U.S. v. Elias

• Decision Date: 11 December 1990
• Docket Number: No. 89-16707,89-16707
• Citation: 921 F.2d 870
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Edward ELIAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 870

921 F.2d 870

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Edward ELIAS, Defendant-Appellant.

No. 89-16707.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 15, 1990.

Decided Dec. 11, 1990.

Thomas E. Higgins, Jr., Tucson, Ariz., for defendant-appellant.

John S. Leonardo, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

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

Before WALLACE, ALARCON and WIGGINS, Circuit Judges.

ALARCON, Circuit Judge:

Dennis Edward Elias appeals from the dismissal of his motion, filed pursuant to Federal Rule of Criminal Procedure 41(e), ¹ for the return of $14,830 and a Chevrolet IROC automobile. The Drug Enforcement Agency (DEA) had seized the property as an incident to Elias' arrest in a private residence.

The district court denied the motion for the return of property based on the representation of the parties that civil administrative forfeiture proceedings had been initiated by the government prior to the filing of the Rule 41(e) motion.

Elias contends that the district court was required to return the property pursuant to a Rule 41(e) motion upon the dismissal of the criminal action on July 7, 1989, based on the lack of probable cause to arrest him.

We must decide whether the district court properly dismissed the Rule 41(e) motion because the government had previously initiated administrative forfeiture proceedings which provided the claimant with an adequate remedy at law for the return of the property that was seized. We affirm because we conclude that Elias had an adequate remedy at law at the time he initiated these equitable proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Elias was arrested on February 25, 1989, by Officers of the Drug Enforcement Administration (DEA agents). As an incident thereto, the DEA agents searched Elias' person and seized $14,830, a portable cellular phone, and "some drug ledgers" that Elias was carrying on his person. The DEA agents also seized Elias' 1987 Chevrolet automobile.

Elias was indicted on March 22, 1989, for conspiracy to possess with intent to distribute approximately 1000 pounds of marijuana. Elias filed a motion to dismiss the indictment on April 24, 1989, on the ground that the evidence was insufficient. The judge granted this motion on July 7, 1989.

On September 5, 1989, Elias filed a motion for the return of the automobile, the money, and the cellular telephone. The pleading was styled "Motion for Return of Seized Property (Criminal Rule 41(e))."

On September 12, 1989, the government filed its opposition to the motion for the return of property. The pleading informed the district court that administrative forfeiture proceedings had been initiated in April by the government's service of notice of its intent to forfeit the seized property and publication of the notice for three consecutive weeks in May and July of 1989.

The opposition also stated that "[a]s Elias was informed by the notice that was served upon him, he could have caused the judicial determination of the forfeiture by filing a claim and cost bond with DEA. This he failed to do." The opposition concluded with the request that the court "deny the Motion for Return of Property, leaving the disposition of the seized property to be resolved in the context of the civil forfeiture."

On October 4, 1989, Elias filed a pleading styled as a "Supplement to Motion for Return of Seized Property." The motion stated "[n]o forfeiture proceedings have been initiated herein. The Petition for Remission and Mitigation was filed timely in both the seizure cases herein and have [sic] not been ruled upon to this date."

A hearing was conducted on October 5, 1989, on Elias' motion for return of his property. Elias' counsel informed the court that "there was a forfeiture action and a notice of seizure, and there is no forfeiture action pending now, not any judicial forfeiture. In fact, the notice of seizure as to the $14,830 was filed and noticed August 31, 1989." In response, the government informed the court that Elias' counsel had been given notice of "the deadlines and the procedures that had to be followed in order to cause that administrative forfeiture to become judicial, in which case he could have concentrated on the forfeiting problems, but he failed to do that." Elias' counsel replied that "the bond, the claims, the petition, they were all filed." Evidence supporting this statement was not presented to the district court. The court took the issues raised by the motion and the opposition under submission. On November 21, 1989, the court entered the following order: "IT IS ORDERED that the Motion is DENIED; defendant can litigate the issue in the civil forfeiture proceeding."

II. ARGUMENTS ON APPEAL

Elias contends that because the government did not file an appeal from the order granting the motion to dismiss the indictment against him, "the property should have been ordered returned" by the district court. He argues that, pursuant to 21 U.S.C. Sec. 881-1, the government was required to file a notice of forfeiture "no later than July 25, 1989" because he filed a claim and cost bond for each property on May 25, 1989. No evidence was presented to the district court concerning the date the claims and cost bonds were filed. The government asserts in its responsive brief that because the appropriate claim and cost bond were not filed, judicial forfeiture proceedings were not initiated. The government also notes that, assuming that it failed to comply with the requirements of section 881-1, this alleged violation of a civil forfeiture statute cannot be litigated in a Rule 41(e) criminal proceeding.

III. DISCUSSION

Elias' primary contention on this appeal is that "[s]ince no civil forfeiture proceeding is pending, the rule in United States v. Martinson, 809 F.2d 1364 (9th Cir.1987) applies." Elias' reliance on our decision in Martinson is misplaced.

In Martinson, police officers seized nine 19th Century black powder Winchester rifles as an incident to the arrest of the driver of a truck and trailer because of an outstanding federal warrant. Id. at 1365. Martinson was released shortly after being taken to jail, because the warrant had been recalled but had not yet been entered into the district court's records. Id. at 1366.

While Martinson was in custody, a public defender was appointed to represent him. The public defender filed a motion pursuant to Rule 41(e) seeking return of the firearms. Id. However, this motion was denied. Id.

A motion for reconsideration was filed in the district court. While this motion was pending, administrative forfeiture proceedings were commenced. Id. at 1366. Martinson's attorney requested that the administrative proceedings be suspended. The government agreed. The motion to return the firearms was denied. While the Martinson matter was pending on appeal, and prior to oral argument, the firearms were destroyed by the government. Id.

We held in Martinson that the district court had equitable jurisdiction to entertain the motion for the return of property "even if styled as being pursuant to Fed.R.Crim.P. 41(e)." Id. at 1367. In holding that equitable jurisdiction was available under the facts presented in Martinson, however, we noted "this is not a case in which the property in question was forfeited pursuant to statute after adequate notice to the movant." Id. at 1368 n. 3 (emphasis added). We concluded in Martinson that it was necessary to exercise equitable jurisdiction "to secure complete justice." Id. at 1367 (quoting EEOC v. General Tel. Co., 599 F.2d 322, 324 (9th Cir.1979), aff'd, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)).

In the instant matter, the parties are in agreement that the government had initiated administrative forfeiture proceedings pursuant to statute after notice to Elias. The parties differ only regarding the legal sufficiency of the claims filed by Elias. In Martinson, the claimant had no legal remedy because the government improperly destroyed his property pursuant to administrative proceedings that should have been stayed. 809 F.2d at 1366-69. In this matter, Elias had a remedy at law pursuant to the administrative forfeiture scheme set forth in 19 U.S.C. Sec. 1608. Hence, Martinson offers no support for Elias' argument that the district court had equitable jurisdiction to entertain his motion.

This case is controlled by our decision in United States v. United States Currency, $83,310.78, 851 F.2d 1231 (9th Cir.1988). In United States Currency, the government seized $83,310.78 and notified its apparent owner of the seizure. Id. at 1232. After filing the required claim and bond, the owner filed a Rule 41(e) motion for return of the property. There were no criminal proceedings pending at this time and the government had not filed a civil forfeiture action. On the next day, the government filed a civil forfeiture action. Id. at 1233. We held that under these circumstances, the Rule 41(e) motion was properly dismissed. The reason for the dismissal was that Rule 54(b) of the Federal Rules of Criminal Procedure expressly provides that the rules are not applicable to "civil forfeiture of property." Id. (quoting Fed.R.Crim.P. 54(b)). We also declined to treat the Rule 41(e) motion as an equitable proceeding. "[W]hen a civil forfeiture proceeding is pending, there is no need to fashion an equitable remedy to secure justice for the claimant." Id. at 1235.

Elias attempts to distinguish United States Currency on the ground that no civil forfeiture proceeding was initiated by the government in this matter. His argument is unpersuasive. It is quite true that in United States Currency, the government filed an in rem forfeiture proceeding in the district court instead of relying on administrative forfeiture proceedings pursuant to 19 U.S.C. Secs. 1607-09, as in the matter sub judice. Both procedures give the claimant an adequate...