UNITED STATES OF AMERICA,                                          (USDC No. SA CV 96-1185-AHS)

Plaintiff/Appellee,                                             (USDC No. SA CR 91-66-AHS)
 

    v.

GARY H. MAROLF, in re application
for return of seized property 1981 Mango
Motor sailboat named "Asmara"

___________________________________ )
 

Pursuant to Federal Rule of Appellate Procedure 26.1, the Defendant Appellant herein, Gary H. Marolf, certifies that he is a natural person and not a corporate entity. As a result, he has no parent companies, subsidiaries or affiliates.

Dated: October 14, 1997 Respectfully submitted,
 

__________________
SHAWN R. PEREZ,
Attorney for Gary H. Marolf
 

Page No.
 

CORPORATE DISCLOSURE STATEMENT I

TABLE OF AUTHORITIES iv

REFERENCES TO CLERK'S RECORD viii

I. ISSUES PRESENTED FOR REVIEW 1

1. Whether the District Court erred in determining, on the merits, the forfeiture of a yacht under 21 U.S.C. §881, rather than ordering its return, after it found that the administrative forfeiture was void and that the government's five-year statute of limitations for forfeiture had expired? 1

II. STATEMENT OF JURISDICTION 2

A. Nature of the Case 2

1. Basis for Subject Matter Jurisdiction in the District Court. 2

3. The Notice of Appeal Was Timely Filed. 2

4. Bail Status. 2

III. STATEMENT OF THE CASE 3

IV. STATEMENT OF FACTS 4

V. STANDARD OF REVIEW 6

VI. SUMMARY OF ARGUMENT 7

VII. ARGUMENT 8

A. THE FORFEITURE PROCEDURES OF THE CUSTOMS LAWS SET FORTH IN 19 U.S.C. §§ 1602, et seq. GOVERN THE PROCEEDINGS TO BE FOLLOWED WITH RESPECT TO THE SEIZURE AND FORFEITURE OF THE VESSEL ASMARA. 8

1. The Distinction Between Administrative and Judicial Forfeiture is Crucial With Respect To Whether the Statute of Limitations has been Tolled. 9

a. Defective Notice of an Administrative Forfeitures Does Not Toll the Statute of Limitations. 9

b. A Notice of Administrative Forfeiture, Even if Filed With the District Court Does Not Satisfy the Requirements of Rule 3 of the Federal Rule of Civil Procedure. 10

c. A Forfeiture Complaint Filed in the District Court Does Not Toll the Statute of Limitations Indefinitely. 12

2. The Applicable Statute of Limitations Under the Customs Laws is Five Years. 13
 

3. The Language Of 19 U.S.C § 1621 Is Unambiguous And Therefore Conclusive. 14
 

B. THE PROPER REMEDY IS TO RETURN THE ASMARA TO MAROLF 16

VII. CONCLUSION 22

IX. CERTIFICATE OF COMPLIANCE 23

STATEMENT OF RELATED CASES
 
 

Case Law Page No.
 

Amalgamated Clothing and Textile Workers Union v. Wal-Mart Stores, Inc.,
54 F.3d 69 (2d Cir. 1995) 19

Armendariz-Mata v. United States Dept. of Justice, 82 F.3d 679 (5th Cir. 1996),
cert. denied, U.S. , 117 S. Ct. 317, 136 L. Ed. 2d 232 (1996) 16, 17

Baldwin Welcome Center v. Brown, 466 U.S. 147,
104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) 10,13

Barrera-Montenegro v. United States, 74 F.3d 657 (5th Cir. 1996) 16, 17

Boero v. Drug Enforcement Administration, 111 F.3d 301 (2d Cir. 1997) 17-20

Calabro v. United States, 1993 U.S.Dist. Lexis 12456 (E.D. N.Y. 1993)
(Order reported at 830 F.Supp. 175) 20

Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102,
64 L.Ed.2d 766, 100 S. Ct. 2051 (1980) 14

Dickerson v. New Banner Institute, Inc., 460 U.S. 103,
74 L.Ed.2d 845, 103 S. Ct. 986 (1983) 14

Erie R.Co. V. Tompkins, 304 U.S. 64,
58 S.Ct. 817, 82 L.Ed. 1188 (1938) 19

Glasgow v. United States Drug Enforcement Administration, 12 F.3d 795 (8th Cir. 1993) 16

In re Application of Denise Mayo for Return Property,
810 F. Supp. 121 (D.Ver. 1992), 1992 U.S. Dist. LEXIS 20503 20

In re Wilson, 104 Bankr. 303 (E.D. Cal. 1989),
14 Fed.R. Serv.3d (Callaghan) 1365 13

Land and Building at 2 Burditt Street, 924 F.2d 383 (1st Cir. 1991) 15

Linn & Lane Timber Co. v. United States, 236 U.S. 574,
35 S. Ct. 440, 59 L. Ed. 725 (1915) 12

Marshall Leasing, Inc. v. United States, 893 F.2d 1096 (9th Cir. 1990) 21

Maryland Tuna Corp. v. MS Benares, 429 F.2d 307 (2d Cir. 1970) 12

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) 13

Mora v. United States, 955 F.2d 156 (2d Cir. 1992) 21

Muhammed v. Drug Enforcement Agency, 92 F.3d 648 (8th Cir. 1996) 16

Mullane vs. Central Hannover Bank & Trust Co., 339 U.S. 306,
94 L. Ed. 865 , 70 S.Ct. 652 (1950) 9

North Dakota v. United States, 460 U.S. 300,
75 L. Ed.2d 77, 103 S. Ct. 1095 (1983) 20

Robinson v. Hanrahan, 409 U.S. 38,
34 L. Ed.2d 47, 93 S.Ct. 30 (1983) 9

Singleton v. Wulff, 428 U.S. 106,
96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976) 19

Soviero v. United States, 967 F.2d 791 (2d Cir. 1992) 21

United States v. $ 116,000 in U.S. Currency, 721 F. Supp. 701 (D.N.J. 1989) 14, 20

United States v. $277,000 U.S.Currency, 69 F.3d 1491 (9th Cir. 1995) 21

United States v. $46,588, 103 F.3d 902 (9th Cir. 1996) 6

United States v. $8850 In United States Currency, 461 U.S. 555,
103 S. Ct. 2005, 76 L. Ed.2d 143 (1983) 9, 13, 14

United States v. 1980 Lear Jet, Model 35A Serial No. 277,
38 F.3d 398, 400 (9th Cir. 1994) 6

United States v. Alvarez-Sanchez, 511 U.S. 350,
114 S.Ct. 1599, 128 L.Ed.2d 319 (1994). 19

United States ex rel. DeLoss v. Kenner Gen. Contrs. Inc., 764 F.2d 707 (9th Cir. 1985) 12

United States v. Giovanelli, 998 F.2d 116 (2nd. Cir. 1993) 20

United States v. Giraldo, 45 F.3d 509 (1st Cir. 1995) 16

United States v. Hurt, 795 F.2d 765, (9th Cir. 1986),
cert. denied, 484 U.S. 816 (1987) 14

United States v. James Daniel Good Property, 971 F.2d 1376 (9th Cir. 1992),
rev'd in part, 114 S. Ct. 492 (1993) 15

United States v. Kubrick, 444 U.S. 111,
62 L. Ed. 2d 259, 100 S. Ct. 352 (1979) 14

United States v. Marolf, __F.Supp.__ (C.D.Cal., July 11, 1997),
1997 U.S. Dist. LEXIS 10210 3, 5, 17

United States v. Marolf, 997 F.2d 632 (9th Cir. 1993) 3

United States v. Marolf, No. 95-56281 (9th Cir. 1996) 5

United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987) 21

United States v. Mills, 991 F.2d 609 (9th Cir. 1993) 6

United States v. One Ford Coach, 307 U.S. 219,
59 S. Ct. 861, 83 L. Ed. 1249 (1939) 15, 20

United States v. Real Property at 9167 Rock Road,
1995 U.S. Dist. LEXIS 7843 (N.D. Cal 1995). 20

United States v Shabahang Persian Carpets, 926 F.Supp 123 (E.D. Wis. 1996) 20

United States v. Ursery, 116 S. Ct. 2135,
135 L.Ed.2d 549 (1996) 3

West v. Conrail, 481 U.S. 35,
107 S. Ct. 1538, 95 L. Ed. 2d 32 (1987) 12

United States Code

19 U.S.C. § 1602 7, 8, 16

19 U.S.C. § 1608 16

19 U.S.C. § 1609(a) 9

19 U.S.C. § 1621 9, 13, 14

19 U.S.C. §1607(a) 9

21 U.S.C. § 841(a)(1) 8

21 U.S.C. § 881 1, 4, 8, 11, 15

21 U.S.C. § 963 5

28 U.S.C. § 1291 2

28 U.S.C. § 2255 3, 5

Federal Rules of Appellate Procedure

Federal Rule of Appellate Procedure Rule 4 2

Federal Rule of Appellate Procedure Rule 26.1 I

Federal Rules of Criminal Procedure

Fed.R.Crim.P Rule 41(e) 2, 3, 5, 6, 20, 21

Federal Rules of Civil Procedure

Fed.R.Civ.P. Rule 3 7, 10-12

Fed.R.Civ.P. Rule 4 7, 12

Fed.R.Civ.P. Rule 8(a)(2) 10, 11

Fed.R.Civ.P. Rules A-F 11
 

Legislative History

128 Cong. Rec. H9850-51 (daily ed. Dec. 15, 1982)
(Remarks of Rep. Edwards) 12
 

CR1 3, 5

CR 9 2, 3

CR10 2

CR10 [91cr66] 3

CR101[91cr66] 5

CR 110 [91cr66] 5

CR216 [91cr66] 2, 3

CR337[91cr66] 3, 5

CR365[91cr66] 3, 5
 
 

1. Whether the District Court erred in determining, on the merits, the forfeiture of a yacht under 21 U.S.C. §881, rather than ordering its return, after it found that the administrative forfeiture was void and that the government's five-year statute of limitations for forfeiture had expired?
 

A. Nature of the Case
 

1. Basis for Subject Matter Jurisdiction in the District Court.

This is an appeal from a decision of the Honorable Alicemarie Stotler, United States District Court for the Central District of California, denying Appellant Gary H. Marolf's Motion For Return of Seized Property Pursuant to Federal Rule of Criminal Procedure 41(e). (CR 9; ER7:10-41)⁽¹⁾

2. Basis for Jurisdiction in the Court of Appeals.

The district court's order denying Marolf's Motion For Return of Seized Property is a final decision within the meaning of 28 U.S.C. § 1291. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

3. The Notice of Appeal Was Timely Filed.

The district court entered its order denying Marolf's Motion For Return of Seized Property on July 11, 1997. (CR9) Marolf timely filed his notice of appeal on August 18, 1997, in accordance with FRAP 4. (CR10; ER8:42)

4. Bail Status.

Marolf is currently incarcerated at F.C.I. La Tuna, New Mexico-Texas. After he is released from incarceration, he faces a four year term of supervised release. (CR216-[91cr66])

The defendant was arrested on September 16, 1991, and, on March 23, 1992, entered a conditional guilty plea to one count of conspiracy to import approximately 900 kilograms of marijuana into the United States in violation of 21 U.S.C. § 963 (Count One of the First Superseding Information). (CR10 [91cr66])

On May 18, 1992, defendant was sentenced to 121 months imprisonment, four years of supervised release, and was ordered to pay a special assessment of $ 50.00. (CR216 [91cr66]) The Court of Appeals affirmed his conviction and sentence on June 30, 1993. United States v. Marolf, 997 F.2d 632 (9th Cir. 1993)

On May 11, 1995, defendant filed a petition under 28 U.S.C. § 2255 seeking to vacate his sentence on the grounds that the civil forfeiture of the vessel Asmara was former jeopardy for his criminal conviction. (CR337[91cr66]) The petition was denied by the Court on August 15, 1995, (CR365[91cr66]) and the Court of Appeals affirmed on July 9, 1996⁽²⁾.

On December 2, 1996, defendant filed the instant motion for the return of property under Fed. R. Crim. P. 41(e).(CR1) The motion was denied by the District Court on July 11, 1997⁽³⁾. (CR9) The instant appeal follows.
 

On July 11, 1991, D.E.A agents executed a search warrant and discovered approximately 1,445 pounds of marijuana in a warehouse rented by co-defendant Lawrance A. Morgan. A further search of Mr. Morgan's place of business and residence resulted in an arrest warrant for Gary H. Marolf, (hereinafter "Marolf") and the seizure of the Asmara, a 1981 Mango 15.8m ketch motor sailor owned by Marolf.

According to DEA records the boat was seized on July 12, 1991, pursuant to Title 21 841(a)(1), and moved to the Orange County Sheriffs Harbor Anchorage. (ER1:1-2) The government concedes that Marolf was not personally served with notice of the seizure or the commencement of administrative forfeiture proceedings. (See, ER7:14,[lines 8-9])

On September 27, 1991, a multi-count indictment was filed against Marolf and the co-defendants in the Central District of California⁽⁴⁾, charging them with several violations of Title 21.

Marolf was arrested on September 16, 1991 in Michigan and transferred to Metropolitan Detention Center in Los Angeles shortly thereafter. He remained in the custody of the United States Marshall until January 31, 1992, when he was released on bond. At no time, while in the custody of the Marshal, or after being released on bond, was Marolf served with proper notice of the administrative forfeiture proceedings.

The declaration of forfeiture in the administrative forfeiture proceeding became final on September 21, 1991. (ER4:7)

Marolf and his co-defendants filed motions to suppress evidence obtained from the Asmara on November 15, 1991, claiming inter alia, an interest in the vessel. (CR101[91cr66] ) The government argued in its opposition to the motions that only Marolf had standing as to the Asmara.(CR 110 [91cr66]; ER5:8)

On May 11, 1995, Marolf filed a motion pursuant to 28 U.S.C. §2255 challenging his conviction for violation of 21 U.S.C. § 963 on the grounds that the forfeiture of the Asmara was former jeopardy for that conviction and sentence. (CR 337[91cr66]) On August 15, 1995 the court denied Marolf's motion, stating that jeopardy did not attach in the uncontested forfeiture.(CR 365[91cr66]) The Court also noted in its order that if, as Marolf argued, the government did not provide proper notice of the forfeiture, defendant's remedy was to "challenge the forfeiture proceeding as invalid." Marolf, __F.Supp.____ , 1997 U.S. Dist. LEXIS 10210, *4, (ER7:13). The Ninth Circuit affirmed the denial of defendant's motion to vacate sentence on July 9, 1996. United States v. Marolf, No. 95-56281 (9th Cir. 1996)

On December 2, 1996, Marolf filed a Motion for Return of Seized Property pursuant to Fed.R.Crim.P. Rule 41(e), claiming that the forfeiture was void for lack of due process notice and that he was entitled to the return of the property because the government's statute of limitations for filing a forfeiture action had expired, thereby precluding the government from pursuing forfeiture proceedings. (CR1)

In its published opinion, the district court found that "under Mullane, [the] lack of notice violated due process" and that "[t]he government indisputably was required to notify the defendant at least as of December 1991 when it was determined with certainty that he was the owner of the seized vessel, and probably even as early as July 1991". (ER7:28-29) (The statute of limitations for the government to file judicial forfeiture proceedings expired on July 11, 1996.) The court further found that "in the absence of constitutionally adequate notice of the earlier administrative forfeiture of the vessel by the DEA, that action is voided", and then the court, despite the expiration of the statute of limitations, determined that the proper remedy was to consider Marolf's claim to the vessel on the merits. (ER7:39)

The court concluded that Marolf "failed to offer any reason why the vessel is not subject to forfeiture" and that "Marolf has admitted all the facts necessary to justify the forfeiture when he pleaded guilty." (ER7:40) The court ultimately found that "the forfeiture of the vessel Asmara must stand."(ER7:40)

The standard of review of a district court's denial of a Rule 41(e) is de novo. See United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993), The standard of review of a district court's interpretation of federal forfeiture law is de novo. United States v. $46,588, 103 F.3d 902 (9th Cir. 1996); United States v. 1980 Lear Jet, Model 35A Serial No. 277, 38 F.3d 398, 400 (9th Cir. 1994).

A forfeiture claimant can lose by default in the administrative forfeiture process if the government strictly complies with the statutory and constitutional notice requirements and the claimant fails to timely respond. Such a properly conducted administrative forfeiture would be legally valid and final, and no judicial proceedings would be required to perfect the government's title to the property.

That did not happen in the case at bar. The government concedes that Marolf was not given proper notice of the administrative proceedings, and no complaint for forfeiture was filed in the district court.

The procedures governing forfeitures are controlled by the customs laws found at 19 U.S.C. § 1602 et seq. The statute of limitations established for bringing an action under the customs laws is five years from the date of the discovery of the alleged offense. What the government cannot accomplish by a valid administrative forfeiture, made final before the statute of limitations ran, they can only accomplish in a judicial action filed in court before the statute of limitations expires, and served within the period authorized by Fed.R.Civ.P. Rules 3 and 4. The reason for this, is that an administrative forfeiture notice, unlike a civil forfeiture complaint filed in district court, does not toll the statute of limitations. Furthermore, under Rules 3 and 4 of the Fed.R.Civ.P., even a properly filed judicial forfeiture complaint does not toll the statute indefinitely.

In the instant case, the government discovered Marolf's offense on July 11, 1991, and the vessel was seized the following day. The government's statute of limitations ran on July 11, 1996, five years later, without the government filing a forfeiture complaint in court, or properly commencing and concluding administrative forfeiture proceedings in conformity with the customs laws.

Forfeiture statutes must be strictly construed against the government. The forfeiture of the Asmara must be vacated, and the vessel, or its value at the time of the seizure, must be returned to Marolf as a matter of law.

A. THE FORFEITURE PROCEDURES OF THE CUSTOMS LAWS SET FORTH IN 19 U.S.C. §§ 1602, et seq. GOVERN THE PROCEEDINGS TO BE FOLLOWED WITH RESPECT TO THE SEIZURE AND FORFEITURE OF THE VESSEL ASMARA.
 

In the instant case, DEA records show that the vessel Asmara was seized on July 12, 1991, pursuant to 21 U.S.C. § 841 (a)(1) and was administratively forfeited to the United States on September 20, 1991. (ER7) No civil complaint was ever filed in the district court.

Section 881(d) requires that the customs laws relating to the seizure and forfeiture of property be applied to seizures of property under this section, and the duties assigned in those laws to the customs officer are instead delegated to persons authorized or designated for such purposes by the Attorney General (e.g., the DEA). The customs laws are found at 19 U.S.C § 1602 et seq.

1. The Distinction Between Administrative and Judicial Forfeiture is Crucial With Respect To Whether the Statute of Limitations has been Tolled.

a. Defective Notice of an Administrative Forfeitures Does Not Toll the Statute of Limitations.

Under the codified procedures for an "administrative forfeiture", the DEA (or other designated agency) is required to publish notice of the seizure and intent to forfeit the seized article for at least three successive weeks, and to send written notice of the seizure and information on the applicable procedures to any person who appears to have an interest in the seized article. 19 U.S.C. §1607(a).

A person desiring to claim the seized property then has 20 days from the date of the first publication of the notice to file a claim, accompanied by a cost bond (or affidavit of indigence). If no claim is filed or bond given within this time, the property is declared forfeited to the United States and sold or otherwise disposed of according to law. 19 U.S.C. § 1609(a). This "administrative forfeiture" has the same force and effect as a final order of forfeiture in a judicial forfeiture proceeding in a district court. 19 U.S.C. § 1609(b).

There are no tolling provisions found for administrative forfeiture proceedings. The government is obligated to commence and complete the forfeiture within five-years of the alleged violation, or "if such violation arises out of fraud, within five-years after the date of discovery of fraud." 19 U.S.C. § 1621. "Congress has required the Government to institute forfeiture proceedings within five years." United States v. $8850 in United States Currency, 461 U.S. 555, 563, 103 S. Ct. 2005, 76 L. Ed.2d 143 (1983).

In the case at bar, the government concedes that Marolf was not given notice that comports with the statute; or with the requirements established under Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (notice reasonably calculated under all circumstances to apprise parties of the pendency of the action and afford an opportunity to present objections); and Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972) (notice sent to claimant's home not sufficient when state knew he was incarcerated).

The government failed to give proper notice of the forfeiture before the statute of limitations expired on July 11, 1996, and there is no authority to show that the statute was somehow tolled.

b. A Notice of Administrative Forfeiture, Even if Filed With the District Court Does Not Satisfy the Requirements of Rule 3 of the Federal Rule of Civil Procedure.

In Baldwin Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), the Supreme Court held that there was no authority for holding that the statutory 90-day period for invoking the court's jurisdiction was tolled by the filing a right to sue letter in a Title VII action.

Rule 3 of the Federal Rules of Civil Procedure states that '[a] civil action is commenced by filing a complaint with the court.' A complaint must contain, inter alia, 'a short and plain statement of the claim showing that the pleader is entitled to relief.' Fed. Rule Civ. Proc. 8(a)(2). The District Court held that the right-to-sue letter did not satisfy that standard. The Court of Appeals did not expressly disagree, but nevertheless stated that the 90-day statutory period for invoking the court's jurisdiction was satisfied, apparently concluding that the policies behind Title VII mandate a different definition of when an action is 'commenced.' (footnote omitted) However, it identified no basis in the statute or its legislative history, cited no decision of this Court, and suggested no persuasive justification for its view that the Federal Rules of Civil Procedure were to have a different meaning in, or were not to apply to, Title VII litigation. Because we also can find no satisfactory basis for giving Title VII actions a special status under the Rules of Civil Procedure, we must disagree with the conclusion of the Court of Appeals.

Assuming, for the sake of argument, that the government could demonstrate that the notice of administrative forfeiture was filed in the district court, the notice does not comport with Rule 3 of the Federal Rules of Civil Procedure. Rule 3 states that "[a] civil action is commenced by filing a complaint with the court." A complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ. P.. 8(a)(2)⁽⁵⁾.

An administrative notice of forfeiture which states that property was seized for forfeiture under Title 21 because it was used or acquired as a result of a drug related offense does not satisfy the requirement of setting forth the factual basis in order for the claimant to "answer" the notice.

Appellant can find no authority to suggest that the filing of a notice of an administrative forfeiture with a district court would somehow serve to toll the government's five-year statute of limitations. There can be even less authority, to show that where notice of an administrative forfeiture was not given, that the statute of limitations was tolled when the notice was not filed in the district court.

c. A Forfeiture Complaint Filed in the District Court Does Not Toll the Statute of Limitations Indefinitely.

Assuming, arguendo, that a defective notice of forfeiture that has not been filed with the district court can be construed as a complaint and thereby serves to toll the statute of limitations, the notice must still be served within 120 days of the date the notice is considered filed.

In contrast to an administrative forfeiture, a judicial forfeiture is commenced by the filing of a complaint in the district court in compliance with Rule 3 of the Federal Rules of Civil Procedure and must be served on the claimant within 120 days of the filing of the complaint. The timely commencement of an action pursuant to Rule 3 of the Federal Rules of Civil Procedure serves to toll the statute of limitations for purposes of an action based on federal law. West v. Conrail, 481 U.S. 35, 38-39, 107 S. Ct. 1538, 95 L. Ed. 2d 32 (1987). This rule of civil procedure also applies in admiralty and maritime proceedings. Maryland Tuna Corp. v. MS Benares, 429 F.2d 307, 320 (2d Cir. 1970).

The longstanding practice under the Federal Rules of Civil Procedure, and under pre-1938 equity practice, was that the tolling of the statute of limitations is conditional upon the timely completion of service of process. Linn & Lane Timber Co. v. United States, 236 U.S. 574, 578,35 S. Ct. 440, 59 L. Ed. 725 (1915). Thus, failure to be diligent in serving process could nullify the tolling.

The plain language of Rule 4 of the Federal Rules of Civil Procedure and the legislative history confirm that the dismissal without prejudice was to leave the plaintiff in the same position as if the action had never been filed. United States ex rel. DeLoss v. Kenner Gen. Contrs. Inc., 764 F.2d 707, 710-11 (9th Cir. 1985); 128 Cong. Rec. H9850-51 (daily ed. Dec. 15, 1982) (remarks of Rep. Edwards).

Leaving the plaintiffs in the same position as if they had not filed, leaves them time barred when the statute of limitations has run prior to refiling and serving the complaint. There is no indication that the Congress altered the standing practice regarding the tolling as nullified by failure to be diligent in serving. Any other interpretation would allow a statute to be tolled indefinitely. "[O]ne could file ... not serve ... refile ... and so forth, until the end of time without becoming vulnerable to the defense of the statute of limitations. That proves too much and is not the law." In re Wilson, 104 Bankr. 303, 306 (E.D. Cal. 1989), 14 Fed.R. Serv.3d (Callaghan) 1365.

Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. As we stated in Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980), 'in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'

Welcome Center, 104 S.Ct. at 1726.

2. The Applicable Statute of Limitations Under the Customs Laws is Five Years.

The statute of limitations applicable to an action filed under the customs laws is found in 19 U.S.C. § 1621, which provides, in relevant part, that:

No suit or action to recover any ... pecuniary penalty or forfeiture of property accruing under the customs laws shall be instituted unless such suit or action is commenced within five years after the time when the alleged offense was discovered; ...

The vessel Asmara was seized for forfeiture on July 12, 1991, the day after the discovery of the offense for which Marolf was charged.

Under the statutes governing the time limits for instituting forfeiture of the vessel, the government was unambiguously required to commence the action within five years of the discovery of the offending actions. That five year period was exhausted on July 11, 1996.

In $8850 In United States Currency, 461 U.S. 555, the Government argued that the timeliness of the suit is controlled only by the applicable statute of limitations. "Here, Congress has required the Government to institute forfeiture proceedings within five years." $8850, 461 U.S. at 563.

'Statutes of limitations are statutes of repose representing 'a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.'

United States v. $ 116,000 in U.S. Currency, 721 F. Supp. 701, 705 (D.N.J. 1989) (quoting United States v. Kubrick, 444 U.S. 111, 117, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979)).

In the case at bar, the government simply waited too long to commence a forfeiture action.

Therefore, any suit for forfeiture of the Asmara after July 11, 1996, is untimely under the statute and comports with the government's argument in $8850 that "the timeliness is controlled only by the applicable statute of limitations." 461 U.S. 563.

3. The Language Of 19 U.S.C § 1621 Is Unambiguous And Therefore Conclusive.

In construing a statute, the courts must first look to the plain language used by Congress. North Dakota v. United States, 460 U.S. 300, 312, 103 S. Ct. 1095, 75 L. Ed. 2d 77 (1983); Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 110, 103 S. Ct. 986,74 L. Ed. 2d 845 (1983); United States v. Hurt, 795 F.2d 765, 770 (9th Cir. 1986), cert. denied, 484 U.S. 816 (1987).

If the language of the statute is unambiguous, it is conclusive unless there is a "clearly expressed legislative intention to the contrary. . . ." North Dakota, 460 U.S. at 312 (quoting Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980)); Dickerson, 460 U.S. at 110.

Section 1621 is phrased in the negative: "No suit or action to recover any pecuniary penalty or forfeiture of property accruing under the customs laws shall be instituted unless such suit or action

is commenced within five years after the time when the alleged offense was discovered." 19 U.S.C. § 1621. (italic emphasis added.)

As the First Circuit reasoned, this section provides "that a forfeiture action cannot be brought after a lapse of five years..." Land and Building at 2 Burditt Street, 924 F.2d 383, 385 (1st Cir. 1991)(dicta). In Judge Noonan's concurring and dissenting opinion in James Daniel Good, he stated that

[o]nce property has been used in the commission of a narcotics offense it is subject to forfeit. 21 U.S.C. § 881(a). The government is free to claim the forfeiture any time after the offense is discovered. The only relevant restriction is the statute of limitations, which bars suit five years after the time of discovery.

United States v. James Daniel Good Property, 971 F.2d 1376, 1384 (9th Cir. 1992)(Noonan, J., Concurring and Dissenting), rev'd in part on other grounds, 114 S. Ct. 492 (1993) (Italic emphasis added.)

Forfeitures should only be enforced if they fall within both the letter and spirit of the law. United States v. One Ford Coach, 307 U.S. 219, 226, 59 S. Ct. 861, 864-65, 83 L. Ed. 1249 (1939).

The language of Section 1621 is clear. The statute of limitations is five years from the date the offense is discovered.

In the instant case, July 11, 1996, was the last date that a forfeiture action could be commenced against the Asmara. The government did not timely commence an action and thereby failed to follow the "letter of the law."

B. THE PROPER REMEDY IS TO RETURN THE ASMARA TO MAROLF.

In its argument below, the government asserted that the proper relief to be granted is to reopen the forfeiture proceedings and litigate the forfeiture on the merits, regardless of the statute of limitations bar. However, there is no authority for this position.

The First and Eighth Circuits have ruled that the district court must set aside the forfeiture and either order return of the seized property or direct the government to institute judicial forfeiture proceedings. See, e.g., Muhammed v. Drug Enforcement Agency, 92 F.3d 648, 654 (8th Cir. 1996) (administrative forfeiture void for inadequate notice; case remanded for further proceedings on

the merits); United States v. Giraldo, 45 F.3d 509, 512 (1st Cir. 1995) (district court must set aside the declaration of forfeiture and order the Customs Service either to return the money or begin judicial forfeiture proceedings); Glasgow v. United States Drug Enforcement Administration, 12 F.3d

795, 799 (8th Cir. 1993) (administrative forfeiture void due to defective notice; case remanded to vacate forfeiture and to order DEA either to return the property or initiate judicial forfeiture proceedings).

In all of the above cases the five year statute of limitations had not run. For example: In Muhammed, the property was seized on September 1, 1994, the motion seeking its return filed on September 21, 1994, 92 F.3d 648; in Giraldo, the property was seized in February 1993, the motion for return of property filed on March 1, 1994, 45 F.3d 509; and in Glasgow, the property was seized on November 23, 1988, and the claimant sought its return "by the end of November and continuously thereafter." 12 F.3d at 796.

The Fifth Circuit, in Barrera-Montenegro v. United States, 74 F.3d 657, 661 (5th Cir. 1996), remanded the case for renewed administrative proceedings or the commencement of judicial proceedings pursuant to 19 U.S.C. § 1608, but in Armendariz-Mata v. United States Dept. of Justice, 82 F.3d 679, 683 (5th Cir. 1996), cert. denied, U.S. , 117 S. Ct. 317, 136 L. Ed. 2d 232 (1996), directed the district court to vacate the DEA's administrative forfeiture without providing further instruction or comment.

The fundamental difference between the two Fifth Circuit cases, Barrrera-Montenegro and Armendariz-Mata, is that Barrera filed a Petition For Remission with the DEA, as well as a District Court action, prior to the exhaustion of the statute of limitations. 74 F.3d at 658-59. In Armendariz-Mata, however, the five-year statute had run at the time he filed his motion for relief. Ergo the reason for a remand in Barrera, while the forfeiture in Armendariz-Mata's was simply vacated and the government's petition for certiorari later denied.

In the instant case, the district court stated,

[i]t is significant that in none of these cases had the statute of limitations for filing judicial forfeiture proceedings expired (footnote omitted) as it has with regard to the forfeiture of the vessel Asmara. If left with only these cases for authority, the Court might be inclined to conclude that the only outcome available is to return the vessel to the defendant.
 

Marolf, at 1997 U.S. Dist. LEXIS 10210 *39 (ER7:37).
 

The court, in reaching the conclusion that the proper remedy for defective notice is to determine the forfeiture on the merits, relied on the Second Circuit opinion in Boero v. Drug

Enforcement Administration, 111 F.3d 301, 306 (2d Cir. 1997).

In Boero, the claimant sought the return of $ 1,799.46 in currency seized from him and administratively forfeited by the DEA. He alleged, and the DEA conceded, that he had never received proper notice. The district court found that the DEA had failed to comply with the applicable notice requirements and directed the DEA to recommence administrative proceedings, giving Boero notice of the administrative claim procedures. The Court of Appeals vacated this part of the district court's judgment and directed the district court to consider Boero's claim on the merits.

When the government is responsible for a known claimant's inability to present a claim, through the government's disregard of its statutory obligation to give notice (or otherwise), a hearing on the merits is available in the district court.
 

111 F.3d at 306.

In the analysis of Boero in the instant case (ER7:35-39), there are several important facts that were overlooked by the district court and which distinguish that case from the case at bar.

Perhaps the most significant of all is that at the time Boero filed his motion, the statute of limitations had not run. Boero's sole district court challenge was predicated on the DEA's concession that they failed to give him notice of the administrative proceeding. Boero's position was that the forfeiture was void and the property should therefore be returned. However, the district court agreed with the DEA's position that Boero's motion should be treated as a timely, but unperfected claim and ordered the DEA to give notice and start anew with the administrative process.

On appeal, the Second Circuit held that Boero's complaint properly invoked the jurisdiction of the district court to correct the deficiency. It is important to note that the court of appeals pointed out that "[o]rdinarily, forfeiture proceedings under the customs laws must be commenced within five years." Id. The facts are silent as to whether or not the government perfected notice on the claimant prior to the running of the statute of limitations. If they did not, the affirmative defense of the statute of limitations would be available to Boero on remand in the determination of the forfeiture on the merits.

Furthermore, because Boero did not raise the issue of the statute of limitations either in the district court or on appeal, the court of appeals did not consider it sua sponte. The general rule followed by most Circuit Courts of Appeal, including the Second Circuit, is that the court will not address an issue raised on appeal for the first time. See e.g., Amalgamated Clothing and Textile Workers Union v. Wal-Mart Stores, Inc., 54 F.3d 69, 73 (2d Cir. 1995) (quoting Singleton v. Wulff, 428 U.S. 106, 120, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976)); and see also, United States v. Alvarez-Sanchez, 511 U.S. 350, n.5, 114 S.Ct. 1599, 1605 n.5, 128 L.Ed.2d 319 (1994).

If the general rule is that a court of appeal won't consider an issue that wasn't raised below, it must be even less likely that a court of appeal would consider an issue that was not raised by either party in the district court or on the appeal. But See, Erie R.Co. V. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)( where the Supreme Court decided to overrule an earlier case even though the parties had not briefed or argued the issue.)

Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, see Turner v. City of Memphis, 369 U.S. 350 (1962), or where "injustice might otherwise result." Hormel v. Helvering, 312 U.S., at 557. (footnote omitted) Suffice it to say that this is not such a case. The issue resolved by the Court of Appeals has never been passed upon in any decision of this Court. This being so, injustice was more likely to be caused than avoided by deciding the issue without petitioner's having had an opportunity to be heard.
 

Singleton, 428 U.S. at 121.

In a case where the facts are not developed, such as those in Boero concerning whether some action was taken that would toll the statute, or whether the government did in fact notice the forfeiture prior to the running of the statute of limitations, it would appear that the court would be less likely to rule on an issue that was not raised by either party.

However, in the instant case, the statute of limitations was raised by Marolf in his motion and was fully litigated by the parties. Therefore, the government's reliance on the Second Circuit decision in Boero is misplaced.

Additionally, the decision in Boero did not overrule that circuit's more analogous decision in United States v. Giovanelli, 998 F.2d 116 (2nd. Cir. 1993), where the court of appeals reversed the district court's denial of a Rule 41(e) motion for the return of seized property. In that case, the court stated that,

we cannot agree with it that the defendant was in some way estopped from making his Rule 41(e) motion by his having withheld it until the statute of limitations had run against the government despite his "actual notice" of the government's belief that it had instituted forfeiture proceedings ... Assuming, arguendo, that agent Beauboin's irrelevant testimony about his personal belief that some sort of forfeiture proceedings had been undertaken would have put defendant on notice that the government shared that belief, such notice would have availed the government nothing. The forfeiture statutes give the government vast and important powers, but they must be exercised in the precise manner the statutes provide. See, e.g., United States v. One Ford Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 865, 83 L.Ed. 1249 (1939) ("Forfeitures are not favored; they should be enforced only when within both the letter and spirit of the law"). The statutes impose no duty on a defendant to prevent the government from losing its rights through carelessness. (bold italic emphasis added)
 

Giovanelli, at 119.

In similar fashion, a host of district courts have concluded that where the government has failed to notice and/or timely file a forfeiture action, the forfeiture must be dismissed and the property returned to the claimant. See, e.g., Calabro v. United States, 1993 U.S.Dist. Lexis 12456 (E.D. N.Y. 1993) (Order reported at 830 F.Supp. 175); United States v Shabahang Persian Carpets, 926 F.Supp 123 (E.D. Wis. 1996); In re Application of Denise Mayo for Return Property, 810 F. Supp. 121 (D.Ver. 1992), 1992 U.S. Dist. LEXIS 20503; United States v. $ 116,000 in U.S. Currency, 721 F. Supp. 701 (D.N.J. 1989); United States v. Real Property at 9167 Rock Road, 1995 U.S. Dist. LEXIS 7843 (N.D. Cal 1995).

A party collaterally attacking a forfeiture action may seek return of the forfeited property as an equitable remedy (41(e)). Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1099 (9th Cir. 1990) (specifically concluding that the plaintiff should be able to present to the district court a claim alleging constitutionally deficient notice and seeking recovery of forfeited property. Id. at 1099-1101). The fact that the property itself cannot be returned does not defeat a claim in equity. United States v. Martinson, 809 F.2d 1364,1367-68 (9th Cir. 1987). (court in equity may adjust remedies so as to grant the necessary relief.); Soviero v. United States, 967 F.2d 791, 792-93 (2d Cir. 1992) (case not moot where property destroyed because equitable jurisdiction of court gives it power to fashion appropriate relief); Mora v. United States, 955 F.2d 156, 158-59 (2d Cir. 1992) (same).

In the instant case, the Asmara, valued by the government at $240,000.00 at the time of the taking, was sold by the government. Should the Court find that the proper remedy is the return of the vessel, the district court has the equitable power to make an equitable determination and fashion an appropriate remedy.

In United States v. $277,000 U.S.Currency, 69 F.3d 1491 (9th Cir. 1995), the court of appeals held that to the extent that the government has profited from the use of property (i.e., earned interest), it must disgorge those earnings along with the property itself. Should the court find that the government earned interest on the proceeds from the sale of the Asmara, then Marolf would be entitled to that interest. Marolf should be entitled to his 100% equity in the vessel plus any interest earned on the proceeds of the sale of the vessel.

As is demonstrated above, in cases where the statute of limitations has run and the government has failed to timely file a forfeiture action, the proper remedy is to return the property to the claimant. Such is the appropriate remedy in this case.

Based on the foregoing, appellant, Gary H. Marolf, respectfully requests that this Court reverse the district court's order of forfeiture, and order the vessel, or its value at the time of the seizure plus any interest earned by the government on the sale of the vessel, returned to Marolf.

Respectfully submitted,
 

SHAWN R. PEREZ, ESQ.

Pursuant to Ninth Circuit Rule 32(e)(4), I certify that the Appellant's Opening Brief conforms to the following:

All lines in the brief are double spaced and is comprise of a monospaced typeface of not less than 10.5 characters per inch. The brief does not exceed 40 pages and contains only 6622 words.

Dated: November 17, 1997 Respectfully submitted,
 

SHAWN R. PEREZ

Attorney for Appellant
 

UNITED STATES OF AMERICA, )

) (USDC No. SA CV 96-1185-AHS)

Plaintiff/Appellee, ) (USDC No. SA CR 91-66-AHS)

)

V. )

) DECLARATION OF SERVICE

GARY H. MAROLF, in re application )

for return of seized property 1981 Mango )

Motor sailboat named "Asmara" )

)

Defendant/Appellant )

___________________________________ )
 

I, Shawn R. Perez, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is P.O. Box 3119, Dana Point, California.
 

On December __, 1997, I served the foregoing documents described as Appellant's Opening Brief in the above entitled action by depositing in the United States Post Office in Dana Point, CA and addressed as follows:
 
 

OFFICE OF THE UNITED STATES ATTORNEY

Carla Ford, AUSA

Federal Building, Suite 7516

300 North Los Angeles Street

Los Angeles,CA 90012
 
 

I declare under penalty of perjury that the foregoing is true and correct.
 

Executed on December__, 1997, at Dana Point, California.
 

____________________________

SHAWN R. PEREZ, ESQ.

1. "CR" refers to Clerk's Record and is followed by the Docket number. Where the referenced Clerk's Record is from the criminal docket, the page number is followed by the case number "[91cr66]". "ER" refers to the Excerpts of the Record and is followed by the tab and page number.

2. The argument presented was foreclosed by the decision in United States v. Ursery, 135 L.Ed. 2d 549, 116 S. Ct. 2135 (1996).

3. The decision was published on October 13, 1997; 1997 U.S. Dist. LEXIS 10210; 97 DAR 12812 (C.D.Cal)

4. United States v. Lawrance A. Morgan, et al., SA CR 91-66-AHS

5. The Supplemental Rules for Certain Admiralty and Maritime Claims require that complaints for forfeiture be verified and that they state with particularity the facts underlying the claim. Fed. R. Civ. P. C(2), E(2)(a). These rules abandon the concept of notice pleading and instead require allegations of specific facts supporting probable cause. The Supplemental Rules For Certain Admiralty and Maritime Cases (Federal Rules of Civil Procedure A-F) apply in this case pursuant to 21 U.S.C. § 881(b).