United States v. Jerry Lindsay Artis

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 27, 2006
No. 05-15297
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00529-CR-UWC-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY LINDSAY ARTIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 27, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Jerry Lindsay Artis, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion for the return of property under Fed. R. Crim. P. 41(g).
The district court denied the motion because it was untimely filed. We review
questions of law dealing with a district court’s dismissal of a motion for return of
property de novo. United States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005).
We review the district court’s factual findings for clear error. Id.I.
In his June 26, 2003 motion, Artis sought the return of approximately
$10,000 taken from his Birmingham, Alabama residence and a 1989 Ford Mustang
GT, both seized on May 25, 1994.1 In response, the government stated that the
Drug Enforcement Agency (DEA) had administratively forfeited the cash on
August 19, 1994 and the vehicle on September 23, 1994. The government also
stated that notice had been published weekly for three weeks in USA Today and
1
Artis also sought the return of firearms, photographs, and a 1993 Nissan 300ZX and
requested that the government pay him for the value of three parcels of real property also
allegedly seized. The government responded that the State of Alabama had seized the firearms
and photographs, that the Nissan 300ZX had been released to a lien holder, and that there was no
evidence that any real property had been seized. On appeal, Artis does not address the denial of
his motion regarding those pieces of property. Accordingly, he has waived any claims he may
have had regarding them. Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d
1290, 1308 n.43 (11th Cir. 1998) (“Claims not presented to the court of appeals are considered
waived.”); Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998) (“Because of the
absence of argument, the issues . . . have been abandoned and will not be considered in this
appeal.”); Cont’l Technical Servs., Inc. v. Rockwell Int’l Corp., 927 F.2d 1198, 1199 (11th Cir.
1991) (“An argument not made is waived.”); Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th
Cir. 1980) (holding that because the appellants failed to discuss an issue, “[a]ny contention that
the trial court erred [on that issue] is therefore abandoned”).
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that notice had been sent by certified mail both to Artis at state jail where he was
incarcerated and to his Birmingham residence.
Rule 41(g) provides that “[a] person aggrieved by an unlawful search and
seizure of property or by the deprivation of property may move for the property’s
return.” Fed. R. Crim. P. 41(g). We have held, however, that “[w]hen property is
retained pursuant to civil forfeiture, instead of for use as evidence, a [Rule 41(g)]2
motion is not available.” United States v. Watkins, 120 F.3d 254, 255 (11th Cir.
1997); accord United States v. Eubanks, 169 F.3d 672, 674 (11th Cir. 1999) (“A
[Rule 41(g)] motion is unavailable . . . when property is retained pursuant to civil
forfeiture instead of for use as evidence.”); United States v. Castro, 883 F.2d 1018,
1020 (11th Cir. 1989) (“Defendant cannot use the criminal procedure device of
[Rule 41(g)] to seek relief from a civil forfeiture proceeding.”). “When the
government, in its written response to a [Rule 41(g)] motion, admits its position is
that, by forfeiture, the movant has already permanently lost his right to the
pertinent property, the government’s judicial admission is enough to deprive the
court of the authority to grant the [Rule 41(g)] motion.” Watkins, 120 F.3d at 255.
That is exactly what happened in this case. Accordingly, the district court
correctly denied Artis’ motion for the return of property insofar as it sought relief
2
Watkins refers to Fed. R. Crim. P. 41(e), which previously contained what is now Rule
41(g). See Howell, 425 F.3d at 976 n.3.
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under Rule 41(g).
II.
Where property has been forfeited to the government and therefore Rule
41(g) is not available, a federal court has discretion to exercise equitable
jurisdiction over the agency forfeiture decision “when the petitioner’s conduct and
the merits of his petition require judicial review to prevent manifest injustice.”
Eubanks, 169 F.3d at 674; see also In re $67,470.00, 901 F.2d 1540, 1545 (11th
Cir. 1990). In that instance, a court may exercise jurisdiction over “ the issue . . .
[of] whether the government has acted wrongfully in taking the property.”
Watkins, 120 F.3d at 255–256. The government’s taking of property without due
process is wrongful, see id. at 256, and that is what Artis alleges occurred in this
case. Artis argued in his motion for summary judgment before the district court
that the government’s attempts at notice were constitutionally deficient, and
therefore he was deprived of due process.
In his report and recommendation, the magistrate judge determined that even
if a fact issue existed regarding the adequacy of the notice to Artis, his motion was
untimely. The magistrate judge sua sponte applied the six-year statute of
limitations contained in 28 U.S.C. § 2401(a),3 which provides that “every civil
3
The court considered but did not apply the five-year limitations period prescribed by 18
U.S.C. § 983(e)(3), which applies to motions to set aside forfeiture brought under 18 U.S.C. §
4action commenced against the United States shall be barred unless the complaint is
filed within six years after the right of action first accrues.” The magistrate judge
found that Artis’ cause of action accrued on July 27, 1994, the date of the final
publication of notice in USA Today. Because Artis did not file his motion for the
return of property until nearly nine years later, the magistrate judge concluded that
Artis’ motion for return of property was time-barred by § 2401(a). Accordingly,
the magistrate judge recommended denial of Artis’ motion for summary judgment
on his claim for return of property. The district court adopted the magistrate
judge’s report and recommendation on July 19, 2005.
On appeal, Artis contends that the district court erred in finding that his
cause of action accrued on the date of final publication of notice for purposes of
applying the § 2401(a) statute of limitations because the government failed to
provide evidence that the July 27, 1994 edition of USA Today was available to him
in jail. Artis also argues that there is no evidence that he was ever aware of, or that
he should have known of, the administrative declarations of forfeiture of the cash
and the Mustang GT. He urges us to remand his case for the district court to
determine when, if ever, Artis should have known of the forfeitures.
983(e)(1), because the forfeiture in this case occurred prior to the effective date of § 983. See
Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, § 21, 114 Stat. 202, 225
(2000). Because application of either statute of limitations would bar this case, we express no
opinion on that holding.
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A statute of limitations requiring that a suit against the government be
brought within a certain period of time is a term of the United States’ waiver of
sovereign immunity. Compagnoni v. United States, 173 F.3d 1369, 1370 n.3 (11th
Cir. 1999) (“[I]f a statute authorizing suits against the United States limits the time
period in which such suits may be brought, the United States retains its sovereign
immunity as to any suits brought outside of that time period.”); Mut. Assurance,
Inc. v. United States, 56 F.3d 1353, 1355 (11th Cir. 1995); Vintilla v. United
States, 931 F.2d 1444, 1446 (11th Cir. 1991). “A court does not have subject
matter jurisdiction over a suit against the United States that is barred by the statute
of limitations.” Compagnoni, 173 F.3d at 1370 n.3. Accordingly, if Artis’ cause
of action (insofar as it seeks equitable relief from the DEA’s forfeiture of his
property) accrued more than six years before he filed his motion on June 26, 2003,
then we must affirm the district court’s denial of his motion on the basis that the
court lacked jurisdiction to entertain it.
Although no published opinion of this Court addresses this issue, two of our
sister circuits have addressed it. In Polanco v. DEA, the Second Circuit held that a
defendant’s claim for inadequate notice of a civil forfeiture proceeding initiated by
the government would accrue under § 2401(a) at the earlier of (1) the close of
forfeiture proceedings or (2) if no forfeiture proceedings had begun, when the five-
6
year statute of limitations for the government to initiate forfeiture proceedings had
run. 158 F.3d 647, 654 (2d Cir. 1998). In United States v. Minor, the Fourth
Circuit held that a defendant’s claim accrued at the earlier of (1) when he first
became aware of the forfeiture or (2) when he reasonably could have been
expected to make an inquiry that would have made him aware of the forfeiture.
228 F.3d 352, 359 (4th Cir. 2000).
We need not determine which of these rules is more sound in this case
because the district court’s denial of Artis’ motion for untimeliness is due to be
affirmed under either of them. Under the Polanco rule, Artis’ cause of action
accrued with respect to the cash and the vehicle at the time of the forfeitures in
1994 and the statute of limitations ran six years later in 2000, three years before he
filed his motion. Under the Minor rule, we conclude that Artis, who was aware of
the seizure of his property in May 1994, reasonably could have made an inquiry to
determine whether his property had been forfeited more than six years before filing
his motion in June 2003. In fact, there is evidence in the record that Artis did make
such an inquiry: Artis filed with his initial motion two letters dated March 6, 1996
addressed to federal officials in Montgomery, Alabama in which he requested
information on the whereabouts of his property. That evidence supports our
conclusion that Artis was aware that the government had information regarding his
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property and that he reasonably could have followed up on the matter or filed his
motion soon afterwards. Because Artis failed to file his motion for return of
property within six years of his cause of action accruing, the district court was
without subject matter jurisdiction to grant him equitable relief from the forfeitures
in this case.
AFFIRMED.
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