United States v. Eight Thousand Eight Hundred Fifty Dollars ($8,850.00) in United States Currency, Mary Josephine Vasquez, Claimant-Appellant , 645 F.2d 836 ( 1981 )

CHOY, Circuit Judge:

I. Introduction

Claimant Mary Josephine Vasquez (Vasquez) appeals from a judgment forfeiting $8,850 in United States currency which she failed to declare when she entered the United States. We find that the Government unjustifiably delayed institution of forfeiture proceedings in violation of Vasquez’s due process right. Accordingly, we reverse the judgment of forfeiture.

II. Facts

On September 10, 1975, Vasquez flew from Canada to Los Angeles, California. Her customs declaration stated that she was not carrying more than $5,000 in currency and she repeated this statement to a customs inspector. During a pat-down, an inspector found and seized $8,850 that Vasquez had concealed.

On September 25, 1975, Vasquez filed a petition for remission or mitigation of forfeiture. In October 1975, the petition was referred to the Office of Investigation of Customs and its investigation was assigned to Special Agent Janet Pompeo (Pompeo). Pompeo believed a criminal indictment might be warranted and in early November

1975, she opened a criminal file.

On November 13, 1975, Pompeo spoke to Vasquez’s attorney, Victor Sherman (Sherman), and attempted to arrange an interview with Vasquez in San Pedro. Sherman requested that he be present at the interview. He said that he was too busy to attend an interview in San Pedro but that he would try to have Vasquez available if Pompeo would come to Los Angeles. An interview was not scheduled at that time.

Pompeo believed that Vasquez might be smuggling narcotics because in 1971 she had been arrested in a narcotics investigation. From November 1975 until April 1976, Pompeo talked with law enforcement agencies to find out whether there was a basis for a smuggling charge against Vasquez. In April 1976, Pompeo concluded that there was no evidence to support such a charge.

In January 1976, Sherman inquired about the status of the $8,850; he said that he understood a determination would be made by January 22, 1976. Shortly thereafter, Sherman was told that the investigation had not been completed and on April 16, 1976, Sherman requested that the petition either be granted or denied as soon as possible.

On May 17, 1976, Pompeo recommended prosecution and on June 15, 1976, Pompeo testified before a grand jury. Vasquez was indicted on the same day. The indictment charged Vasquez with knowingly and willfully making false statements to a United States customs officer in violation of 18 U.S.C. § 1001 and with knowingly transporting $8,850 into the United States without filing a report as required by 31 U.S.C. § 1101(b).

On December 24, 1976, Vasquez was found guilty of knowingly and willfully making false statements to a United States Customs officer¹ but the jury acquitted her on the charge of failing to declare the currency.

On December 28, 1976, Sherman notified Pompeo of the jury’s verdicts and he requested that he be notified if there was to be any further delay in passing on the petition. On March 10, 1977, Sherman was notified that the claim of forfeiture had been referred to the United States Attorney’s Office and within two weeks the Government filed its forfeiture action. 31 U.S.C. § 1102 and 31 C.F.R. §§ 103.23, 103.-25.

III. Discussion

Vasquez contends that she was denied due process of law because of the Government’s 18-month delay before instituting the forfeiture proceeding. We agree.

A. The Requirement of Prompt Filing

Forfeiture actions must be brought promptly. See Ivers v. United States, 581 F.2d 1362, 1368 (9th Cir. 1978); United States v. One 1970 Ford Pickup Truck, 564 F.2d 864 (9th Cir. 1977). Because customs seizures infringe upon the right of private ownership of property, any delay in instituting forfeiture proceedings must be justified. This requirement assures that the citizen will be able to protest an erroneous seizure at a meaningful time. By thus limiting the potentiality for wrongful deprivation we protect property rights to the fullest extent possible, given the competing need to enforce customs laws.

In this case, the Government’s 18-month delay in filing its forfeiture action was unjustified. The administrative or criminal investigations cannot justify the Government’s delay when the necessary elements for a forfeiture were established at the time of the seizure and when, except for one occasion shortly after the seizure, Sherman repeatedly sought to have the claim of his client speedily resolved. The Government does not offer any other justification for delay.

Under the facts of this case we find that the Government failed to institute forfeiture proceedings in a timely manner and that such failure was not justified. Compare United States v. DiRodio, 565 F.2d 573 (9th Cir. 1977) (no due process violation where government acted diligently and where claimant’s legal maneuvers produced the delay).

B. The Elements of a Due Process Claim

It has been suggested that Vasquez must prove, in addition to the fact of unjustified delay, that she was prejudiced by the 18-month detention of her property. It is further suggested that because currency, as opposed to a wasting asset, was detained in this case, Vasquez was not prejudiced. We find that the non-wasting character of the asset detained is not determinative of whether a due process violation has occurred. The claimant need only show unjustified delay in order to bar a judgment of forfeiture.

Earlier cases can be read to suggest that proof of prejudice is a necessary element of a due process claim. In Ivers v. United States, supra, this court upheld a customs forfeiture, despite tardy institution of forfeiture proceedings, because the claimant had concurred in the delay. The court also noted that the claimant offered no showing of prejudice, and that the property detained, cash, was not a wasting asset:

A more compelling case of prejudicial delay than what has been shown here would have to be demonstrated before we would be willing to deprive the Government of a forfeiture to which it otherwise has a legitimate entitlement. Id. at 1373. (Emphasis added.)

In Ivers, delay was justified because of the claimant’s own contribution to such delay. Similarly, where the claimant seeks alternative administrative relief, the Tenth Circuit has found that the Government is justified in postponing forfeiture proceedings. See White v. Acree, 594 F.2d 1385 (10th Cir. 1979). Neither Ivers nor White holds that prejudice is an element of a due process claim. Any lack of prejudice in those cases arising from the form of the assets involved was not essential to the holdings therein. Therefore the language discussing prejudice is mere dicta.

The absence of prejudice in Ivers softened the harsh result of forfeiture. This may explain the inclusion of the prejudice discussion in that case. A careful analysis of the constitutional basis for the promptitude requirement, however, shows that the degree of prejudice arising from the nature of the asset is simply not relevant in determining whether due process rights attach.

Our Constitution provides that property shall not be taken without due process of law. The right to some kind of prompt judicial determination upon deprivation of property is well established. See, e. g., North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975).

The constitutional basis for the law on due process claims in customs seizure cases may be stated in brief as follows:

1. Due process requires that procedural safeguards accompany government seizure of private property. Fuentes v. Shevin, 407 U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 556] (1972).

2. In most cases, due process requires pre-seizure safeguards. Id. at 90-92 [92 S.Ct. at 1999-2000].

3. The exigencies involved in customs seizure cases allow a limited exception to the requirement of a pre-sei-zure hearing. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 [94 S.Ct. 2080, 40 L.Ed.2d 452] (1974).

4. The requirements of due process are met in customs seizure cases where the requisite proceedings are initiated promptly. Ivers v. United States, supra, at 1368.

5. Any delay in instituting forfeiture proceedings must be justified. Id.

To require a further showing of prejudice is inconsistent with this constitutional basis. The guiding principle is that property may not be taken without due process of law. The Supreme Court has made clear that the due process clause makes no distinction between types of property. In discussing the problem of pre-judgment garnishment, the Court has stated:

It may be that consumers deprived of household appliances will more likely suffer irreparably than corporations deprived of bank accounts, but the probability of irreparable injury in the latter case is sufficiently great so that some procedures are necessary to guard against the risk of initial error. We are no more inclined now than we have been in the past to distinguish among different kinds of property in applying the Due Process Clause. (Emphasis added.)

North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 608, 95 S.Ct. 719, 723 (1975).

The determinative factor in the instant case is that the Government offered no explanation for the delay. This is what distinguishes Vasquez’s claim from that of the claimant in Ivers. The distinction between wasting and non-wasting assets may make for sympathy in a given case, but it does not change the law. Where property is seized, delay in instituting legal proceedings must be justified.

IV. Conclusion

A prompt hearing is constitutionally guaranteed to the owner of currency, as it is to the owner of a wasting asset. Once it is shown that the Government has detained property, cash or other, the requirement of a prompt determination attaches. Any delay must be reasonably justified. We find no reasonable justification for delay in this case.

REVERSED.

1 . Vasquez’s conviction for knowingly and willfully making false statements to United States Customs officials in violation of 18 U.S.C. § 1001 was reversed and remanded because court files were left in the jury room during deliberation. United States v. Vasquez, 597 F.2d 192 (9th Cir. 1979).