U.S. v. Forty-Seven Thousand Nine Hundred Eighty Dollars ($47,980) in Canadian Currency

• Decision Date: 11 February 1986
• Docket Number: FORTY-SEVEN,No. 84-4419,84-4419
• Citation: 804 F.2d 1085
• Parties: UNITED STATES of America, Plaintiff-Appellee, v.THOUSAND NINE HUNDRED EIGHTY DOLLARS ($47,980) IN CANADIAN CURRENCY, Defendant, and BSP Investment and Development, Ltd., Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1085

804 F.2d 1085

UNITED STATES of America, Plaintiff-Appellee, v. FORTY-SEVEN THOUSAND NINE HUNDRED EIGHTY DOLLARS ($47,980) IN CANADIAN CURRENCY, Defendant and BSP Investment and Development, Ltd., Claimant-Appellant.

No. 84-4419.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 11, 1986. ^*

Decided Nov. 19, 1986.

Jeffrey Howe, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

Scott W. Reed, Coeur d'Alene, Idaho, for claimant-appellant.

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

Before WALLACE and THOMPSON, Circuit Judges, and STEPHENS, ^** District Judge.

WALLACE, Circuit Judge:

BSP Investment and Development, Ltd. (BSP) appeals from a judgment of civil forfeiture in favor of the United States. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

BSP is a Canadian corporation whose principal officers and shareholders are Stark and Pascoe. On February 22, 1979, Stark and Pascoe entered the United States by automobile, carrying with them $47,980 in Canadian currency, which belonged to BSP. Stark and Pascoe were routinely stopped at the United States Customs Port of Entry at Eastport, Idaho, and questioned regarding the purpose of their visit to the United States and what property they carried with them.

Inspection of their car produced a briefcase containing a large quantity of currency, packaged in envelopes. When the customs inspector asked Stark and Pascoe if they were carrying over $5,000, they lied to him, stating that they had only $4,000. When the customs inspector told Pascoe and Stark that he wished to count their currency, Stark and Pascoe produced three envelopes, containing a total of approximately $12,000. When the customs agent drew their attention to the reporting requirement for transportation of more than $5,000, Pascoe stated that he had not wished to be bothered with the disclosure forms, which he referred to as "I.R.S." forms. In view of the circumstances, however, Pascoe had a change of heart, and stated that he and Stark wished to declare the $12,000 they had produced. With further search, the customs inspector found additional envelopes of money, and was told that it amounted to approximately $20,000. Ultimately, $47,980 in Canadian currency was found in the briefcase by customs officers.

Customs authorities seized the currency because Stark and Pascoe had failed to declare it upon entry, as required by 31 U.S.C. Sec. 1101, recodified as 31 U.S.C. Sec. 5316. One day later, on February 23, 1979, the Customs Service sent Stark a "Notice of Seizure and Information for Claimants" offering three alternatives with respect to the seized currency. Stark was informed that if he did nothing the matter would be referred to the United States Attorney within 60 days for institution of judicial forfeiture proceedings. Stark could instead expressly request that the matter be immediately referred. Alternatively, he could file a petition for administrative relief. He was informed that by filing for administrative relief he would be requesting the Customs Service not to refer the matter to the United States Attorney for the institution of judicial forfeiture proceedings while the administrative petition was pending. On April 20, 1979, BSP filed a petition for administrative relief. Ten days later the Customs Service advised BSP that administrative relief would not be considered until the United States attorney decided whether to file criminal charges, because the currency might be used as evidence in a criminal trial. The criminal investigation ended when the Customs Service advised BSP on August 13, 1979, that no criminal prosecution would be pursued. Nearly four months later, on December 11, 1979, the Customs Service decided to deny remission of forfeiture and, on December 17, referred the matter to the United States Attorney for prosecution of a civil forfeiture action. Four months thereafter, on April 1, 1980, the United States Attorney filed this in rem forfeiture action.

The district court granted summary judgment for BSP on the ground of delay in the institution of the forfeiture proceeding which was commenced nearly 14 months after the currency was seized. On appeal, we initially affirmed this judgment, reasoning that the 14-month delay constituted a violation of constitutional due process. United States v. Forty-Seven Thousand Nine Hundred Eighty Dollars ($47,980.00) in Canadian Currency, 689 F.2d 858, 860-61 (9th Cir.1982) (Canadian Currency I ). We granted rehearing after the Supreme Court decided United States v. Eight Thousand Eight Hundred and Fifty Dollars in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) ($8,850 ), to reconsider our holding in light of that decision. United States v. Forty-Seven Thousand Nine Hundred Eighty Dollars ($47,980.00) in Canadian Currency, 726 F.2d 532 (9th Cir.1984) (Canadian Currency II ). In $8,850 the Supreme Court applied the four-factor analysis of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (Barker ), to uphold an 18-month delay in the initiation of forfeiture proceedings. We withdrew our opinion Canadian Currency I and remanded to the district court to allow it to apply the Barker factors in this case. Canadian Currency II, 726 F.2d at 533-34.

The district court, applying Barker and $8,850, found no violation of due process with respect to delay in the initiation of forfeiture proceedings. It found further that the reporting statute was violated and that the currency was subject to forfeiture. BSP appeals, arguing that the district court misapplied the Barker factors. In addition, BSP argues that the district court erred by concluding that the forfeiture statute does not require notice of reporting requirements for forfeiture to lie.

II

We apply de novo review to determine whether a delay in the initiation of civil forfeiture proceedings is unconstitutional. United States v. One 1954 Rolls Royce Silver Dawn, 777 F.2d 1358, 1361 (9th Cir.1985).

Under Barker, four factors must be weighed to determine whether due process was denied. These are the length of delay, the reason for the delay, the defendant's assertion of its right to speedy determination, and prejudice. See $8,850, 461 U.S. at 564, 103 S.Ct. at 2012, applying Barker, 407 U.S. at 530, 92 S.Ct. at 2191. This test is flexible, "balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case," and none of the four factors represents "a necessary or sufficient condition for finding unreasonable delay." $8,850, 461 U.S. at 565, 103 S.Ct. at 2012.

A.

In $8,850, the total delay was 18 months. Here, the delay is 14 months, a period that may be significant. See United States v. $23,407.69 in U.S. Currency, 715 F.2d 162, 165 (5th Cir.1983) (13 months). However, here, as in $8,850, the delay was justified by important concerns related to the administration and enforcement of law.

B.

As pointed out in $8,850, the possibility of a criminal proceeding justifies delay in instituting a civil forfeiture suit. $8,850, 461 U.S. at 567, 103 S.Ct. at 2013. A criminal conviction may result in forfeiture, rendering civil proceedings unnecessary. Id. at 567-68, 103 S.Ct. at 2013-14. Moreover, a prior civil suit "might serve to estop later criminal proceedings and may provide improper opportunities for the claimant to discover the details of a contemplated or pending criminal prosecution." Id. at 567, 103 S.Ct. at 2013. A thorough criminal investigation may be very time consuming. We have no indication that the criminal investigation in this case, which terminated six months after the currency was seized, was unreasonably lengthy. BSP, Stark, and Pascoe can hardly complain that it terminated in a decision not to seek criminal indictments. If the government were forced to initiate criminal proceedings without adequate investigation it might have made a premature decision to prosecute, at considerable cost to Stark, Pascoe, and BSP.

There is a similar interest in avoiding unnecessary judicial proceedings for civil forfeiture by allowing the Secretary time to decide whether or not to grant administrative relief on a petition for remission. Id. at 566-67, 103 S.Ct. at 2013-14. Remission or mitigation may obviate the necessity for judicial forfeiture proceedings, and avoids the burden of dual proceedings in different forums. Id. at 566, 103 S.Ct. at 2013. Moreover, claimants might lose the benefit of discretionary administrative relief if the government "were forced to initiate judicial proceedings without regard to administrative proceedings." Id. "Such an investigation inherently is time consuming," and here, as in $8,850, "there is no indication that it was not pursued with diligence." Id. at 567-68, 103 S.Ct. at 2013-14.

In $8,850, the administrative investigation consumed an initial seven months, and criminal indictments were obtained within two months thereafter. Id. In this case, the criminal investigation took an initial six months, and ended in a determination favorable to Stark and Pascoe. See Canadian Currency I, 689 F.2d at 860. The Customs Service took an additional four months to determine that remission should be denied as a matter of discretion. This is similar to the situation in $8,850 where, after a five-month criminal trial ended in a determination favorable to the claimant, three months passed before the Secretary determined that civil forfeiture should be pursued. Given these facts, we cannot conclude that the 14-month delay in this case was substantially unjustified.

C.

The third element demands consideration of the claimant's "assertion of the right to a judicial hearing." $8,850, 461 U.S. at 568, 103 S.Ct. at 2014. Here, as in $8,850, the claimant requested administrative relief, knowing that civil proceedings before a court would thereby be...