Clymore v. U.S.

• Citation: 164 F.3d 569
• Decision Date: 06 January 1999
• Docket Number: No. 97-2319,97-2319
• Parties: 1999 CJ C.A.R. 1281 Craig CLYMORE, also known as James Burchell, also known as Steve Brown, also known as Kevin Riley, also known as Wayne Samuel Powell, also known as Cliff G. Wilson, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 569

164 F.3d 569

1999 CJ C.A.R. 1281

Craig CLYMORE, also known as James Burchell, also known as Steve Brown, also known as Kevin Riley, also known as Wayne Samuel Powell, also known as Cliff G. Wilson, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 97-2319.

United States Court of Appeals Tenth Circuit.

Jan. 6, 1999.

Craig Clymore, Plaintiff-Appellant, pro se.

John J. Kelly, United States Attorney, and Stephen R. Kotz, Assistant U.S. Attorney, Albuquerque, NM, for Defendant-Appellee.

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff appellant, Craig Clymore, pled guilty to conspiracy to knowingly and intentionally possess with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2. Sometime after his incarceration, Clymore, proceeding pro se, filed a motion for return of property pursuant to Fed.R.Crim.P. 41(e) seeking the return of nine items of property forfeited in various state and federal proceedings. The district court adopted the report and recommendation of the magistrate judge denying Clymore's motion for summary judgment and granting that of the government. However, contrary to the magistrate judge's recommendation that only some of Clymore's claims be dismissed with prejudice, the district court dismissed all claims with prejudice. On appeal, Clymore raises various challenges to the conclusions of the district court. ¹ We address those issues in order.

I.

We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed. R. C.V. P. 56(c). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly applied by the district court.

Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996) (quotation omitted).

As did the district court, we separate the nine forfeited items into four distinct categories. The first category consists of items subject to judicial forfeiture: a 1990 Honda Accord judicially forfeited in 1991 in the United States District Court for the Eastern District of Washington, and two items forfeited in New Mexico state judicial proceedings--a Cessna TU 206 aircraft Tail No. N2691X and a 1988 Ford truck. The district court, citing United States v. Madden, 95 F.3d 38 (10th Cir.1996), held that Rule 41(e) could not be used to contest judicial forfeitures. Clymore argues that, while this may be the case with regard to federal judicial forfeitures, Rule 41(e) is still available to challenge state judicial forfeitures. We disagree.

Initially, we note that Rule 41(e) is an equitable remedy, see Floyd v. United States, 860 F.2d 999, 1003 (10th Cir.1988), available to Mr. Clymore only if he can show irreparable harm and an inadequate remedy at law, see id.; see also Blinder, Robinson & Co. v. United States (In re 6455 S. Yosemite), 897 F.2d 1549, 1556 (10th Cir.1990) (same with pre-indictment 41(e) motion). Assuming Mr. Clymore has state avenues of relief open to him, he cannot show an inadequate remedy at law.

Apart from principles of equity, however, there are some limited circumstances under which Rule 41(e) can be used as a vehicle to petition for the return of property seized by state authorities. Those circumstances include actual federal possession of the property forfeited by the state, constructive federal possession where the property was considered evidence in the federal prosecution, or instances where property was seized by state officials acting at the direction of federal authorities in an agency capacity. See United States v. Solis, 108 F.3d 722, 722-23 (7th Cir.1997) (denying Rule 41(e) motion where there was no evidence of federal possession or federal direction of state seizure); see also United States v. White, 718 F.2d 260, 261 (8th Cir.1983) (denying Rule 41(e) motion where United States did not have possession of property); cf. United States v. Fabela-Garcia, 753 F.Supp. 326, 328 (D.Utah 1989) (finding federal constructive possession where state had deferred to the United States "in all aspects of the prosecution").

In his reply brief, Clymore attaches various documents establishing the involvement of federal law enforcement officers with his prosecution and conviction. None of those documents, however, specifically refer to the property at issue. Clymore's assertion that federal authorities controlled the ongoing investigation and were "involved" in the seizures, without more, is insufficient to establish the extensive federal possession or control necessary to make Rule 41(e) the appropriate vehicle by which to recover the state-forfeited property. ²

Because the district court did not have subject matter jurisdiction over the state-forfeited Cessna TU 206 aircraft and the 1988 Ford truck, the claims regarding them should have been dismissed without prejudice. Upon remand, the district court is directed to amend its order of dismissal to so indicate.

II.

The second category of property identified by the magistrate judge is approximately $2,000 in United States currency. Because Clymore acknowledges that this property was judicially seized by the state of New Mexico, his claim for return of the property pursuant to Rule 41(e) fails for the reasons discussed above. This claim, too, should have been dismissed without prejudice.

III.

The third category of property consisted of a second Cessna TU 206 aircraft Tail No. N7352G, $4,510 in United States currency, approximately three million pesos in Mexican currency, and an ICOM portable transceiver with battery pack. These items were the subject of federal administrative forfeiture. The district court found, and the government conceded, that Clymore had not received constitutionally adequate notice regarding the forfeiture of these items. The issue on appeal is what a district court should do under these circumstances when the statute of limitations prevents commencement of a judicial forfeiture.

Mr. Clymore essentially argues that a forfeiture without adequate notice is void and that, because the statute of limitations has run against the government, his property or its value should be returned to him. ³ The district court examined the merits of the forfeitures and found that, because Mr. Clymore could not prevail on the merits, his claims must fail. We reverse.

In United States v. Rodgers, 108 F.3d 1247 (10th Cir.1997), this court found that notice was constitutionally ineffective where the DEA failed to mail seizure notices to the defendant at a residence known to the agency. See id. at 1251. The court ordered that the forfeitures be vacated, thus treating the defective forfeiture as void. See id. at 1255; see also Aero-Medical, Inc. v. United States, 23 F.3d 328, 331 (10th Cir.1994) (vacating administrative forfeiture where notice was inadequate); Armendariz-Mata v. United States Dep't of Justice, 82 F.3d 679, 683 (5th Cir.1996) (same); United States v. Volanty, 79 F.3d 86, 88 (8th Cir.1996) (noting that "[w]hen an administrative forfeiture is void for lack of notice, a district court must set aside the forfeiture Declaration and order DEA either to return [the] property or commence judicial forfeiture in the district court" (quotation omitted)); United States v. 2751 Peyton Woods Trail, 66 F.3d 1164, 1166-67 (11th Cir.1995) (dismissing government's forfeiture complaint where petitioner received neither notice nor a hearing before the issuance of warrants seizing real property); United States v. Giraldo, 45 F.3d 509, 512 (1st Cir.1995) ("If the notice turns out to have been inadequate, the forfeiture is void."). Thus, applying Rodgers, the forfeitures here must be vacated.

In an effort to avoid this result, the government cites United States v. Deninno, 103 F.3d 82 (10th Cir.1996). In that case, the defendant's Rule 41(e) motion asserted that, although he had been served in jail with notice of the forfeiture of his property, he was deprived of writing materials and postage with which to object to the proceedings. Defendant's uncontested allegation thus established that he had not received constitutionally adequate notice.

Instead of vacating the offending forfeiture and remanding the case, the panel proceeded to address the merits of the defendant's motion. After examining the record, the panel concluded that dismissal was warranted because the defendant had failed to "offer any plausible legal theories upon which to challenge the forfeitures." Id. at 85. The court noted that the defendant had been convicted of various drug offenses and that "[a]ll of the property at issue in [the] case was seized from a hotel where Mr. Deninno was carrying out these crimes," id. at 86, thus making the property forfeitable under both state and federal statutes. Because the defendant could "offer [no] reason why the property at issue [was] not subject to forfeiture," id., he could not show that he was prejudiced by the defective notice. The court reasoned that "[u]psetting the forfeitures because of the alleged procedural faults, when Mr. Deninno appears to have no basis for the return of the property once the faults are remedied in new proceedings, would serve no purpose other than to waste limited judicial resources." Id. at 86.

Deninno is distinguishable from this case. As the magistrate judge acknowledged, there was no statute of limitations problem apparent in Deninno. ⁴ The panel, therefore, had the option of either...