U.S. v. Price
| Decision Date | 25 September 1990 |
| Docket Number | No. 88-3004,88-3004 |
| Parties | UNITED STATES of America v. Nigel O. PRICE, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 87-00138-02).
Professor Herman Schwartz, with whom Robert M. Hausman, was on the brief, for appellant.
Nigel O. Price also entered an appearance for appellant.
Michael J. Ryan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, R. Craig Lawrence, and Robert E.L. Eaton, Jr., Asst. U.S. Attys., were on the brief, for appellee.
Before EDWARDS and BUCKLEY, Circuit Judges, and ROBINSON, Senior Circuit Judge.
Opinion for the Court filed Per Curiam.
By order of the court, the precise issue to be considered on this appeal is as follows:
[T]o what extent does the institution of civil forfeiture proceedings by the Drug Enforcement Administration pursuant to 21 U.S.C. Sec. 881 interfere with the continuing jurisdiction of the district court to consider a post-conviction motion for the return of property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure?
See United States v. Price, No. 88-3004 (Order, D.C.Cir., Oct. 12, 1988).
In March of 1987, Appellant Nigel O. Price was arrested and indicted for violations of the Controlled Substances Act. On April 30, 1987, Price filed a motion under Rule 41(e) of the FEDERAL RULES OF CRIMINAL PROCEDURE for the return of currency and jewelry that had been found at the time of his arrest. Subsequently, in May of 1987, during the pendency of the criminal proceeding, but before any action had been taken on the Rule 41(e) motion, Price received notice from officials at the Drug Enforcement Administration (DEA) indicating their intention to seek forfeiture of the cash and jewelry as proceeds of the appellant's illegal trafficking in narcotics. Thereafter, on May 21, 1987, Price pled guilty to a conspiracy to distribute cocaine; sentencing was set for July 14, 1987.
At the sentencing hearing, the District Court denied Price's Rule 41(e) motion. The trial judge found that, because the DEA had initiated civil forfeiture proceedings, the District Court was not the proper forum in which Price might seek the return of his property. Appellant subsequently renewed his Rule 41(e) motion, and the District Court declined to rule on it, citing the same reason.
Appellant's central argument is that the DEA's institution of a civil forfeiture proceeding did not affect the District Court's continuing jurisdiction over Price's Rule 41(e) motion, and that the District Court erred in declining to consider appellant's renewed Rule 41(e) motion. For the reasons that follow, we deny appellant's petition for review. We now hold that once the Government initiates an administrative forfeiture proceeding and the property is not the subject of an ongoing criminal proceeding, the District Court has no jurisdiction to resolve the issue of return of property. In this case, Price's remedy was to challenge forfeiture in the administrative proceeding. His failure to do so did not confer continuing jurisdiction on the District Court.
On March 19, 1987, appellant Nigel O. Price was arrested for narcotics trafficking in violation of the Controlled Substances Act. See 21 U.S.C. Secs. 841(a), 846. 1 In the course of the arrests, DEA agents found $1,062.00 in cash on Price, as well as several pieces of gold jewelry which were subsequently appraised at approximately $18,205.00. The Government confiscated and retained the cash and jewelry. On April 7, 1987, Price was indicted; on April 30, 1987, he filed his initial Motion for Return of Property pursuant to FED.R.CRIM.P. 41(e). 2
While Price's case was proceeding in the District Court, a DEA investigation concluded that the cash and jewelry confiscated at the time of Price's arrest were the proceeds of his involvement in the illegal trade of narcotics. In accordance with such findings, the DEA's Office of Chief Counsel, Asset Forfeiture Unit (AFU), decided to institute forfeiture proceedings. 3 On May 6, 1987, the AFU sent Price a Notice of Seizure and Intent to Forfeit by registered mail; 4 at this time, Price already had filed his initial Rule 41(e) motion for the return of his property, although no hearing had been held on the motion. The notice informed Price that the DEA had seized his jewelry pursuant to 21 U.S.C. Sec. 881, that administrative forfeiture proceedings were underway, and that he could petition either the DEA or the court if he sought return of the seized property. 5 Specifically Price was apprised that he could present a petition for remission or mitigation within 30 days of his receipt of the notice, or, if he wished to appeal to the court, he could file a petition for return of property "within twenty (20) days of the first date of publication of the notice of seizure in the Wednesday edition of USA Today." 6 If Price chose to seek redress in court, he would have to file a claim of ownership with the DEA, and submit a bond to the agency as well.
The DEA sent Price a second notice of seizure on May 12, 1987, covering the $1,062.00 in cash found on Price at the time of his arrest. The language of the May 12 notice paralleled that of the May 6 notice. Both notices were received by Price on May 18, 1987.
On May 19, 1987, the Government filed an opposition to Price's Rule 41(e) Motion for Return of Property, and on Wednesday, May 27, the DEA published its first of three notices of seizure and intent to forfeit in USA Today, as required by 21 C.F.R. Sec. 1316.75 (1988). Interested persons, such as owners and lienors, may proceed administratively to protect their interests, 7 while the person from whom an asset is seized may seek recourse either administratively or by removing the action to the courts. If no petitions are filed then the property is forfeited according to administrative procedures.
By the time the first notice of forfeiture was published in USA Today, Price had pled guilty to a violation of 18 U.S.C. Sec. 371 (1987), and was awaiting sentencing. At Price's sentencing hearing on July 14, 1987, the trial judge denied Price's Rule 41(e) motion, because "forfeiture proceedings [had been] initiated;" thus, in the view of the trial judge, the question of whether the property was to be returned was a matter for determination in subsequent forfeiture proceedings. 8
Price never availed himself of the administrative procedures to challenge the proposed forfeiture; thus, his property was forfeited to the DEA on November 23, 1987 (cash) and January 7, 1988 (jewelry). 9
On October 30, 1987, Price renewed his Rule 41(e) motion. The District Court denied this motion on December 14, and Price filed a Notice of Appeal to this court on December 28. Upon order of the court, the case was remanded for the District Court to set forth the reasons for its denial of Price's second Rule 41(e) motion. On remand, the District Court reiterated that the Rule 41(e) motion had been denied because the administrative forfeiture proceedings were in progress. United States v. Price, No. 87-138-02 (Report on Remand, D.D.C., Sept. 13, 1988). Thereafter, Price renewed his appeal with this court, claiming that the District Court erred in denying his second Rule 41(e) motion filed on October 30, 1987. The parties were then instructed by the court to address the following question:
[T]o what extent does the institution of civil forfeiture proceedings by the Drug Enforcement Administration pursuant to 21 U.S.C. Sec. 881 interfere with the continuing jurisdiction of the district court to consider a post-conviction motion for the return of property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure? See United States v. Wilson, 540 F.2d 1100, 1103 (D.C.Cir.1976).
United States v. Price, No. 88-3004 (Order, D.C.Cir., Oct. 12, 1988).
The issue at hand is whether the Government, by instituting administrative forfeiture proceedings before the District Court resolves a putative owner's Rule 41(e) motion, can preempt the District Court's jurisdiction to hear a defendant's post-conviction Rule 41(e) claim. We hold that the Government can so preempt the District Court's jurisdiction.
Price contends that the District Court presiding over the criminal case against him was vested with jurisdiction to dispose of motions for return of property filed pursuant to FED.R.CRIM.P. 41(e), and that such jurisdiction was retained even after his conviction and sentencing despite the initiation of civil administrative forfeiture proceedings involving the same property. Relying on this circuit's decision in United States v. Wilson, 540 F.2d 1100 (D.C.Cir.1976), and the Tenth Circuit's decision in Floyd v. United States, 860 F.2d 999 (10th Cir.1988), Price argues that a District Court has equitable jurisdiction to dispose of a defendant's Motion for Return of Property, and that the mere initiation of an administrative forfeiture proceeding should not bar the District Court from exercising such jurisdiction. Citing Floyd, the appellant urges that, in any event, "[t]he inquiry [by the trial court] should always be equitable and not mechanical, and thus resolution [as to whether to assert jurisdiction] should not turn on a pure race between the parties to file or publish notice." Floyd, 860 F.2d at 1004 (citations omitted). Alternatively, Price argues that even if a "race" is used to determine jurisdiction, the trial court should have resolved his Rule 41(e) motion because it was filed before the DEA initiated any forfeiture proceedings.
The Government argues that the Federal Rules of Criminal Procedure specifically state that the rules "are not available [in] ... civil forfeiture of property for violation of a statute of the United States." FED.R.CRIM.P. 54(b)...
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