United States v. Shari Thompson ( 1996 )

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No. 95-3865
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United States of America, *
*
Appellee, *
*
v. *
*
Certificate of Deposit, * Appeal from the United States
No. 8101730026, First National * District Court for the
Bank of Omaha, * District of Nebraska.
*
Defendant, * [PUBLISHED]
*
Shari Thompson, *
*
Appellant. *
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Submitted: May 21, 1996
Filed: May 28, 1996
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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Following the arrest of Billy Thompson in April 1990 for possession
with intent to distribute cocaine, the government seized a bank certificate
of deposit (CD) valued at $7,000 and filed a forfeiture complaint against
the property. Shari Thompson, Billy's wife, answered the forfeiture
complaint and asserted a claim to the CD. When partial summary judgment
was granted in favor of the bank in September 1991, the district court's
docket sheet entry erroneously reflected the case as terminated. After no
activity for four years, the docketing mistake was detected in September
1995 -- the record does not tell us how -- and the case reopened,
presumably at the government's behest. The district court ordered
the case set for trial a few weeks later, and when Thompson did not appear,
denied her motion for a continuance and entered a default judgment against
her. Thompson appeals. We reverse.
The government's delay of more than four years evidences a lack of
reasonable diligence in prosecuting its forfeiture action. The government
does not explain why it took four years to discover the district court's
docketing error. The procedural prejudice to Thompson is apparent from the
circumstances surrounding the hasty reopening and entry of default
judgment. Moreover, the government has alleged that the CD was redeemed
in March 1995. That event either made the CD forfeiture proceeding moot,
or created a need for much more complex litigation before the government
could recover the money previously represented by the CD. Since the
government originally seized the CD, it is to blame for any mishandling,
so it is appropriate to treat the CD's redemption as mooting the forfeiture
proceeding. For all these reasons, we conclude that dismissal because of
the government's failure to prosecute is the proper course of action. See
Garland v. Peebles, 1 F.3d 683, 686 (8th Cir. 1993). See also Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (courts have inherent
authority to dismiss sua sponte for failure to prosecute).
Accordingly, the judgment of the district court is reversed and the
case is remanded with instructions to dismiss the government's forfeiture
complaint for failure to prosecute.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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