U.S. v. Two Hundred Ninety-Five Ivory Carvings, NINETY-FIVE

• Citation: 689 F.2d 850
• Decision Date: 06 October 1982
• Docket Number: NINETY-FIVE,No. 81-3260,81-3260
• Parties: UNITED STATES of America, Appellant, v. TWO HUNDREDIVORY CARVINGS and Marvin Segal, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 850

689 F.2d 850

UNITED STATES of America, Appellant, v. TWO HUNDRED NINETY-FIVE IVORY CARVINGS and Marvin Segal, Appellees.

No. 81-3260.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 11, 1982.

Decided Oct. 6, 1982.

David B. Smith, Washington, D. C., for appellant.

Michael D. Hunsinger, Seattle, Wash., argued for appellees; Ronald G. Neubauer, Seattle, Wash., on brief.

Appeal from the United States District Court for the Western District of Washington.

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

CANBY, Circuit Judge:

On September 11, 1977, Marvin Segal returned from the Orient with 295 ivory carvings, entering the United States at the Seattle-Tacoma International Airport. He listed only 12 of the 295 carvings in his Customs declaration and he undervalued the 12 he declared. Upon discovering the carvings and the related sales invoices, the United States Customs Service seized all of the carvings. Eighteen months later, on March 26, 1979, Customs referred the case to the United States Attorney for the institution of judicial forfeiture proceedings. On April 20, 1979, the United States filed a complaint in the United States Western District Court for the District of Washington, seeking forfeiture of the carvings, pursuant to 19 U.S.C. §§ 1497 and 1592, and a civil penalty equal to the value of the carvings not declared pursuant to 19 U.S.C. 1497.

The government filed a motion for summary judgment. Segal filed a cross-motion for summary judgment and opposition to the government's motion, asserting that the government's delay in instituting the forfeiture action violated due process as well as the statutory duty, pursuant to 19 U.S.C. § 1603, to refer cases involving customs seizures to the United States Attorney promptly. The district court granted Segal's motion for summary judgment and denied the government's motion. The government appeals. We hold that the government's delay in referring the case to the United States Attorney for prompt institution of judicial forfeiture proceedings violated Segal's right to a prompt post-seizure adjudication of the forfeiture. Segal was, therefore, entitled to a dismissal of the forfeiture action and the return of the illegally detained property. The government's tardiness in bringing the forfeiture action does not, however, require the dismissal of the second cause of action for a civil penalty pursuant to § 1497. We therefore remand for further proceedings on that claim.

The government accounts for the nineteen months between seizure and institution of this judicial action as follows. Customs seized the 295 ivory carvings from Segal on September 11, 1977. More than a month after the seizure, Customs sent Segal a notice of seizure, advising him of his right to petition for administrative relief within 60 days. At the end of the 60 days, on December 24, 1977, Segal petitioned for administrative relief. By August 3, 1978, eight months after relief was requested, the investigation was completed. Eight days later, the Customs Office of Fines, Penalties, and Forfeitures referred the case to Customs Regional Counsel, requesting that it be referred to the United States Attorney for judicial forfeiture. A month later, on September 15, 1978, Customs advised Segal that relief was denied and told him that the case would be referred to the United States Attorney. The referral, however, was not made. Instead, Customs considered whether to attempt a "summary forfeiture" before referring the matter to the United States Attorney. ¹ This decision took five months. On February 26, 1979, Customs began the summary forfeiture process and so notified Segal. The summary process required Segal to post bond in order to contest the forfeiture. He did so on March 19, 1979, and on March 26, 1979, Customs finally referred the case to the United States Attorney. A month later, on April 20, 1979, the complaint was filed.

A default judgment was entered on October 10, 1979, but was vacated on June 18, 1980. ² The government moved for summary judgment on December 1, 1980. Segal filed his cross-motion for summary judgment on December 24, 1980, which was granted on February 7, 1981.

I.

The basic issue on appeal is the effect of the government's delay in instituting this judicial forfeiture action. Since its summary seizure and during the entire period of the delay, Segal has been deprived of his property without an impartial hearing concerning the seizure. Although the government must usually give notice and a hearing prior to taking property, seizure of property for forfeiture to the government is viewed as an "extraordinary situation" in which the notice and hearing may be postponed because (1) seizure is "directly necessary to secure an important governmental or general public interest" (2) "there is a 'special need for very prompt action,' " and (3) "seizure is initiated by 'a government official responsible for determining, under the standards of a narrowly drawn statute, that it (is) necessary and justified in the particular instance.' " Ivers v. United States, 581 F.2d 1362, 1368 (9th Cir. 1978); quoting Fuentes v. Shevin, 407 U.S. 67, 91, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556 (1972), and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 678-80, 94 S.Ct. 2080, 2089-90, 40 L.Ed.2d 452 (1974). Even though the government may be relieved of the requirement of a pre-seizure hearing, due process requires that judicial proceedings be commenced with "some promptitude." Ivers, id. We recently stated the requirement for promptness as follows:

Forfeiture actions must be brought promptly. See Ivers v. United States, 581 F.2d 1362, 1368 (9th Cir. 1978); United States v. One 1970 Ford Pickup Truck, 564 F.2d 864 (9th Cir. 1977). Because customs seizures infringe upon the right of private ownership of property, any delay in instituting forfeiture proceedings must be justified. This requirement assures that the citizen will be able to protest an erroneous seizure at a meaningful time. By thus limiting the potentiality for wrongful deprivation we protect property rights to the fullest extent possible, given the competing need to enforce customs laws.

United States v. Eight Thousand Eight Hundred Fifty Dollars (Eight Thousand), 645 F.2d 836, 838 (9th Cir. 1981) cert. granted, 455 U.S. 1015, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982).

The statutes governing post-seizure procedures reflect the special due process concerns involved in a summary seizure of property. Section 1602 of U.S.C. Title 19 requires the seizing officer to report the seizure to the appropriate customs officer immediately. Section 1603 requires the customs officer to report the seizure to the appropriate United States Attorney for prosecution of the forfeiture. Section 1604 requires the United States Attorney to inquire into the facts "immediately" and "if it appears probable that ... forfeiture has been incurred," he is "forthwith" to institute proceedings, "without delay, ... unless upon inquiry and examination, (he) decides that such proceedings cannot probably be sustained or that the ends of public justice do not require that they should be instituted or prosecuted...." While Section 1603, prior to its amendment in 1978, did not contain any term such as "immediate" or "forthwith," or "without delay," a requirement of prompt referral has been inferred in order to avoid a finding of facial unconstitutionality. United States v. One 1971 BMW 4-Door Sedan, 652 F.2d 817, 819 n. 1 (9th Cir. 1981); United States v. One 1970 Ford Pickup, 564 F.2d 864, 866 (9th Cir. 1977); Sarkisian v. United States, 472 F.2d 468, 471 (10th Cir.), cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); cf. Ivers v. United States, 581 F.2d 1362, 1368 (9th Cir. 1978) (19 U.S.C. § 1102 construed to require prompt institution of forfeiture proceedings). The particular stage at which delay in the institution of proceedings occurs is immaterial, since the effect of the delay on the property owner's right to a prompt hearing is the same.

II.

The government must therefore justify its delay. It asserts that the sequence of events recited above justified the 18-month lapse of time between its summary seizure of the carvings and the post-seizure judicial hearing. It argues that Segal waived his right to a prompt post-seizure hearing by petitioning for administrative relief under 19 U.S.C. § 1618 and by never thereafter requesting the institution of judicial forfeiture proceedings. In Ivers, however, this court ruled that the "mere filing of a petition for remission ... does not justify a delay in seeking a judicial determination of forfeiture." Id., 581 F.2d at 1372; see Eight Thousand, 645 F.2d at 838. The government nevertheless prevailed in Ivers because, in the early stages of his efforts to regain possession of his property administratively, the claimant had specifically requested the government to postpone instituting judicial proceedings. Under those circumstances the government was entitled to assume that the claimant concurred in the delay, absent some subsequent indication that his earlier request had been withdrawn.

Unlike the claimant in Ivers, Segal has never expressly requested postponement of judicial forfeiture proceedings. The Government contends, however, that Segal implicitly agreed to an 18-month delay by seeking administrative relief and failing to request the institution of judicial forfeiture proceedings. We cannot agree. By petitioning for administrative relief, Segal clearly and unequivocally objected to the government's detention of his property. His petition cannot be viewed as signifying an agreement to or request for indefinite postponement of judicial proceedings. We recognize that administrative relief proceedings sometimes result in the return of seized property in a very short period of time. In such cases, to require the concurrent institution of judicial...