Seguin v. Eide

• Decision Date: 28 August 1981
• Docket Number: No. 79-4130,79-4130
• Citation: 645 F.2d 804
• Parties: Julie Lelath SEGUIN, Appellee, v. Donald L. EIDE, et ux., Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 804

645 F.2d 804

Julie Lelath SEGUIN, Appellee, v. Donald L. EIDE, et ux., Appellant.

No. 79-4130.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 11, 1980.

Decided May 18, 1981.

Rehearing and Rehearing En Banc Denied Aug. 28, 1981.

Charles Pinnell, Seattle, Wash., for appellant.

Richard Pierson, Seattle, Wash., for appellee.

Appeal from the United States District Court for the Western District of Washington.

Before GOLDBERG, ^* Senior Judge, KILKENNY, Senior Judge, and BOOCHEVER, Circuit Judge.

BOOCHEVER, Circuit Judge:

This is an appeal from an adverse personal judgment against Donald Eide, a district director of United States Customs. Ms. Seguin brought a Bivens -type action ¹ against Eide, alleging that customs agents who seized her automobile violated her fifth amendment due process rights when they failed to refer her case promptly to the United States Attorney for forfeiture proceedings. Eide maintains that: (1) as a matter of law, the period between the time the seizure was reported to him and referral for forfeiture was too short to amount to a due process violation; (2) he is covered by official immunity; (3) no Bivens -type action can be maintained because Seguin could have pursued other remedies; and (4) the damage award was excessive. We agree with this latter contention and remand the case for a redetermination of damages, but conclude that Eide is personally liable.

I. FACTS

On February 5, 1975, David Benson, who identified himself as Michael Morrison presented an air waybill to a customs inspector at the Seattle-Tacoma International Airport. Benson attempted to pick up two packages from South Africa. Ms. Seguin accompanied Benson to the airport in Benson's automobile. She testified that Benson did not feel well and did not want to drive alone. The customs inspector became suspicious of Benson and told him that he was not going to release the packages until he had them appraised. Benson gave the inspector Ms. Seguin's number to call when the appraisal was completed. When Benson and Seguin left, the inspector opened the packages and found forty-four South African gold Krugerrands secreted in the frames of two plaques.

Special agent Hightower determined that Krugerrands were merchandise subject to declaration. In consultation with the United States Attorney's office, he arranged a controlled delivery of the packages. On February 7, a freight agent called Benson at Ms. Seguin's number to notify him that the packages could be cleared.

That day Ms. Seguin drove Benson to the airport in her car, a 1974 Dodge Dart. After Benson picked up the plaques, Seguin drove him back to Seattle where she left him and the packages at a house at 416 35th Avenue. About two hours later, customs agents executed a search warrant of the house and arrested Benson and his wife. The Bensons were jointly indicted for smuggling. David Benson was charged with entering merchandise into the United States under a false declaration.

Hightower called Seguin's lawyer on February 12 to tell him that he was considering seizing her car for forfeiture because of its use in smuggling. The next day, Hightower took the car from Seguin's driveway and drove it to the Federal Building. The case was referred to Mr. Eide on February 14, 1975.

In an attempt to get her car back, Ms. Seguin wrote a letter to Eide on February 25. She explained that she was a 73-year-old, partially crippled widow who needed her car to move musical instruments. She stated that she took Benson to the airport because he was a member of her church and that she frequently did errands of this kind for the church. She said that she did not know anything about the contents of the packages. On March 19, 1975, Eide responded that her application for relief was under consideration.

On May 15, 1975, the district court dismissed the smuggling count against Benson and his wife because the court concluded that Krugerrands were currency, not merchandise. The government voluntarily dismissed the false declaration count against Benson the next day. Eide was informed of these events by Seguin's lawyer on or before May 27. On June 10, the Justice Department advised the United States Attorney's office not to take an appeal from the district court's dismissal of the smuggling count.

Despite the failure of the criminal case against the Bensons, Eide did not release Seguin's car. Instead, on July 3, Customs referred the case to the United States Attorney's office for a judicial forfeiture. The United States Attorney's office declined to bring a forfeiture action. The car was finally released on August 6, 1975, approximately six months after it was seized.

Seguin initially brought her damage action in King County Superior Court against both Hightower ² and Eide. The government removed the case to federal district court, where a jury ultimately rendered a general verdict in favor of Hightower but against Eide in the amount of $7,300. The theory of Seguin's case against Eide was that he had violated Seguin's due process rights by failing to refer her case to the United States Attorney's office promptly once the car had been seized. After Eide's motion for a new trial was denied, he brought this appeal.

II. THE DUE PROCESS VIOLATION

Title 19 of the United States Code section 1595(a) and cases interpreting that section provide that any type of vehicle may be seized and forfeited if there is probable cause to believe that it was used to facilitate the importation of illegal goods into the United States. The innocence of the owner is not usually a defense. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). ³

Once an agent seizes property for forfeiture, he has a duty to report the seizure "immediately" to the appropriate district customs officer. 19 U.S.C. § 1602. After a forfeiture case has been referred to a United States Attorney by a district customs officer, it is the United States Attorney's duty to investigate the facts "immediately," and if necessary to begin legal proceedings "forthwith." 19 U.S.C. § 1604. As to the intervening period of time between reporting a seizure and referral, when a customs director is in possession of an article, the law now provides that he shall "promptly" report the seizure to the United States Attorney. 19 U.S.C. § 1603. The word "promptly" was not added to section 1603 until 1978, three years after the seizure of Seguin's car. There could be little doubt before this amendment, however, that this was the appropriate standard placed upon Eide.

In United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), the Court considered a seizure of photographs under 19 U.S.C. § 1305(a). That section allows customs agents to seize obscene material that is being imported into the United States. Once a seizure has taken place, the government must bring a forfeiture proceeding in district court. Like section 1603 before the 1978 amendment, section 1305(a) does not provide for any time limit between an initial seizure and institution of judicial proceedings. The Supreme Court concluded, however, that to save the statute from being unconstitutional, only a fourteen-day period might be allowed. Id. at 373-74.

There are certainly differences between a case presenting an issue of prior restraint under the first amendment, such as Thirty-Seven Photographs, and a case such as this one which presents a question of due process. The implication of the Court's decision, however, is that lengthy and unexplained delays will not be tolerated. See White v. Acree, 594 F.2d 1385, 1388 (10th Cir. 1979).

In United States v. One 1970 Ford Pickup, 564 F.2d 864, 866 (9th Cir. 1977), we stated:

From the standpoint of the claimant, the stage in the procedures at which excessive delay occurs is irrelevant. His concern, and the concern of the statutory scheme, is the quick and efficient determination of the property rights in the confiscated vehicle. Furthermore, if reasonable time limits are not placed upon the application of §§ 1602-1604, a question of the constitutionality of the statutes could be raised.

See also, Sarkisian v. United States, 472 F.2d 468, 471 (10th Cir.), cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973).

The judge instructed the jury that Eide had a duty to either report the forfeiture of Seguin's car to the United States Attorney promptly so that forfeiture proceedings could begin, or to release it. The court further instructed the jury that promptness had to be inferred "in light of all relevant facts and circumstances." This instruction comports with the law.

Eide contends that the court should have ruled as a matter of law that the delay between seizure and referral was not excessive. He maintains that no court has found a due process violation where the delay between a seizure and referral has been as short as four months and nineteen days, the period from February 14, 1975 when the seizure was reported to July 3, 1975.

Several courts have concluded that there was no due process violation where there was a far longer delay between seizure and referral than there was in this case. One similarity among these cases, however, is that administrative investigation before referral of the claim caused the delay. ⁴ In some cases the courts specifically accepted the position, rejected by this court, that filing an administrative petition can toll the period between seizure and referral. The rule in this circuit is that filing a petition for remission under section 1618 ⁵ does not excuse the government from referring a case promptly. Ivers v. United States, 581 F.2d 1362, 1372 (9th Cir. 1978). ⁶

There are sufficient facts from which a jury could find that Eide did not act promptly. From Seguin's letter, Eide knew or should have known of the possible hardship. The underlying criminal indictment was dismissed. Although the...