U.S. v. Rodriguez-Aguirre

• Decision Date: 05 September 2001
• Docket Number: RODRIGUEZ-AGUIRRE,No. 00-2337,00-2337
• Citation: 264 F.3d 1195
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GABRIEL, also known as Cuco Aguirre, also known as George Aguirre, also known as Gabriel Aguirre, also known as Gabriel Rodriguez, also known as Refugio Rodriguez; ELENO AGUIRRE; DOLORES CONTRERAS; TONY BENCOMO, Defendants-Appellants
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1195

264 F.3d 1195 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GABRIEL RODRIGUEZ-AGUIRRE, also known as Cuco Aguirre, also known as George Aguirre, also known as Gabriel Aguirre, also known as Gabriel Rodriguez, also known as Refugio Rodriguez; ELENO AGUIRRE; DOLORES CONTRERAS; TONY BENCOMO, Defendants-Appellants.

No. 00-2337

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 5, 2001

Appeal from the United States District Court for the District of New Mexico, (D.C. No. CR-92-486-JC) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Stephen R. Kotz, Assistant United States Attorney (Norman C. Bay, United States Attorney, District of New Mexico, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Brenda G. Grantland, Mill Valley, California, for Defendants-Appellants.

Before EBEL and HOLLOWAY, Circuit Judges, and JONES,^* Senior Circuit Judge.

EBEL, Circuit Judge.

Appellants Gabriel Rodriguez-Aguirre, Eleno Aguirre, Doloras Contreras and Tony Bancomo appeal from the district court's denial of their Rule 41(e) motion for the return of property. The property in question was allegedly seized in 1992 pursuant to several warrants executed on homes and business properties owned by Appellants. While many of the seized items were forfeited by the United States in valid civil forfeiture actions, Appellants allege that approximately 127 of the seized items were never properly forfeited and thus should be returned to Appellants. The magistrate judge assigned to the case recommended denying Appellants' motion based on lack of standing and laches, and Appellants' objections to the magistrate's recommendations were rejected by the district court when dismissing Appellants' motion.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we hold that Appellants have established standing to pursue their Rule 41(e) motion. We further find that the district court erred in applying the doctrine of laches without requiring Plaintiff-Appellee, the United States, to demonstrate material prejudice. Finally, we hold that the six-year statute of limitations set forth at 28 U.S.C. § 2401(a) applies to the bringing of a Rule 41(e) motion. In cases where the government has effected an administrative forfeiture of property, a Rule 41(e) claimant's cause of action alleging unconstitutional lack of notice of the forfeiture accrues when he or she discovers or should have discovered that the property was forfeited. In cases where there has been no forfeiture action brought against property that has been seized in conjunction with a criminal proceeding, a Rule 41(e) claimant's cause of action does not accrue until the government no longer has the right to keep the seized items as evidence in the criminal proceeding. Because we cannot determine which accrual date applies in this case, we REVERSE and REMAND this case to the district court for further proceedings, including a determination of the timeliness of Appellants' motion.

BACKGROUND

On April 20, 2000, Appellants Gabriel Rodriguez-Aguirre, Eleno Aguirre, Doloras Contreras and Tony Bancomo filed a motion for the return of property pursuant to Rule 41(e) following their convictions on multiple counts of drug, money laundering and related offenses. Appellants' convictions were entered on December 15, 1994. All but Bancomo appealed their convictions, and each Appellant's conviction was upheld on appeal in 1997. See United States v. Rodriguez-Aguirre, 108 F.3d 1228 (10th Cir. 1997); United States v. Aguirre, 108 F.3d 1284 (10th Cir. 1997); United States v. Contreras, 108 F.3d 1255 (10th Cir. 1997).¹

The property in question was seized by federal agents pursuant to warrants issued in 1992, which allowed the agents to seize fifty-one parcels of real property as well as the contents of those properties. The agents executing the warrants also seized, among other things, race horses, vehicles, cash, personal property and a life insurance policy. Over the course of the next five years, the United States initiated a total of three civil forfeiture proceedings against the seized properties, all of which resulted in judgments of forfeiture. See United States v. Fifty-One Items of Real Property, CIV 92-1155-JC (D.N.M. Dec. 22, 1993); United States v. Item One: Approximately 247 Horses, CIV-93-102 JC (D.N.M. Jun. 29, 1994); United States v. Eighty Acres, CIV-95-0981-JC (D.N.M. Aug. 8, 1997).

Appellants do not challenge the judgments of forfeiture in those cases. In their Rule 41(e) motion, however, Appellants argue that the itemized returns on the search warrants reveal 127 seized items that appear never to have been validly forfeited by the United States in any of those three civil forfeiture proceedings or in any administrative forfeiture proceeding.

Rule 41(e) of the Federal Rules of Criminal Procedure states:

A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.

Fed. R. Crim. P. 41(e). Appellants do not contend that the 127 listed items of personal property were taken from them pursuant to an unlawful search and seizure. Instead, Appellants argue that they have been wrongfully "depriv[ed]" of their property and are "entitled to lawful possession of the property." Specifically, Appellants assert that those 127 items do not appear on any of the lists of forfeited property related to the three civil forfeiture actions undertaken by the United States between 1992 and 1997. Further, they argue that neither they nor any member of their families ever received notice of an administrative forfeiture relating to those 127 items, and thus that none of those items "could . . . have been forfeited in compliance with the notice requirements of the Due Process Clause." Appellants' claim for relief under Rule 41(e) is therefore two-fold. They argue, first, that if any of the 127 items were not actually forfeited by the United States in any of the three civil forfeiture proceedings, then Appellants retain an ownership or possessory interest in those items and the items should therefore be returned. Second, and in the alternative, Appellants argue that if any of the 127 items were administratively forfeited, then Appellants never received adequate notice of the pending forfeiture and thus the forfeiture of those items is void.

Appellants' Rule 41(e) motion included a declaration from Rodriguez-Aguirre² which listed the 127 items³ he believed had never been properly forfeited by the United States and which stated that each piece of property was owned by "either [him] or [his] relatives."⁴ He also stated that he had personally owned, leased or possessed thirty-two of the fifty-one seized properties, and "most of the personal property" seized from them, listed in the first forfeiture action initiated by the United States. The other Appellants did not include declarations with the Rule 41(e) motion but assert on appeal that they "have always intended to submit declarations, live testimony, and other evidence of ownership when the case gets beyond the pleading stage and into the proof stage."

At the time Appellants filed their Rule 41(e) motion, the statute of limitations had run on the United States' ability to commence forfeiture proceedings against seized property that had not already been subject to forfeiture proceedings initiated by the United States. See 19 U.S.C. § 1621 ("No suit or action to recover . . . any pecuniary penalty or forfeiture of property accruing under the customs laws shall be instituted unless such suit or action is commenced within five years after the time when the alleged offense was discovered . . . .").

The United States filed a motion to dismiss Appellants' Rule 41(e) motion, arguing: "(1) the applicable statute of limitations barred the Rule 41(e) motion; (2) defendants lacked Article III standing to assert a claim to the alleged property; and (3) the equitable doctrine of laches barred the motion."⁵

The magistrate judge assigned to the case recommended denying Appellants' motion on July 20, 1997, based upon lack of standing and the equitable doctrine of laches. In regard to the issue of standing, the magistrate concluded that because "[b]oth an allegation of ownership and some evidence of ownership are required to establish standing to contest a civil forfeiture," Appellants' "unsupported declaration that either [Rodriguez-Aguirre] or his relatives own the property" was "insufficient to confer standing to assert a claim for the property." In regard to the United States' laches argument, the magistrate found that Appellants' delay in filing the Rule 41(e) motion was not excused by the protracted litigation in which they had been engaged or by the amount of property that had been seized, and thus that Appellants' motion "should be denied based on the equitable doctrine of laches." The magistrate made no finding regarding whether the United States was materially prejudiced by Appellants' delay in filing the Rule 41(e) motion.

Appellants' objections to the magistrate's recommendations were rejected by the district court on August 17, 2000, at which time the district court adopted the magistrate's recommendations and dismissed Appellants' Rule 41(e) motion. This appeal followed.

DISCUSSI...