US v. ONE 1973 FORD LTD, SER. NO. 3J66S132017, Civ. No. R-74-200 BRT.

• Decision Date: 18 March 1976
• Docket Number: Civ. No. R-74-200 BRT.
• Citation: 409 F. Supp. 741
• Parties: UNITED STATES of America, Plaintiff, v. ONE (1) 1973 FORD LTD, SERIAL NO. 3J66S132017, its tools and appurtenances, Defendant.
• Court: U.S. District Court — District of Nevada

409 F. Supp. 741

UNITED STATES of America, Plaintiff, v. ONE (1) 1973 FORD LTD, SERIAL NO. 3J66S132017, its tools and appurtenances, Defendant.

Civ. No. R-74-200 BRT.

United States District Court, D. Nevada.

March 18, 1976.

Lawrence J. Semenza, U. S. Atty., Reno, Nev., for plaintiff.

Stephen J. Peek, Reno, Nev., for defendant.

MEMORANDUM OPINION

BRUCE R. THOMPSON, District Judge.

The Ford vehicle was seized by Treasury Agents on October 7, 1973. Erg's, Inc. is the owner and claimant. The grounds for forfeiture are admitted. The only defense is unreasonable delay in institution of the forfeiture proceedings. This action was commenced on December 18, 1974, over fourteen months after the seizure. In the meantime, claimant had petitioned administratively for remission or mitigation of the forfeiture. There were numerous delays in the Treasury Department in processing the petition to its ultimate rejection and in reporting the seizure to the proper United States Attorney's Office.

One of the important circumstances to be noted in this case is that the claimant's sole remedy, his only source of relief, was the petition to the Secretary of the Treasury for remission or mitigation of the forfeiture. The only tenable issue in this legal action for forfeiture is whether the vehicle was in fact used in the unlawful transportation of contraband. United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964).

Unquestionably, due process requires reasonably prompt institution and prosecution of the forfeiture action. United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Sarkisian v. United States, 472 F.2d 468 (10th Cir. 1973); United States v. A Quantity of Gold Jewelry, 379 F.Supp. 283 (C.D.Cal.1974); United States v. One 1971 Opel G.T., 360 F.Supp. 638 (C.D.Cal.1973); Boston v. Stephens, 395 F.Supp. 1000 (S.D.Ohio 1975); Ivers v. United States (unreported). While a variety of reasons have been given for the results reached in the cited cases, one obvious conclusion is that whether or not a claimant's due process rights have been infringed depends upon the circumstances of the particular case. In Thirty-Seven Photographs, supra, there was a viable issue of fact regarding whether the photographs were forfeitable as obscene. In Boston, supra, there was a viable issue of fact with respect to whether false statements had been made by the importer to customs officials. In Sarkisian, supra, there was a viable issue of fact regarding whether the imported goods were in fact properly invoiced and classified as antiques, and the owner brought the first action for recovery of the seized articles. In One 1971 Opel G.T., supra, the owner had filed a claimant's bond pursuant to 19 U.S.C. § 1608. The statute, by its terms, required prompt transmittal to the United States Attorney when a bond was filed. Also, in A Quantity of Gold Jewelry, supra, the basis of the forfeiture was contested, the owner filed the first action and the owner made two efforts to post bond for release of the jewelry.

The instant case is entirely different and is much more similar to Ivers v. United States, supra. In Ivers, the claimant had pleaded guilty in a collateral criminal action based on the false declaration which resulted in the forfeiture. His administrative petitions to avoid or mitigate forfeiture had delayed referral of the case to the United States Attorney. In our case, there were also such administrative petitions. The case was referred to the United States Attorney with reasonable promptness after their conclusion. The claimant took no affirmative action to recover the property and posted no bond to trigger prompt action. Claimant recognized that an appeal to the discretion of the Secretary was his sole avenue of relief. Claimant had no basis to contest the forfeitability of the vehicle as an issue of fact. When the battle with the Secretary was lost, the war was lost.

After this action was filed on December 18, 1974, some fifteen months ago, no one pressed upon this Court the need for prompt disposition, which is itself part of the due process package. See Thirty-Seven Photographs, supra. The case was first called to the Court's attention when it was routinely set for pretrial conference on December 12, 1975. The pre-trial order admits forfeitability and asserts the due process violation as the only issue to be determined. The claimant obviously was not concerned about delay except to assert it and it alone as a defense to...