U.S. v. Premises and Real Property at 4492 South Livonia Road, Livonia, N.Y., 71

• Citation: 897 F.2d 659
• Decision Date: 02 March 1990
• Docket Number: D,No. 71,71
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. The PREMISES AND REAL PROPERTY AT 4492 SOUTH LIVONIA ROAD, LIVONIA, NEW YORK, That is, All That Tract or Parcel of Land Situate in the Town of Livonia, Livingston County, State of New York, Lined and Being in Land Lot # 39 and Recorded in Liber 570 at of the Livingston County Land Records, Defendant. Appeal of Peter SERAFINE, Owner of 4492 South Livonia Road, Livonia, New York, Claimant-Appellant. ocket 88-6040.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 659

897 F.2d 659

UNITED STATES of America, Plaintiff-Appellee, v. The PREMISES AND REAL PROPERTY AT 4492 SOUTH LIVONIA ROAD,

LIVONIA, NEW YORK, That is, All That Tract or Parcel of Land

Situate in the Town of Livonia, Livingston County, State of

New York, Lined and Being in Land Lot # 39 and Recorded in

Liber 570 at Page 137 of the Livingston County Land Records,

Defendant.

Appeal of Peter SERAFINE, Owner of 4492 South Livonia Road,

Livonia, New York, Claimant-Appellant.

No. 71, Docket 88-6040.

United States Court of Appeals, Second Circuit.

Argued Jan. 12, 1990.

Decided March 2, 1990.

Richard A. Rothman, New York City (Weil, Gotshal & Manges, Perry A. Carbone, Nancy S. Scherer, of counsel), for claimant-appellant.

Sara Criscitelli, Attorney, Dept. of Justice, Appellate Section, Criminal Div., Washington, D.C. (Dennis C. Vacco, Rochester, N.Y., U.S. Atty., for the Western District of N.Y., Christopher V. Taffe, Louis J. Gicale, Jr., Asst. U.S. Attys., of counsel), for plaintiff-appellee.

Before FEINBERG and NEWMAN, Circuit Judges, and DUMBAULD, District Judge. ^*

OPINION ON PETITION FOR REHEARING

PER CURIAM:

In deciding this appeal, we held that the seizure of Serafine's property, under the facts and circumstances of this case, was unconstitutional because the seizure was not preceded by notice and hearing. 889 F.2d 1258, 1262-66. We also held that the forfeiture of the property was not tainted by the unlawfulness of the seizure, and we affirmed the judgment of forfeiture. Id. at 1266-71. The government petitioned for rehearing, urging us (1) to reconsider our ruling that the seizure was unconstitutional for lack of notice and a prior adversarial hearing, and (2) in the event that we adhered to that ruling, to clarify the nature of the adversarial hearing. We invited supplemental papers and heard additional oral argument.

On the first point, we adhere to our prior ruling. On the second point, we decline to provide clarification, for the following reasons. In ruling that the seizure provision was unconstitutional as applied, we had no occasion to consider whether the constitutional defect could be remedied by construing the seizure provision to require pre-seizure notice and hearing or whether only legislative modification could cure the defect. In its supplemental papers in support of rehearing, the government has now taken the position that, if pre-seizure notice and hearing are required in cases like Serafine's (which it continues to dispute), such procedures cannot be ordered by a court but may be authorized only by an amendment of the statute or the rules. Letter of Sara Criscitelli, Esq., Attorney, Appellate Section, Criminal Division, Department of Justice, to the Clerk of this Court, January 19, 1990, at 8. Appellant Serafine, though supporting our ruling as to the...