U.S Marshal who headed the Marshals’ forfeiture branch, testified that he had undergone training in the forfeiture procedures following this circuit’s ruling in Good.  When asked whether he had been informed of the change in procedures Goffena replied:
“As far as I can recall, I’m not—I don’t remember exactly what year that decision was rendered by the Ninth Circuit.  It was probably a short time after that the--the procedures that we use changed… I remember we had a meeting with the U.S. Attorney’s office and they briefed un on the – law…”
					Goffena Testimony Tr. @5-165
To clarify whether the briefing from the U.S Attorney came after the circuit ruling Goffena was questioned whether he drew a distinction between the two rulings:
Q. One [case] is on the Ninth Circuit level and one was the Supreme Court level.  Did you receive briefings after the Ninth Circuit decision?
A. Yes, after the Ninth Circuit decision.
Goffena’s evidence indicates that the United States Attorney for Alaska took the appropriate measures of informing the Marshals following this circuit’s decision in Good, but when it came to seizing Appellant’s real property, Good was entirely ignored. 
The confusion caused by this unlawful behavior cannot be overestimated.  Any marginal information about the pending forfeitures the government may wish to impart to Appellant must be rejected due to the complete chaos caused by the government’s unlawful behavior.  In the confusion, no one outside the government could possibly determine which of Appellant’s properties were moved against administratively, through in rem forfeiture, which were stolen, and which possessions simply disappeared.  On many fronts, the intent of government in its numerous civil attacks against Appellant’s property must be understood as a highly successful attempt to diminish Appellant’s ability to defend his properties.  This overused government tactic of instantly pauperizing property owners has since been addressed by Congress in the Civil Asset Reform Act of 2000. 
III M.	The district court failed to correctly find that Appellant’s apparent signature on a single certified mail green card from the DEA was a probable impossibility. Opinion at p. 18,
The district court found that the green certified mail card at Government Exhibit L-5 was signed by Appellant.  The court based this finding on the testimony of a postal employee, Delozier, who, the court says, testified that it was possible for mail sent to a Star Route address to reach Appellant in 1992.  Tr. 4-138 through 4-142.  But Delozier neither says or implies this.  After elaborate testimony about how Appellant may have received access to notice L-5, the witness agreed that it remained a mystery.  Further, if a presumption of regularity is followed in the practices of the post office in returning all notices sent to Star Route addresses beginning in 1982, then Appellant could not have accessed the certified mail green card.  In 1992 all mail addressed to Star Route addresses were returned to sender automatically. 
	Given the district court’s restriction in judging the credibility of witnesses, and given that it must necessarily adhere to a summary judgment standard, in finding that notice was provided for this forfeiture the court with such conflicting evidence, the court far exceeds its mandate.  Given that the weight of evidence calls for a finding that the source of the signature of Appellant remains a mystery, and that the presumption of regularity implies that all mail to Star Route addresses in 1992 were returned to sender, the district court finds that, against-all-odds, a postal error most likely occurred and provided the DEA notice to Appellant.  The district court, once again, imparts all errors to the postal service rather to the government’s obvious attempt to exert control over Appellant’s mail directed to his long term address.  See Collette Testimony Tr. 8-92.  Under the strict standard of evidence imposed on the successor judge deciding the case, this reasoning cannot possibly be allowed to stand.  The finding must therefore be reversed.

IV.			            	CONCLUSION	
	This brief must a serve duel purpose.  Because the district court judge deciding the issue inherited the case from the magistrate hearing the evidence, the parties have had no opportunity to object to a magistrate’s findings.  The parties must address each and every appeal point in their respective briefs necessitating an all-or-nothing approach.
	Further complicating the issue, for both parties and for this Court, is the district court arrogating power to make credibility determinations for itself, in violation of standards compelled by Rule 63.  Because the evidentiary hearing introduced conflicting testimony in almost every area explored, and because of the 12 years between the events and a hearing, the evidence calls for a finely reasoned view of the evidence.  Whether this calls for something that no party wishes, a rehearing of the evidence before a single fact finder, is up to this Court.    
In its main defense the government exploits the inevitable inconsistencies in a twelve year old record to implicate the post office in numerous errors.  It was the post office who ignored the Marshals’ change of address order for business mail alone, it was the post office which failed to return to sender the L-5 green card as it had to 16 other notices the DEA mailed to the Star Route address.  It was the post office that confused the personal mail from the business mail and, if the government is to be believed, was the real cause of the Collette’s personal mail reaching the Marshals’ post office box, and not the filing of a change of address order for all mail addressed to 2960 Ester Dome.  
In each case, the government blames the post office for errors it caused itself in its effort to exert control over everything owned by Appellant, including his address.  The government even went so far as to seize funds donated to Appellant’s legal defense from over 85 Alaskans who disagreed with the government’s heavy-handedness.  
By blaming the post office the government undermines the very basis for adequate notice in this country.  All courts have supported that the mails provide the chief means by which due process may be served.  From the Supreme Court downward, the mails are assumed by courts to be the best means to locate someone, and by lack of a viable alternative, the post office must be afforded a presumption of regularity in its practices.  Having exploited postal errors in its defense here, the government undermines the trust necessarily placed in the post office’s normal procedures.  
In many due process faults due to lack of notice it is the claimant who cries, “the post office lost the mail.  I wasn’t informed.”  In this case, it is the government who blames the mails for its random, chaotic, and self-canceling attempt to adequately inform Appellant.
Due to the district courts abuse of discretion in finding facts, and its failure to apply accepted law to the notice inquiry, the district court ruling must be overturned.  The district court, in also dismissing the remaining claims without benefit of hearing, must be reversed for further development.	
Pro-se litigants should not be unreasonably subjected to stringent procedural niceties.  Papantony v. Hendrick 215 F.3d 863 (8^th Cir.2000).
Respectfully submitted on the 27^th day of December, 2005, by 

___________________________
					  John Collette, Appellant pro-se

CERTIFICATION
I certify that I have sent via 1^st class mail, a true and correct copy of the attached Appellant’s Opening Brief in case 9^th Cir. 05-36110 to, James Barkeley, 222 West Seventh Ave. Rm. 253 #9, Anchorage, AK 99513 on the 27th day of December, 2005. 

					_______________________
					         John Collette