United States v. Gary H. Marolf, in Re Application for Return of Seized Property 1981 Mango Motor Sailboat Named "Asmara," ( 2002 )

FERNANDEZ, Circuit Judge,

Dissenting:

I dissent because, it seems to me that taking a proper view of the case as a whole, the government’s position was substantially justified. See Comm’r v. Jean, 496 U.S. 154, 161-62, 110 S.Ct. 2316, 2320, 110 L.Ed.2d 134 (1990); United States v. Rubin, 97 F.3d 878, 375 (9th Cir.1996). That clearly appears if we start from the beginning.

It can hardly be contested that the seizure of the Asmara was justified. Once that was done, the government had five years to commence a forfeiture action. See 19 U.S.C. § 1621. It did not do so. For his part, Marolf did nothing until he filed a motion for return of the Asmara after the five years had passed. See Fed. R.Crim.P. 41(e). The government then attempted to defend that motion by asserting the right to forfeiture, which it could do if the statute of limitations did not stop it from doing so. It did have a decent (substantially justified) argument that it was not barred from making that assertion. At least some jurists would say so. See Kadonsky v. United States, 216 F.3d 499, 503-06 (5th Cir.2000), cert. denied, 531 U.S. 1176, 121 S.Ct. 1151, 148 L.Ed.2d 1013 (2001); United States v. Dusenbery, 201 F.3d 763, 767-68 (6th Cir.), cert. denied, 531 U.S. 925, 121 S.Ct. 301, 148 L.Ed.2d 242 (2000); Boero v. Drug Enforcement Admin., 111 F.3d 301, 306-07 (2d Cir.1997). So what can possibly justify an award of fees against it?

We know that the government was wrong about the effect of missing the statute of limitations, or at least it was wrong in this circuit. See United States v. Marolf, 173 F.3d 1213, 1220 (9th Cir.1999) (Marolf I). But turning out to be wrong is not enough to justify an award of fees. See Hill v. INS (In re Hill), 775 F.2d 1037, 1042 (9th Cir.1985). What else? Well, in the interim the government had purported to forfeit the vessel and had not given notice to Marolf, although it should have. See Marolf I, 173 F.3d at 1217. I fail to see the significance of that bevue. It simply meant that as to Marolf the forfeiture was void, a nullity. See id. at 1220; see also Kadonsky, 216 F.3d at 503. Yes, and ... ? And Marolf s rights were not affected in any way whatsoever; he was no worse off than he would have been had the government done nothing at all after it seized the Asmara. Had Marolf wanted to retrieve this drug-tainted vessel right after it was properly seized, he would have had to make a motion, or file a claim. And he would have lost that litigation. As it is, all he had to do was file a motion, and he wins the litigation because of the statute of limitations. His circular argument that he should get his fees because the government did not commence proper proceedings soon enough is just a claim that the statute of limitations ran; that claim is the very one the government contested with substantial justification.

It is quite enough that pursuant to the law as explicated by this circuit, a drug smuggler gets $253,763.60 of his drug-related assets free and clear. It is more than enough to award him attorney’s fees also, despite the fact that the government perpetrated no actual wrong upon him when it seized the Asmara and then failed to commence proper proceedings within five years.

Thus, I respectfully dissent.