Clymore v. United States ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50860
_____________________
CRAIG CLYMORE, AKA CLIFF G. WILSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
_____________________
Appeal from the United States District Court
for the Western District of Texas
_____________________
ON PANEL REHEARING
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August 24, 2000
Before WIENER and STEWART, Circuit Judges, and ROSENTHAL, District
Judge*
WIENER, Circuit Judge:
We have granted panel rehearing in this case sua sponte and
now withdraw Parts IV and V of the original panel opinion, 217 F.3d
370 (5th Cir. 2000), and substitute in their place the following:
IV.
REMEDY
The government is required by statute to initiate forfeiture
*
District Judge of the Southern District of Texas, sitting by
designation.
proceedings within five years after it learns of the offense giving
rise to the forfeiture.32 In this case, it is undisputed that more
than five years have passed since the government learned that
Clymore’s truck was being used to smuggle marijuana. Therefore,
unless the statute of limitations running against the government
has been tolled for some reason, the government cannot now cause
Clymore’s property to be forfeited.
The Circuits are split on the proper remedy when there are
allegations that an administrative forfeiture was effected without
notice to the property owner, and the challenge to the forfeiture
proceeding is brought more than five years after the government
learns of the offense. Both the Ninth and Tenth Circuits have held
that the inadequately-noticed forfeiture is void —— that is, the
forfeiture should be vacated and the statute of limitations should
be allowed to run against the government, subject to any
affirmative defenses available to the government against the
running of the statute of limitations (e.g., laches, equitable
tolling).33 The Ninth Circuit reasoned that it is “particularly
weary of civil forfeiture statutes, for they impose ‘quasi-
criminal’ penalties without affording property owners all of the
32
19 U.S.C. § 1621.
33
See United States v. Marolf, 173 F.3d 1213, 1216-18 (9th Cir.
1999); Clymore v. United States, 164 F.3d 569, 572-74 (10th Cir.
1999).
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procedural protections afforded criminal defendants.”34 In a
similar vein, the Tenth circuit reasoned that “[d]ue process
protections ought to be diligently enforced, and by no means
relaxed, where a party seeks the disfavored remedy of forfeiture.”35
The Second and Sixth Circuits have held, less stringently,
that a deficient forfeiture is merely voidable —— in other words,
that the proper remedy is to restore the plaintiff’s right to
challenge the forfeiture in the district court. In United States
v. Dusenbery,36 the Sixth Circuit explained that treating the prior
forfeiture proceeding as voidable, not void, simply “restore[s] the
right which a timely Rule 41(e) notice would have conferred on the
[property owner],” i.e., “the right to judicially contest the
forfeiture and to put the Government to its proofs under a probable
cause standard.”37
We recently faced this precise issue in Kadonsky v. United
States.38 There we followed the position announced by the Ninth and
Tenth Circuits and held that “a forfeiture accomplished without
34
Marolf, 173 F.3d at 1217 (quoting United States v.
$191,910.00 in U.S. Currency, 16 F.3d 1051, 1068 (9th Cir. 1994)).
35
Clymore, 164 F.3d at 574.
36
201 F.3d 763 (6th Cir. 1999).
37
Id. at 768. See also Boreo v. Drug Enforcement Admin., 111
F.3d 301, 306 (2d Cir. 1997).
38
216 F.3d 499 (5th Cir. 2000).
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adequate notice is void and must be vacated.”39 We explained
further that “the remedy for constitutionally insufficient notice
in forfeiture proceedings is to void and vacate the original
proceeding,”40 and to allow “[the statute of] limitations [to] bar
consideration of the government’s forfeiture claim on the merits
unless the government provides a rationale to equitably toll or
otherwise not apply the statute.”41 We now follow the precedent
announced in Kadonsky and hold that the forfeiture in this case is
void.
The government argues that if we decide, as we have, that its
prior forfeiture proceeding is void, we should nevertheless allow
it to commence a new forfeiture proceeding pursuant to the doctrine
of laches. For the reasons set forth in Part III of this opinion,
however, the doctrine of laches is not available to the government
in this case. The government advances no alternative argument in
support of a tolling of the statute of limitations and,
consequently, we conclude that the government is time-barred from
commencing a new forfeiture proceeding at this juncture.
Clymore urges that in addition to the return of the his pickup
truck’s fair market value, he is entitled to interest. The
government did not address this issue on appeal. We remand the
39
Kadonsky, 216 F.3d at 505.
40
Id. at 506.
41
Id.
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case with instructions that the district court consider whether
Clymore is entitled to recover interest in addition to the return
of the value of his pickup truck, and to enter the judgment,
accordingly.
V.
CONCLUSION
For the foregoing reasons the judgment of the district court
is reversed, and the case remanded for consideration of Clymore’s
claim for interest.
REVERSED and REMANDED with instructions.
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