U.S. v. Martinson

• Decision Date: 27 February 1987
• Docket Number: No. 85-3066,85-3066
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Leroy MARTINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1364

809 F.2d 1364

UNITED STATES of America, Plaintiff-Appellee, v. James Leroy MARTINSON, Defendant-Appellant.

No. 85-3066.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 6, 1986.

Decided Feb. 3, 1987.

As Amended on Denial of Rehearing Feb. 27, 1987.

Hollis K. McMilan, Chief Deputy Federal Public Defender, Stephen R. Sady, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

Thomas M. Coffin, Asst. U.S. Atty., Eugene, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before FLETCHER, ALARCON and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

This case involves conduct by the government that we believe justifies our criticism. Accordingly, we report the relevant facts in considerable detail.

James Leroy Martinson is apparently a gunsmith and a gun collector. In January, 1984, he and a friend were driving from Springfield, Oregon, to attend a gun show in Grants Pass, Oregon. The truck in which they were driving was pulling a trailer. Martinson, who was driving, stopped the truck in an off-street parking lot in front of a supermarket. A local police officer believed the truck was partially blocking traffic and stopped to warn Martinson. During the course of this routine inquiry, the officer requested by radio that his headquarters "run a warrant check" on James Leroy Martinson. ¹ The officer was informed that the police computer revealed an outstanding warrant for a federal offense. Relying upon this information, the officer placed Martinson under arrest and removed him to the local jail. His companion apparently drove the truck and trailer to the jail. Martinson told the police officers that guns of his were in the trailer. The police searched the trailer, with the consent of Martinson's companion, who was its owner. Nine 19th century black powder Winchester rifles were seized and were thereafter turned over to an agent of the Bureau of Alcohol, Tobacco & Firearms (ATF).

Martinson remained in jail only briefly. It was soon determined that the warrant under which he had been arrested had been recalled several weeks before when a 1977 federal firearms indictment had been dismissed at the request of the government. Apparently the record of that dismissal had not been entered in district court records at the time of Martinson's arrest. Martinson was promptly released. But the ATF did not return the guns.

While Martinson was in custody a public defender was appointed to represent him. After his release from jail, the public defender filed a motion on his behalf in federal court under Rule 41(e), Fed.R.Crim.P., seeking a court order for return of the guns. The motion was docketed under the criminal case number assigned to the dismissed federal firearms indictment.

A hearing was held on the motion before a magistrate. Martinson testified that he owned the guns and rested. The government sought to cross-examine him as to where and under what circumstances he had brought the guns into the country from Canada where he had been residing, arguing that Martinson was suspected of having smuggled them across the international border. When Martinson invoked the Fifth Amendment, his testimony as to his ownership of the guns was stricken as a sanction for interfering with the government's cross-examination. The district court accepted the magistrate's recommendation and denied return of the guns.

Martinson promptly filed a motion for reconsideration. The government did not respond to the motion for nearly a year, at which time it continued to resist any return of the guns. The district court ultimately denied the motion for reconsideration in May 1985. Martinson appealed that denial to this court.

During the year following the hearing before the magistrate and the notice of appeal to this court, the government brought no charges against Martinson but the ATF continued to retain the guns. In its briefing of this appeal the government strenuously resisted their return, persisting in its speculation that they had been smuggled from Canada. However, at oral argument, in response to our inquiry, the government admitted that the ATF had long since abandoned its investigation of Martinson and the U.S. Attorney was not seeking any new indictment.

After oral argument, the government advised the court that the ATF has destroyed the guns pending this appeal. The destruction of the guns had not been mentioned theretofore. Accordingly, we ordered the government to explain its conduct, and suggested to Martinson that he respond to the issue of mootness.

We were thereupon belatedly informed that administrative forfeiture proceedings had been commenced during the time Martinson's motion for reconsideration was pending before the district court and that the guns had been destroyed pursuant to those proceedings. In response, Martinson's counsel informed us that he had requested in writing that the forfeiture proceedings be suspended pending a ruling on the motion for reconsideration and that the ATF had agreed to such a suspension. Nevertheless, we were informed that without further notice to Martinson or his counsel, the guns were destroyed by the ATF six months prior to oral argument, while the appeal was pending in this court. The Assistant U.S. Attorney disclaimed any responsibility because, he alleged, the ATF was acting in a totally independent administrative proceeding, and he had no knowledge of the communications between Martinson's counsel and the ATF or of the destruction of the guns prior to oral argument.

This appeal began as a relatively straightforward case involving the return of property. It has now taken on new significance that raises other important questions concerning the conduct of the government. We do not undertake to resolve every question now because the record is not sufficiently clear for us to do so. A remand will be necessary. We do, however, address those matters clearly before us.

I. JURISDICTION AND MOOTNESS

A district court has jurisdiction to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant. See, e.g., Richey v. Smith, 515 F.2d 1239, 1243 (5th Cir.1975); Application of J.W. Schonfeld, Ltd., 460 F.Supp. 332, 334-35 & n. 2 (E.D.Va.1978); see generally DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) (discussing appealability of rulings on such motions). Such motions are treated as civil equitable proceedings even if styled as being pursuant to Fed.R.Crim.P. 41(e). Goodman v. United States, 369 F.2d 166, 168 (9th Cir.1966); Mr. Lucky Messenger Service, Inc. v. United States, 587 F.2d 15, 16-17 (7th Cir.1978); Richey, 515 F.2d at 1245; United States v. Mid-States Exchange, 620 F.Supp. 358, 359 (D.S.D.1985); see Weldon v. United States, 196 F.2d 874, 875 (9th Cir.1952) (Rule 41 motions filed before pendency of criminal case are essentially civil actions to recover personal property); see also Meier v. Keller, 521 F.2d 548, 554 (9th Cir.1975) (district court has jurisdiction over independent, pre-indictment suits in equity seeking return of illegally obtained evidence), cert. denied, 424 U.S. 943, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976). In ruling on the motion, the court must take into account all equitable considerations. Meier, 521 F.2d at 554; VonderAhe v. Howland, 508 F.2d 364, 371 (9th Cir.1975); see also Robinson v. United States, 734 F.2d 735, 738 (11th Cir.1984); Angel-Torres v. United States, 712 F.2d 717, 719-20 (1st Cir.1983); Marshall v. Central Mine Equipment Co., 608 F.2d 719, 721 (8th Cir.1979); Mr. Lucky Messenger Service, 587 F.2d at 17; Hunsucker v. Phinney, 497 F.2d 29, 34 (5th Cir.1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975).

It is thus apparent that we have jurisdiction that has been timely asserted to order a return of Martinson's property. But the government has destroyed the property pending this appeal. We next consider whether it may also have destroyed our jurisdiction in doing so.

This court has jurisdiction over an appeal from a denial of a motion seeking only the return of property if there are no criminal proceedings pending against the movant. DiBella, 369 U.S. at 131-32, 82 S.Ct. at 660; United States v. Storage Spaces Designated Nos. 8 & 49, 777 F.2d 1363, 1365 (9th Cir.1985); Meier, 521 F.2d at 556; see DeMassa v. Nunez, 747 F.2d 1283, 1286 (9th Cir.1984). "Denial of review in such circumstances would mean that the Government might indefinitely retain the property without an opportunity for the movant to assert on appeal his right to possession." United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). Because no criminal proceeding is pending against Martinson, we have jurisdiction to hear this appeal.

The government claims the appeal is untimely. Because the motion was styled as one under Rule 41(e) and because the case has a criminal docket number, it asserts that this is a criminal matter and the motion for reconsideration did not stay the time for appeal. See Fed.R.App.P. 4(b). As the government concedes elsewhere in its brief, this is a civil case. The Federal Rules of Civil Procedure apply at least to the extent that Martinson's motion for reconsideration can be treated as being taken pursuant to Rule 52(b). See Goodman, 369 F.2d at 169 (applying Federal Rules of Civil Procedure); Application of J.W. Schonfeld, 460 F.Supp. at 334 (same). Thus the appeal is timely. See Fed.R.App.P. 4(a)(4)(ii).

"It is the historic purpose of equity to secure complete justice. The courts will be alert to adjust their remedies so as to grant the necessary relief." EEOC v. General Telephone Co., 599 F.2d 322, 334 (9th Cir.1979), aff'd 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980); see also Schaefer v. Gunzburg, 246 F.2d 11, 16 n. 2 (9th Cir.1957) (equity court should give final relief demanded by...