U.S. v. Thirteen (13) Mach. Guns and One (1) Silencer

• Decision Date: 06 October 1982
• Docket Number: No. CA,CA
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. THIRTEEN (13) MACHINE GUNS AND ONE (1) SILENCER, and J. Curtis Earl, Real party in interest, Defendants-Appellants. 81-5923.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 861

689 F.2d 861

UNITED STATES of America, Plaintiff-Appellee, v. THIRTEEN (13) MACHINE GUNS AND ONE (1) SILENCER, and J.

Curtis Earl, Real party in interest, Defendants-Appellants.

No. CA 81-5923.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1982.

Decided Oct. 6, 1982.

Murray Miller, Phoenix, Ariz., for defendants-appellants.

David B. Smith, Washington, D. C., for plaintiff-appellee.

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

Before FARRIS and CANBY, Circuit Judges, and CURTIS ^*, District Judge.

CANBY, Circuit Judge:

On March 19, 1979, the government filed this in rem action, seeking the forfeiture of thirteen machine guns and one silencer it had seized in June 1977. The firearms allegedly had been involved in multiple violations of federal gun control and revenue laws. 26 U.S.C. § 5861(a), (b), (e), 18 U.S.C. §§ 922(a)(1), (3), (6), & 924(a). Appellant Earl, the owner of the firearms, filed a claim for them. On cross-motions for summary judgment the district court found no genuine issue of material fact and held that the firearms had been involved in the statutory violations, that any delay by the government in instituting civil forfeiture against the firearms was "not constitutionally impermissible," and that the government was entitled to forfeiture proceedings pursuant to 26 U.S.C. § 5872(a) and 18 U.S.C. § 924(a). Earl appeals asserting, inter alia, that the government's 21-month delay in instituting the in rem forfeiture action violated his due process right to a prompt post-seizure hearing. We hold that this delay was unjustified and unreasonable; accordingly, we reverse.

Earl is a licensed Class III firearms dealer, authorized to buy and sell automatic weapons subject to the approval of the Bureau of Alcohol, Tobacco and Firearms (ATF). In early June 1977, following investigation into Earl's purchase of machine guns from Donald Lane, the Chief of the Kearny, Arizona police department, ATF agents acting under search warrants seized a number of firearms from Earl's business, including the subjects of this forfeiture action. On August 10, 1977, the ATF referred the matter to the United States Attorney's office for institution of a forfeiture action against the guns. On September 7, 1977, however, an assistant Attorney General informed ATF that forfeiture proceedings would be delayed pending criminal proceedings against Earl and Lane, and that he expected an indictment in the near future. Sixteen months later, in December 1978, the government presented evidence to a grand jury. The grand jury returned no bill against appellant Earl, but indicted Lane on two counts of illegal possession of firearms in violation of 26 U.S.C. § 5861(d). In early February 1979 Lane was acquitted on both charges. Following Lane's acquittal, on March 19, 1978, the Government instituted this civil forfeiture action against the firearms it had seized 21 months before.

It is settled law that if a civil forfeiture is to succeed, it must be instituted with reasonable promptness after seizure of the property. United States v. 295 Carvings, 689 F.2d 850 (9th Cir.1982); United States v. Eight Thousand Eight Hundred Fifty Dollars ($8,850.00) in United States Currency, 645 F.2d 836, 838-39 (9th Cir.1981), cert. granted, 455 U.S. 1015, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982); Ivers v. United States, 581 F.2d 1362, 1368 (9th Cir.1978); United States v. One 1970 Ford Pickup Truck, 564 F.2d 864, 866 (9th Cir.1977). Delay in the institution of forfeiture proceedings must be justified. Eight Thousand, 645 F.2d at 838. In the absence of such justification, an extended delay violates due process. Id.

The government attempts to justify this delay by attributing it to Earl. In Ivers we recognized that delay requested by or concurred in by the claimant could not constitute the basis for a due process violation. " '(N)o seizure or forfeiture will be invalidated for delay ... where the claimant is responsible for extending either administrative action or judicial determination beyond the allowable time limits.' " Ivers, 581 F.2d at 1372, quoting United States v. Thirty-Seven Photographs, 402 U.S. 363, 374, 91 S.Ct. 1400, 1407, 28 L.Ed.2d 822 (1971); see United States v. 2,200 Paper Back Books, 565 F.2d 566, 572-73 (9th Cir. 1977). In establishing whether the claimant has concurred in the delay of the post-seizure hearing, the government must show affirmative proof that the claimant requested the delay or was responsible for it. Mere silence on the part of the claimant is not enough. Absent an express request or conduct clearly demonstrating that the claimant agreed to delay of the forfeiture proceedings, his due process claim to a prompt hearing remains valid. In Ivers the claimant had expressly requested that no judicial forfeiture proceedings be commenced during the time he was preparing an administrative petition for relief. Ivers, 581 F.2d at 1372. In the present case, the government has not alleged that Earl has ever requested delay in the institution of the forfeiture proceedings. We find no other indication that he concurred in it.

The government contends that its delay in instituting the forfeiture action was justified by the pendency of a collateral criminal investigation arising out of the same events that underlie this civil forfeiture action. Earl concedes that the government may postpone the institution of a forfeiture action for a reasonable time necessary to complete investigation, but urges that the delay in this case was unjustified because the investigation was completed long before the forfeiture complaint was filed. It is undisputed that the criminal investigation had been completed before December 1977. No further investigation was conducted during 1978. The government's unsuccessful attempt to indict Earl was not made until December 1978, 18 months after Earl's property had been seized, and at least 12 months after the investigation had been completed. Under these circumstances, we cannot attribute the unreasonable delay in institution of forfeiture proceedings to the criminal investigation.

(5-7) We are also unwilling to accept the government's argument that the pendency of a collateral criminal case necessarily requires delay in the initial institution of the forfeiture proceeding. Criminal proceedings do not suspend a property owner's right to a prompt post-seizure hearing. Cf. United States v. Spilotro, 680 F.2d 612, 617 (9th Cir. 1982) (due process...