United States v. Graham , 57 F. App'x 549 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
EMMETT MADISON GRAHAM, JR.,
Claimant-Appellant,
and
GRAHAM LAND, COLUMBUS COUNTY,
as described in Book 278, Page 425
of the Columbus County Registry,
North Carolina, and being
physically located at Route 2, Box  No. 01-1954
208 Whiteville, Columbus County,
North Carolina, and being titled in
the names of Emmett Graham, Jr.
and wife, Evelyn M. Graham (a
concurrent life estate) and Emmett
Madison Graham, III and Rodney
Lee Graham (the remainder interest
in fee simple as tenants in
common); and any and all proceeds
from the sale of said property,
Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CA-99-178-7-F)
Submitted: December 30, 2002
Decided: January 24, 2003
2 UNITED STATES v. GRAHAM
Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Emmett Madison Graham, Jr., Appellant Pro Se. Paul Martin Newby,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Emmett Madison Graham, Jr., appeals from the district court’s
order granting the Government’s motion for summary judgment for
forfeiture of Graham’s interest in 28.60 and 6.05 acre parcels of prop-
erty based upon drug-related activity conducted on them. Graham first
argues that a prior vacatur of a criminal forfeiture of the 6.05 acre par-
cel bars the civil forfeiture action. We find no such bar. There was no
double jeopardy violation because civil forfeitures, like the one here
under 21 U.S.C. § 881(a)(7) (2000), do not constitute punishment for
double jeopardy purposes. United States v. Ursery, 518 U.S. 267,
270-71 (1996).
Next, Graham argued that the Government did not timely file the
civil forfeiture action. The district court did not address the timeliness
issue in its order. Under 19 U.S.C. § 1621 (2000), a forfeiture com-
plaint must be filed "within five years after the time when the alleged
UNITED STATES v. GRAHAM 3
offense was discovered . . . ."* Graham argues that the main reliance
on forfeiting the property is a home invasion effected in January
1993. The Government did not file the civil forfeiture action until
September 24, 1999—more than five years after the home invasion.
The Government’s forfeiture claim relied upon the sworn declarations
of Stephen Netherland, Criminal Specialist, North Carolina Bureau of
Investigation.
After a careful review of the record before us, we find that Stephen
Netherland’s declarations do not clearly state all the necessary dates
to determine the timeliness of the Government’s filing. Particularly
inconclusive is the date on which government agents first learned
from Kenneth Spence that his home had been invaded by a group, of
which Graham was part, and that Spence found his stolen marijuana
on Graham’s property. We note the civil forfeiture record also does
not contain any trial testimony from Netherland, nor does it contain
the relevant portions of Richard Crowell Arp, Jr.’s testimony regard-
ing his cooperation with Netherland.
For these reasons, we find it necessary to remand the case to the
district court for a determination of whether the Government timely
filed the civil forfeiture action. We deny Graham’s motion to proceed
in forma pauperis as moot. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
VACATED AND REMANDED
*Although § 1621 addresses forfeitures effected under the customs
laws, 21 U.S.C. § 881(d) (2000) specifically adopts the provisions
regarding forfeiture for customs violations. This includes the five-year
limitations period. See United States v. James Daniel Good, 510 U.S. 43,
63 (1993).