U.S. v. $23,407.69 in U.S. Currency, 81-1231

• Decision Date: 19 September 1983
• Docket Number: No. 81-1231,81-1231
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. $23,407.69 IN U.S. CURRENCY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 162

715 F.2d 162

UNITED STATES of America, Plaintiff-Appellant, v. $23,407.69 IN U.S. CURRENCY, Defendant-Appellee.

No. 81-1231.

United States Court of Appeals, Fifth Circuit.

Sept. 19, 1983.

Archie Carl Pierce, Asst. U.S. Atty., Austin, Tex., for plaintiff-appellant.

Cohen & Cangelosi, Gary J. Cohen, Austin, Tex., for defendant-appellee.

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

Before DYER ^*, JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

In this case the government, appellant, undertakes to accomplish the forfeiture of the sum of $23,407.69 in United States currency seized in connection with a lawful drug-related arrest. The appellee opposes the forfeiture on the ground the thirteen month delay from the time of the seizure until the complaint for forfeiture was filed by the government deprived him of his constitutional and statutory rights to a prompt resolution of the forfeiture issue. The district court agreed with the appellee's assertion that the delay was inordinate and unjustified. The court denied the government's forfeiture petition. We affirm.

On January 3, 1979, James R. Bishop was arrested in Austin, Texas, by local police officers pursuant to an outstanding federal arrest warrant for conspiracy to import marihuana. The ownership of the vehicle he was driving was listed in the name of someone whose address was in Houston and who was not in the car. The other two persons who were in the car with Bishop at the time of the arrest disavowed any interest in the automobile or its contents. Under standard police procedures the vehicle was then impounded.

After impoundment, the inventory search of the car turned up two fourteen pound bales of marihuana, a map of Mexico, a list of the license plate numbers of drug enforcement officers in Austin, and $23,407.69 in United States currency. The currency was promptly seized by the United States Government under 21 U.S.C. § 881(a)(6) as "moneys" used or intended to be used in drug-related transactions.

In spite of informal inquiries from time to time by Bishop concerning the sum of money, it was not until six months later, on July 6, 1979, that the United States Government filed an administrative notice of its intention to seek forfeiture of the $23,407.69. At some time after the filing of this notice, Bishop filed a petition in remission of forfeiture, but it was not until over a year after the original seizure of the funds, on February 21, 1980, that the United States Attorney's Office filed its verified complaint for forfeiture in the United States District Court. Approximately three weeks later, Bishop was notified that his petition in remission was denied.

The district court denied forfeiture of the sum of money on the ground that the delay of thirteen months before the filing of the forfeiture complaint violated the statutory requirement that the government act without delay and also constitutional requirements involving a deprivation of property without due process of law under the Fifth Amendment.

While 21 U.S.C. § 881(a)(6) authorizes the forfeiture of "moneys" traceable to drug dealing, the procedures required are established by specific reference in the statute as those provided for in the seizing, forfeiture and condemnation of property for violations of the customs laws. 21 U.S.C. § 881(d). Those customs laws are found in 19 U.S.C. §§ 1602-1615. Of particular importance in this case is the provision of 19 U.S.C. § 1603 which requires the "... officer to report promptly such seizure or violation to the United States Attorney for the district in which such ... seizure was made", and the provision of § 1604: "It shall be the duty of every United States Attorney immediately to inquire into the facts of cases reported to him by customs officers and the laws applicable thereto, and if it appears probable that any fine, penalty, or forfeiture has been incurred by reason of such violation, for the recovery of which institution of proceedings in the United States District Court is necessary, forthwith to cause the proper proceedings to be commenced and prosecuted without delay, for the recovery of such fine, penalty, or forfeiture in such case...."

The opposition to forfeiture in this case arises from the six months delay in giving notice of forfeiture and the total of thirteen months delay in bringing a forfeiture complaint in the federal district court.

After oral argument, we held this case in abeyance pending a Supreme Court decision in United States v. $8,850 in U.S. Currency, 645 F.2d 836 (9th Cir.1981), cert. granted, 455 U.S. 1015, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982), because of the close relationship of the facts of that case to the facts here involved. The United States Supreme Court has now rendered its decision. We have received additional briefing by the parties in the light of that case, and we now decide this case.

The Supreme Court case which we must follow is United States v. $8,850 in U.S. Currency, --- U.S. ----, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983). In that case the United States customs officials seized $8,850 in currency from the claimant as she passed through customs at Los Angeles International Airport. As pointed out above, the statutes provided for the seizing of currency by customs officials are also applicable in the case sub judice by specific reference in 21 U.S.C. § 881(d).

The Supreme Court case involving the seizure of the $8,850 (hereafter referred to as the $8,850 Case ) presented an eighteen month delay between the time of the seizure and the filing by the government of the civil proceedings for forfeiture of the currency. The Court, after a careful analysis, found justification for the eighteen month delay and upheld the right of the government to forfeiture. The Court held that the four-factor balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is to be used for determining whether a delay in filing a forfeiture action is reasonable. While Barker dealt with the Sixth Amendment right to a speedy trial, the Court nevertheless recognized that the issue involving the length of time that a citizen is deprived of some property by the government is best analyzed under the Barker balancing inquiry. The four factors are: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 103 S.Ct. at 2012.

The Court in the $8,850 Case stated that the "overarching factor" was the length of the delay. The Court found that the delay of eighteen months was "quite significant". The Court then turned its attention to the government's justification for the delay. The government took the extreme position that a pending administrative petition for return of the money completely tolled the requirement of filing a judicial proceeding. The Court refused to accept such a black letter principle. But the matter of greatest importance in the analysis of the Court was its stress upon the fact that the government had undertaken an active investigation shortly after the seizure of the money. The Court said: "During the initial seven months after the seizure the Customs Service was determining whether to grant the petition (for mitigation or remission). This investigation required responses to...