Harper, In re

Decision Date06 January 1988
Docket NumberNo. 87-1068,87-1068
Citation835 F.2d 1273
PartiesIn re Search and Seizure, Al James HARPER, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Lawrence J. Fleming, St. Louis, Mo., for appellant.

Joseph Moore, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and MAGILL, Circuit Judge.

FAGG, Circuit Judge.

Al James Harper appeals the district court's dismissal of a motion he filed under Rule 41(e) of the Federal Rules of Criminal Procedure seeking the return of twenty-nine thousand dollars seized from him by agents of the Drug Enforcement Agency (DEA). See 21 U.S.C. Sec. 881(a)(6). We affirm.

Harper's cash was seized after a search of his carryon bag by airport security officials at a checkpoint scanner. Although the circumstances present a tenuous case of probable cause for the seizure, the DEA agents testified they suspected the money was connected with drug trafficking. The agents told Harper his cash would be retained by the DEA pending civil forfeiture proceedings. No criminal charges were ever brought against Harper, and none are apparently contemplated.

After Harper filed his rule 41(e) motion for return of the seized money, the government instituted forfeiture proceedings by mailing and publishing a notice of intention to forfeit Harper's money. See 19 U.S.C. Sec. 1607(a); 21 U.S.C. Sec. 881(d); 21 C.F.R. Sec. 1316.75 (1987). The government contends this administrative forfeiture was complete when Harper failed to file a claim and post a bond within twenty days after receiving notice. See 21 C.F.R. Sec. 1316.77 (1987).

The government filed a motion to dismiss Harper's rule 41(e) motion, contending the district court should not exercise its equitable jurisdiction because Harper's motion resorted to the Federal Rules of Criminal Procedure to attack a completed civil forfeiture proceeding. See Fed.R.Crim.P. 54(b)(5). In response, Harper argued the district court's equitable jurisdiction attached when he first filed his motion--at a time when no civil forfeiture proceeding was underway that would make rule 54(b)(5) applicable. The district court dismissed Harper's motion.

Rule 41(e) is " 'a crystallization of a principle of equity jurisdiction.' " United States v. Rapp, 539 F.2d 1156, 1160 (8th Cir.1976) (quoting Smith v. Katzenbach, 351 F.2d 810, 814 (D.C.Cir.1965)). The equitable powers of the district court to order a preindictment return of property illegally seized by federal law enforcement officers "is invoked through the inherent disciplinary power of the court over officers of the court." Id. The applicability of equitable principles is thus compelled whether one brings an action under rule 41(e) or premises his claim on the general equity powers of the district court. See id. at 1160-61; Meier v. Keller, 521 F.2d 548, 554 (9th Cir.1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976); 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).

Harper was entitled to file a rule 41(e) motion for preindictment return of illegally seized property. United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 569, 103 S.Ct. 2005, 2014, 76 L.Ed.2d 143 (1983) ("If the claimant believes the initial seizure was improper, he [can] file a motion under Federal Rule of Criminal Procedure 41(e) for a return of the seized property."). Indeed, a rule 41(e) motion for return of seized property may be used as a basis "to trigger rapid filing of a forfeiture action." Id.; see also Pieper v. United States, 604 F.2d 1131, 1133 (8th Cir.1979). Even so, " 'it does not automatically follow that this unique power should be exercised whenever it exists.' " Meier, 521 F.2d at 554 (quoting Hunsucker, 497 F.2d at 34). The district court's equity jurisdiction to order the return of unlawfully seized property is "extraordinary * * * [and] is to be exercised with caution and restraint," Pieper, 604 F.2d at 1133, "and in accordance with familiar limitations on the granting of equitable relief," Meier, 521 F.2d at 554.

Although Harper had knowledge of the pending forfeiture proceeding, he allowed the matter to finalize without challenging the forfeiture or seeking a stay of the proceedings. Harper now claims he may attack that civil forfeiture by utilizing rule 41(e). We disagree. Harper cannot pursue an equitable remedy in the district court when he did not challenge in any way the very proceeding that forfeited his property in the first place. To do so would be the equivalent of impermissibly using the Federal Rules of Criminal Procedure to attack a civil forfeiture. Fed.R.Crim.P. 54(b)(5); see Rapp, 539 F.2d at 1160; see also In re Seizure Warrant, 830 F.2d 372, 374 (D.C.Cir.1987) (per curiam) ("Because proceedings under section 881 are civil in nature and there is no criminal proceeding with which the seizure is connected, appellant cannot avail himself of the relief provided by Fed.R.Crim.P. 41(e).").

Although equity is tolerant of errors of procedure and form, in this instance Harper has clearly ignored our admonition that the legality of a seizure should be tested in the forfeiting proceeding. Rapp, 539 F.2d at 1161 (citing Goodman v. Lane, 48 F.2d 32, 34 (8th Cir.1931)). Thus, we conclude the district...

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  • Matthews v. US
    • United States
    • U.S. District Court — Eastern District of Virginia
    • February 13, 1996
    ...challenge the seizure and forfeiture at the administrative level. See United States v. Price, 914 F.2d at 1511 (citing In re Harper, 835 F.2d 1273, 1274 (8th Cir.1988)). The crux of this line of logic lies in the difference between civil and criminal forfeitures. "The legal fiction underlyi......
  • City of Concord v. Robinson, No. 1:11–CV–734.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • November 28, 2012
    ...v. United States, 355 F.3d 1099, 1101–02 (7th Cir.2004); United States v. Castro, 883 F.2d 1018, 1020 (11th Cir.1989); In re Harper, 835 F.2d 1273, 1274 (8th Cir.1988), abrogated on other grounds by United States v. Woodall, 12 F.3d 791, 793–94 (8th Cir.1993); In re Seizure Warrant, 830 F.2......
  • Sterling v. US
    • United States
    • U.S. District Court — Eastern District of New York
    • October 12, 1990
    ...laws. Indeed, the cases discussing forfeitures similar to the forfeiture in this case support this interpretation. See In re Harper, 835 F.2d 1273 (8th Cir.1988); Boyd v. U.S. Dep't of Justice, 673 F.Supp. 660 (E.D.N.Y.1987); LaChance v. Drug Enforcement Admin., 672 F.Supp. 76 (E.D.N. Plain......
  • Concepcion v. US, CV 95-5337.
    • United States
    • U.S. District Court — Eastern District of New York
    • August 30, 1996
    ...the claimant is afforded the opportunity to test the legality of the seizure in the forfeiture proceeding. See In re Harper, 835 F.2d 1273, 1274 (8th Cir.1988). Consequently, once the administrative process has begun, the district court loses subject matter jurisdiction to adjudicate the ma......
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