United States v. Gerald Barnes, II , 647 F. App'x 820 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30218
Plaintiff - Appellee, D.C. No. 3:12-cr-00226-BR-1
v.
MEMORANDUM*
GERALD LEROY BARNES, II,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted March 10, 2016
Portland, Oregon
Before: FISHER, BERZON, and WATFORD, Circuit Judges.
Gerald Leroy Barnes, II appeals the district court’s denial of his request for
return of several firearms seized by the U.S. Drug Enforcement Administration
(“DEA”) during an investigation. Those firearms were subsequently forfeited to
the government.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Barnes contends that the DEA sent him inadequate notice before forfeiting
his firearms, in that the notice failed adequately to inform him of the consequences
of petitioning for remission of the firearms, rather than filing a claim for their
return. He also contends that his letter in response to the forfeiture notice satisfied
the requirements for both a petition for remission and a claim, and that therefore
the United States should not have construed his letter as solely a petition for
remission.
The notice sent to Barnes is quite problematic. It does not identify the main
distinction between the two different routes for forfeiture. Remission assumes the
validity of the forfeiture, and the forfeiting agency returns the forfeited property
only if it decides, within its discretion, to excuse the grounds for forfeiture. See 28
C.F.R. § 9.1 et seq. By contrast, the filing of a claim is in the nature of a legal,
substantive challenge to the merits of the forfeiture. See 18 U.S.C. § 983(a)(2).
The only indication of this distinction in the notice is the word “remission,” not
commonly used or understood to mean a discretionary act of grace, and the
addition of the word “(pardon)” immediately following “remission” in the
sentence, which is awkwardly located and not explained. The government could
have much more clearly stated this most important distinction in the notice, as it
did in its letter forfeiting Barnes’ property, yet it did not.
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In addition, the notice states that a property owner seeking relief from
forfeiture may file a petition for remission “and/or” a claim but does not explain
what happens when the property owner does so. For instance, the notice does not
explain that the filing of a claim terminates the administrative forfeiture. See
Malladi Drugs & Pharms., Ltd. v. Tandy, 552 F.3d 885, 889 n.1 (D.C. Cir. 2009)
(“[A]s a practical matter, filing a claim to contest the forfeiture in court ends the
administrative forfeiture from which an owner would petition for remission.”).
The notice also fails to explain what happens to the petition for remission if a claim
is filed. Does the filing of a claim moot the petition for remission? Cf.
Conservation Force v. Salazar, 646 F.3d 1240, 1242–43 (9th Cir. 2011)
(describing remission and a claim as “alternative . . . remedies” (quoting Malladi,
552 F.3d at 890)). Or does the petition remain viable notwithstanding the filing of
a claim? See 28 C.F.R. § 9.3(a) (stating that petitions for remission “shall be
considered any time after notice until the property has been forfeited” (emphasis
added)).
Nonetheless, despite the notice’s inadequacies, the record makes clear that
Barnes, in fact, meant to request remission, not to file a claim. His letters to the
DEA expressly requested “remission” of the firearms. When the DEA responded
to his first letter, it explicitly characterized Barnes’ letter as a petition for
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remission, a characterization Barnes did not correct in his further communications.
In addition, Barnes had access to a lawyer during the forfeiture process, and some
evidence in the record indicates that he discussed the process with his then-
attorney. Moreover, nowhere has Barnes asserted that he was actually confused
about the fact that he was filing a petition for discretionary relief from forfeiture,
rather than a claim of a legal or factual right to not have his property forfeited. His
declaration, filed with the district court in support of his motion for return of
property, does not attest to such confusion. Finally, because Barnes was not taken
to have filed a claim, his petition went forward. For these reasons, any inadequacy
in the notice was harmless, and Barnes’ contention that the DEA should not have
construed his letters as solely requests for remission is not persuasive.
To the extent that Barnes also seeks equitable relief, that relief is not
available to him, for the reasons discussed above.
AFFIRMED.
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