971 F.2d 1376 (9th Cir. 1992), 90-16636, United States v. James Daniel Good Property Titled in Name of James Daniel Good

Docket Nº:90-16636.
Citation:971 F.2d 1376
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. JAMES DANIEL GOOD PROPERTY TITLED IN THE NAME OF JAMES DANIEL GOOD, Described in Transfer Certificate Title No. 249, 207, Tax Map Key No. 1-6-008-233(3), Located at Keeau, District of Puna, Island and County of Hawaii, State of Hawaii, Together With Appurtenances and Improvements, Defendant-Appellant
Case Date:April 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1376

971 F.2d 1376 (9th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

JAMES DANIEL GOOD PROPERTY TITLED IN THE NAME OF JAMES

DANIEL GOOD, Described in Transfer Certificate Title No.

249, 207, Tax Map Key No. 1-6-008-233(3), Located at Keeau,

District of Puna, Island and County of Hawaii, State of

Hawaii, Together With Appurtenances and Improvements,

Defendant-Appellant.

No. 90-16636.

United States Court of Appeals, Ninth Circuit

April 24, 1992

Argued and Submitted Dec. 11, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc

Sept. 10, 1992.

Page 1377

[Copyrighted Material Omitted]

Page 1378

Christopher J. Yuen, Hilo, Hawaii, for defendant-appellant.

Beverly A. Wee, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

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

Before: ALDISERT, [*] GOODWIN, and NOONAN, Circuit Judges.

GOODWIN, Circuit Judge:

This appeal challenges the civil forfeiture of a home pursuant to 21 U.S.C. § 881(a)(7), 1 the provision of the Controlled Substance Act that authorizes the forfeiture of real property. James Daniel Good challenged the forfeiture as untimely and as a violation of due process. The district court, exercising jurisdiction under 21 U.S.C. § 881(b), granted the government's motion for summary judgement. The district court found the action to be timely and in accordance with due process. Notice of Appeal was filed in compliance with Fed.R.App.P. 4(a). Our jurisdiction is based on 28 U.S.C. § 1291. We reverse and remand on the timing issue; we reverse on the due process question, finding that Good's rights were violated, and we affirm the district court in all other respects.

I.

On January 31, 1985, pursuant to a search warrant, Hawaii state police officers uncovered approximately 89 pounds of marijuana, marijuana seeds, vials containing hashish oil, and other drug paraphernalia. Good pleaded guilty on July 3, 1985 to promoting a harmful drug in violation of Hawaii Revised Statutes § 712-1245(1)(b). He served one year in jail and was placed on probation. He was also required in a state court forfeiture action to surrender $3,187 in cash found on the premises.

Some four years later, on August 8, 1989, the United States filled the present action, seeking to forfeit Good's house and property pursuant to § 881(a)(7). On August 21, 1989, a Seizure Warrant directing U.S. Marshals to seize the defendant property was issued by a magistrate judge of the U.S. District Court of Hawaii. The affidavit in support of the seizure warrant was sworn by a DEA special agent and relied exclusively on evidence gathered in the January 31, 1985 state police search of Good's house.

Good filed a timely claim for the property. After discovery, in July 1990, Good filed a motion for summary judgement and a motion for rents on the property collected by the government after the seizure. The government filed its own motion for summary judgement and moved to strike Good's claim. The district court denied Good's motions and granted the government's. This appeal followed.

II.

The United States sought forfeiture of Good's home four years after Good was convicted and sentenced on state drug charges and four and one half years after the underlying predicate acts occurred. Most of the forfeiture cases concerned with procedural and timing issues deal with lengthy delays between the initial seizure of property and the instigation of forfeiture proceedings. This case, however, is concerned with the effects of a lengthy delay between the underlying predicate acts and the initiation of forfeiture proceedings.

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The contention that the forfeiture was untimely involves the interpretation of statutes and is subject to review as a question of law. Bunting v. United States, 884 F.2d 1143, 1145 (9th Cir.1989).

The Controlled Substance Act does not establish procedures to govern civil forfeiture, rather, section 881 incorporates the procedures outlined in the customs laws.

The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter ...

21 U.S.C. § 881(d). This court interprets 21 U.S.C. § 881 as incorporating the provisions "set forth in Title 19 of the United States Code, sections 1602-21." United States v. One 1971 BMW 4-Door Sedan, 652 F.2d 817, 819 (9th Cir.1981).

Section 1621 of the customs laws provides the statute of limitations for initiating customs forfeiture and penalty proceedings. It reads in pertinent part:

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.

19 U.S.C. § 1621. The customs laws also outline specific obligations for customs agents and officers, as well as for U.S. attorneys and the Attorney General.

Good argues that the five year limitations period in section 1621 establishes an outer limit and that actions filed within the five year period may still be untimely if filed in violation of other relevant sections of the customs laws, see 19 U.S.C. §§ 1602-04. 2 These other provisions establish a series of internal notification and reporting requirements where customs agents must report to customs officers, see 19 U.S.C. § 1602, customs officers must report to the United States attorney, see 19 U.S.C. § 1603, and the Attorney General must "immediately" and "forthwith" bring a forfeiture action if he believes that one is warranted, see 19 U.S.C. § 1604.

In One 1971 BMW 4-Door Sedan this court held that the mandates of sections 1602, 1603 and 1604 were applicable to 21 U.S.C. § 881 forfeitures. In that case, however, the Drug Enforcement Administration ("DEA") had already seized the property in question.

Section 1602 impose[s] on the seizing officer a duty to report the seizure immediately to the appropriate DEA official; section 1603 require[s] the DEA official to report the seizure promptly to the appropriate United States Attorney for prosecution of the forfeiture and to include in that report a statement of all facts relevant to the seizure; and section 1604 require[s] the United States Attorney immediately upon receipt of that report to inquire into the facts of the case and the laws applicable thereto to determine "if it appears probable that ... forfeiture has been incurred," and to institute proceedings "forthwith," unless, upon inquiry and examination, he decide[s] "that such proceedings probably cannot be sustained or that the ends of public justice do not require that they be instituted or prosecuted."

652 F.2d at 819-20. 3

We have found no case which interprets the statute of limitations, section 1621, in

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light of the DEA's obligations under sections 1602-04. Some courts have applied the statute of limitations to various forfeiture actions without considering the possible limiting effects of sections 1602-04. The Third Circuit simply applied the five year rule in deciding that a forfeiture action initiated in 1989, based on predicate acts discovered in 1986, was not time barred. United States v. A Parcel of Land, Bldgs., App. & Imp., 937 F.2d 98, 105 (3rd Cir.1991), cert. granted, --- U.S. ----, 112 S.Ct. 1260, 117 L.Ed.2d 490, and cert. denied, --- U.S. ----, 112 S.Ct. 1264, 117 L.Ed.2d 492 (1992). The court found that there had been no undue delay, but was not asked to consider whether government officials complied with sections 1602-04. Similarly, two district courts have applied the five year rule without discussing the issue before this court. See United States...

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