00-2337

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA		|
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			Plaintiff/Appellee,		|
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v.							|	D.C. No. 92-0486 JC
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GABRIEL RODRIGUEZ-AGUIRRE,		|
ELENO AGUIRRE,  DOLORAS 		|
CONTRERAS AND TONY BANCOMO	|
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			Defendants/Appellants.	|
____________________________________|

JURISDICTIONAL STATEMENT

	This appeal is from the denial of Defendants’ Motion for Return of Property, filed pursuant to Federal Rule of Criminal Procedure 41(e) and the general equitable jurisdiction of the court.  Jurisdiction exists to hear post-conviction Rule 41(e) motions under 28 U.S.C. § 1331.  United States v. Clark, 84 F.3d 378, 381 (10^th Cir. 1996).
	The motion was denied on August 17, 2000.  Appellants filed a timely notice of appeal on August 25, 2000.

ISSUES PRESENTED
	1.  Whether the district court erred in holding that claimants lacked standing to move for return of property seized from their homes and businesses during the execution of search warrants in the underlying criminal case?
	2.  Whether the district court erred in holding that laches barred recovery where there was no allegation that the government was prejudiced by the Appellants’ delay in bringing the motion for return of property?
STATEMENT OF THE CASE
	On April 20, 2000, Appellants filed a motion for return or property (Docket # 1584, App. 5-20), listing 127 items of personal property which were seized during the execution of search warrants at their homes and businesses at the onset of the underlying criminal case, but which have never been named in any of the three judicial forfeiture proceedings brought against Appellants’ other seized property.  Appellants never received notice of any administrative forfeiture proceedings against these items, and they believe no administrative forfeiture actions were ever commenced against these items.  
	On May 1, 2000, the government filed a motion to dismiss the Rule 41(e) motion (Docket # 1588, App. 21).  The government did not dispute the facts alleged in the Rule 41(e) motion, but argued that the motion should be dismissed on statute of limitations, laches and standing grounds.  Defendants filed and served a response to the motion to dismiss on May 17 (Docket # 1592, docketed May 22).    
	On July 19, 2000, Magistrate Judge Leslie C. Smith issued Findings and Recommendations (Docket # 1603, App.27) denying the motion “based on lack of standing and laches.”   Appellants filed objections to the Magistrate Judge’s proposed findings (Docket # 1607, App. 32) on August 4, 2000.  On August 17, Judge Conroy issued his order (Docket # 1610, App. 45) overruling Appellants’ objections.
STATEMENT OF FACTS
	On October 21, 1992 numerous search warrants and seizure warrants were executed on the homes and business properties belonging to Gabriel Rodriguez Aguirre, Eleno Aguirre, Doloras Contreras and Tony Bencomo.   In the weeks that followed, additional searches were conducted at other properties belonging to these defendants.  Fifty-one parcels of real estate were seized, and eventually forfeited in the civil forfeiture case United States v. Fifty-One Items of Real Property, CIV-92-1155-JC.  Two other civil forfeiture actions were filed, United States v. Item One: Approximately 247 Horses, etc., CIV 93-102 (JC) and United States v. Item One: The East Half..., CIV-95-0981-JC/WWD, each also naming a vast array of property taken from these defendants and their codefendants.  Eventually the defendants here were all adjudicated in default in those civil forfeiture cases, and judgments were entered in those cases forfeiting their interests in the named property.  Defendants do not in any way challenge those judicial forfeitures.  The items of personal property at issue here were seized during these searches, but were never named in any of the three civil forfeiture judgments, and apparently were never the subject of administrative forfeiture proceedings.
  	Since October 21, 1992, the defendants here have been constantly embroiled in litigation.  Their criminal cases resulted in two jury trials (the first one lasting six months and resulting in acquittals or a hung jury on every count), a direct appeal, and petitions for certiorari.  Gabriel Rodriquez-Aguirre and Eleno Aguirre filed §2255 petitions which were pending and active when the motion for return of property was filed, and which are now on appeal before this court.  Doloras Contreras’ case has been remanded and appealed twice.  She was resentenced just weeks ago.
	In the course of preparing for the evidentiary hearing in the §2255 proceedings, defendants obtained copies of the judgments in the civil forfeiture cases and began comparing the list of property forfeited with itemized lists of property from the search warrant returns,  the government’s “Non-Drug Evidence List, and other items defendants knew were present in their homes and other properties at the time of the search.   That is when they first discovered 127 items of personal property which had been seized from them were apparently never forfeited.
	Upon learning of these missing items, defendants’ counsel wrote a letter to AUSA Thomas English asking the government to return these items, since they would no longer be needed as evidence and the government’s statute of limitations for forfeiture had run, or to show how these items had been validly forfeited.  Mr. English refused, and told counsel she would probably be held in contempt if she filed a motion for return of property. 
	On April 20, 2000, defense counsel filed a motion for return of property, with a supporting  declaration from Gabriel Rodriguez-Aguirre (Docket # 1584, App.5). The motion was assigned to the same magistrate judge who was presiding over the pending §2255 proceedings. 
	The government moved to dismiss the Rule 41(e) motion (Docket # 1588, May 1, 2000, App. 21).  Defendants filed and served a response (Docket # 1592, docketed May 22), and defendants filed a reply to it.  (Docket # 1598).  Magistrate Judge Leslie C. Smith issued Findings and Recommendations (Docket # 1603, July 19, 2000, App. 27), denying the motion “based on lack of standing and laches.”   
	Appellants filed objections to the Magistrate Judge’s proposed findings (Docket # 1607, August 4, 2000, App. 32). 	On August 17, Judge Conroy entered an order summarily overruling Appellants’ objections (Docket # 1610, App. 45).  This appeal followed.
SUMMARY OF ARGUMENT
	The court below applied the wrong legal standards when it dismissed defendants’ Rule 41(e) Motions for Return of Property for lack of standing and laches.  Additionally, the court’s finding of fact that the defendants’ delay in filing the motion was “unexplained, unjustified and inexcusable” was clearly erroneous.

ARGUMENT

I.    	The district court erred in ruling that claimants failed to establish standing 
	
	The issue of a claimant’s standing to defend a forfeiture case or to move for return of seized property is a legal question reviewed de novo. United States v. 37.29 Pounds of Semi-Precious Stones, 7 F.3d 480, 483 (6th Cir.1993); United States v. $38,570 in U.S. Currency, 950 F.2d 1108, 1111 (5th Cir.1992).  
	The government has not disputed that these 127 items of personal property  were seized from defendants during the execution of the warrants for premises owned or possessed by them, nor has it submitted any evidence that these items were ever forfeited, administratively or judicially.  Instead it argues:
Assuming arguendo that the property defendants name was seized or even exists, defendants have failed to demonstrate standing to seek the return of property.  Defendants assert vague claim(s) to a vague list of property contained in Gabriel Aguirre’s declaration.  See e.g. number 24 in the declaration, which claims “miscellaneous furniture.”  In addition to being vague, the declaration baldly declares that the property was owned either by Gabriel Aguirre or his relatives.  The declaration fails to specify who is claiming what, and does not mention the extent of each individual’s ownership interest in the claimed property.

Government’s Motion to Dismiss pp. 4-5 (App. 24-25.)   The Magistrate Judge bought into this argument and took it a step further, holding that the defendants were required to submit proof of ownership along with their motion for return of property – and that defendants Gabriel Aguirre’s sworn declaration, stating that these items were all owned by one of these four defendants, and the fact that the property was seized during the execution of search warrants or seizure warrants for premises owned or occupied by them --  was not enough to give them standing to move for the return of property:  
Both an allegation of ownership and some evidence of ownership are required to establish standing sufficient to contest a civil forfeiture. See Torres v. $36,256.80 in U.S. Currency, 25 F.3d 1154, 1157-58 (2d Cir. 1994).
In this case, Defendants offer only a list of vaguely described property^1 contained in Gabriel Rodriguez-Aguirre’s Declaration Regarding Unforfeited Personal Property.  They offer no indicia of ownership, other than Gabriel Rodriguez-Aguirre’s unsupported declaration that either he or his relatives own the property. (Decl. at 2.)  A conclusory allegation of ownership in vaguely described property is insufficient to confer standing to asset a claim for the property.  

^1  The finding that the items were “vaguely described” is clearly erroneous.  Although the defendants did not know the VIN numbers for the vehicles, the vehicles were described by model, make, year and color, and other items which did not have VIN numbers or model numbers -- such as  (66) a mother pig and six piglets, the clothing listed at (9) - (18), and the furniture described in (19) - (23) -- were described as well as they could be, and were sufficiently specific to identify them in government inventory documents.

Magistrate Judge’s Proposed Findings and Recommended Disposition p. 3 paragraphs 4 & 5.  
A.	The lower court’s ruling defies the Tenth Circuit test for standing

	The Tenth Circuit’s test for standing is set out in Mount Evans Co. v. Madigan, 14 F.3d 1444, 1450-51 (10^th Cir. 1994):
"[T]he term 'standing' subsumes a blend of constitutional requirements and prudential considerations."  Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citing Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)).  Article III of the Constitution requires a plaintiff to show:  (1) he or she has personally suffered an injury in fact;  (2) the injury is fairly traceable to the challenged action of the defendant;  and (3) it is likely, not merely speculative, that the injury will be redressed by a favorable decision.  Beyond the constitutional requirements, a plaintiff must also satisfy the following set of prudential principles:  (1) the plaintiff generally must assert his or her own legal rights;  (2) the court must refrain from adjudicating "generalized grievances" most appropriately addressed by one of the other branches of government;  and (3) the plaintiff's complaint must fall within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.   We conduct a prudential standing analysis only after Article III standing has been established.   " 'Standing jurisprudence is a highly case-specific endeavor, turning on the precise allegations of the parties seeking relief'." 

Mount Evans Co. v. Madigan, 14 F.3d 1444, 1450-51 (10^th Cir. 1994) (internal citations omitted).	
	Applying the above principles, it is clear these defendants have standing to move for return of their property.  All four have alleged they “personally suffered an injury in fact” when they had property taken from them, and “the injury is fairly traceable to” the seizure of personal property during the execution of search warrants and seizure warrants for their homes or business properties.  Furthermore the injury would be redressed by a favorable decision, which would return the property, or its monetary equivalent, to them.  
	Turning to the “prudential principles,” these four defendants are asserting only their own legal rights.  Although Gabriel Rodriguez Aguirre supplied the only declaration submitted so far, that was because the Magistrate Judge nipped this return of property case in the bud, before the government even responded to the factual allegations, by dismissing it under F.R.Civ. P. Rule 12(b). Eleno Aguirre, Doloras Contreras and Tony Bancomo are each separately claiming only their own unforfeited property, and have always intended to submit declarations, live testimony, and other evidence of ownership when the case gets beyond the pleading stage and into the proof stage.  
	This is certainly no “generalized grievance” but the ongoing deprivation of particular items of private property, seized under process issued in the criminal case, and detained indefinitely without due process of law.  
	Clearly, this is the type  of injury Federal Rule of Criminal Procedure 41(e)^2 was designed to remedy, and thus this motion “fall[s] within the zone of interest to be protected or regulated by” Rule 41(e). 

^2  Federal Rule of Criminal Procedure 41(e) states:

A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion.

B.	The district court’s ruling violated Supreme Court  precedent
	The Supreme Court set the standard for dismissals for lack of standing in Warth v. Seldin, 422 U.S. 490 (1975), a case where the plaintiff’s standing was at issue.  Translated into claimant’s standing terms, that standard is: 
For  purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the [claim], and must construe the [claim] in favor of the [claimant]. At the same time, it is within the trial court's power to allow or to require the [claimant] to supply, by amendment to the [claim] or by affidavits, further particularized allegations of fact deemed supportive of [claimant’s] standing.  If, after this opportunity, the [claimant’s] standing does not adequately appear from all materials of record, the [claim] must be dismissed.

422 U.S. at 501-02 (1975).
	The court below did not apply this standard in dismissing the motion on standing grounds.  Instead of  “ accept[ing] as true all material allegations” in the motion for return of property, the court rejected the defendants’ allegations and declaration of ownership as being insufficient proof.  (“They offer no indicia of ownership, other than Gabriel Rodriguez-Aguirre’s unsupported declaration that either he or his relatives own the property.”)
	This ruling ignores established precedent.
C.	Seizure of property from someone is prima facie evidence of ownership

It is well settled that the Government may seize evidence for use in investigation and trial, but that it must return the property once the criminal proceedings have concluded, unless it is contraband or subject to forfeiture. A person aggrieved by the deprivation of property may file a motion under Rule 41(e) to request its return. 

United States v. Bien, 214 F.3d 408, 411 (3^rd Cir. 2000) (internal citations omitted).  In a postconviction Rule 41(e) proceeding, "a criminal defendant is presumed to have the right to the return of his property once it is no longer needed as evidence."  United States v. Mills, 991 F .2d 609, 612 (9th Cir.1993); United States v. Duncan, 918 F.2d 647, 654 (6th Cir.1990).  
	With two of these defendants’ §2255 motions now pending on appeal, the government is reaching the temporal limit of its ability to detain this property as evidence in the underlying criminal case.  The government has now exceeded its five year statute of limitations for forfeiting the property without perfecting a forfeiture, therefore, unless the government can show their statute of limitations period was tolled, the only remedy is return of any unforfeited property or its monetary equivalent.  Clymore v. United States, 164 F.3d 569, 574 (10^th Cir. 1999.) 	The government has not disputed defendants’ allegations that these items of property were seized from defendants homes and business properties during execution of search and seizure warrants in this criminal case, and the court must treat that allegation as true for purposes of the government’s  F.R.Civ.P. Rule 12(b) motion to dismiss (see Warth v. Seldin, 422 U.S. at 501). 
	 Here, as in the seminal case of United States v. Wright, 
[t]he Government asserts that appellants have an obligation to prove that they are entitled to the [property seized from them].  We do not believe, however, that the mere fact of seizure requires that entitlement be established anew. The seizure of property from someone is prima facie evidence of that person's entitlement, particularly when the seized property is money or negotiable instruments difficult to identify and trace. The whole thrust of the cases that we have cited is that when property is seized from a person, the court must return it to that person when it is no longer needed by the government.  The court is obligated to restore the status quo ante. Unless there are serious reasons (presented by the government or adverse claimants) to doubt a person's right to the property seized from him, he need not come forward with additional evidence of ownership.

United States v. Wright, 610 F.2d 930, 939 (D.C. Cir. 1979), citing Northern Pacific Co. v. Lewis, 162 U.S. 366, 372, 16 S. Ct. 831, 833, 40 L. Ed. 1002 (1896) ("possession is prima facie evidence of some kind of rightful ownership or title.")  
[A] claimant must have a colorable ownership, possessory or security interest in at least a portion of the defendant property. Article III's standing requirement is thereby satisfied because an owner or possessor of property that has been seized necessarily suffers an injury that can be redressed at least in part by the return of the seized property.  A claimant need not prove the merits of his underlying claim, but he must claim a facially colorable interest in the seized property.

United States v. $515,060, 152 F.3d 491, 497-98 (6^th Cir. 1998).  “There can be no doubt that [the owner of seized property] has Article III standing” to defend it.  United States v. $38,000, 816 F.2d 1538, 1544 (11^th Cir. 1987).	 However, “a claimant need not own the property in order to have standing to contest its forfeiture;  a lesser property interest, such as a possessory interest, is sufficient for standing.” Id.  
	Constructive possession of personal property seized from one’s premises is also sufficient to confer standing. The Sixth Circuit held in $515,060 that  
White had constructive possession of the currency in his own bedroom and such a possessory interest is constitutionally sufficient to confer standing in forfeiture actions.  Although he was not in actual possession of the currency at the time it was seized, his constructive possession of it confers standing on him in the context of the disclosure of facts surrounding the currency.  

152 F.3d at 500.  See also United States v. $260,242.00 U.S. Currency, 919 F.2d 686, 687 (11th Cir.1990);  $38,000.00, 816 F.2d at 1544; United States v. Twenty Cashier's Checks, 897 F.2d 1567, 1571 (11th Cir.1990).
D.	Federal courts have uniformly rejected the notion that a claimant must prove standing at the pleading stage 
	
At this preliminary juncture . . . the claimant need not prove the full merits of her underlying claim.   All that needs to be shown is a "facially colorable interest in the proceedings sufficient to satisfy the case-or-controversy requirement and 'prudential considerations defining and limiting the role of the court.' "

United States v. 116 Emerson St., 942 F.2d 74, 78 (1^st Cir. 1991) quoting United States v.  $321,470.00, United States Currency, 874 F.2d 298, 302 (5th Cir.1989) and United States v. One 18th Century Columbian Monstrance, 797 F.2d 1370, 1373 (1986), reh'g denied, 802 F.2d 837 (5th Cir.), cert. denied sub nom.  Newton v. United States, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1988).

The overwhelming majority of federal caselaw addressing the Article III standing issue indicates that a possessory interest is sufficient to confer standing on a forfeiture claimant.  The rationale is that the government's demand that claimants show a "legitimate source" for the purpose of establishing standing, improperly accelerates the claimant's ultimate burden.

United States v. $80,760, 781 F.Supp. 462, 467 n. 15 (N.D. Tex. 1991).  
	Requiring detailed proof of ownership at the pleading stage is undesirable for other reasons, as the Sixth Circuit explained:
[W]e decline to adopt any type of hard-and-fast requirement for the initial evidentiary showing necessary for standing.  The Government very often does not contest a claimant's standing, and a rule requiring claimants to support all claims with standing evidence would often involve unnecessary time and expense for the litigants as well as the court.  Although a claimant may assert an interest in a defendant property sufficient to confer standing, the Government is always free, as it was in this case, to challenge a claimant's factual allegations, develop information through interrogatories, and flush out would-be claimants with no real interest in a defendant property.  Article III requires only that a claimant allege, inter alia, a personal stake in the outcome of the controversy, i.e., an actual or threatened injury.

$515,060, 152 F.3d at 498-99 (citations omitted).	It is particularly wasteful of judicial resources to put claimants to such a heightened preliminary burden when court records and the government’s own allegations regarding the circumstances of the seizure and the nature of the claimant’s involvement with the property show that the claimant possesses a personal stake in the outcome of the controversy.   See e.g. $515,060, 152 F.3d at 499.  Even in the Fifth Circuit, where “[o]rdinarily . . . a claimant is required to submit some additional evidence of ownership along with his claim in order to establish standing to contest the forfeiture,”  United States v. $38,570, 950 F.2d 1108, 1113 (5^th Cir. 1992), the court held:
In this case, however, Flores need not have supplemented his claim with additional evidence, because the government had admitted Flores' relationship to the currency in its complaint.   We recognize that ownership can be evidenced in a variety of ways.   Courts generally look to indicia of dominion and control such as possession, title, and financial stake.   Here, the government admitted, and the district court explicitly found, facts indicating Flores' involvement with the currency. The district court noted Flores' presence at the scene of the seizure and the circumstances surrounding Flores' alleged relationship to the currency, and the government's complaint clearly specified that Flores exercised some form of dominion over the currency.   While Flores' claim itself did not provide evidence of his ownership interest, we hold that in this case, Flores' claim of ownership, coupled with the government's allegations of Flores' involvement with the seized res, are sufficient to establish standing.

	Likewise in this case, there is sufficient corroborating evidence that defendants had standing to relieve them from having to supply additional “proof” of ownership at the pleading stage.  In their motion for return of property and supporting declaration, defendants alleged that this property was seized from them during the execution of search and seizure warrants in this case, and that many of these items appeared on itemized returns from the search warrants.  (Motion for Return of Property p. 2 ¶ 3, Declaration p. 9 ¶¶ 5-8.)  The government’s allegations that these defendants owned or exercised dominion and control over the parcels of real estate from which these items were seized appeared throughout the affidavits supporting the search warrants, seizure warrants, and civil forfeiture complaints regarding the real estate, and the government’s own witnesses testified in the criminal trials about these and other assets seized from the defendants.  Even when the real estate was held in the name of a straw owner, the government’s theory at trial was that these assets -- or the real estate from which they were seized -- belonged to Gabriel Rodriguez-Aguirre or one of these defendants.  No one else came forward to claim the real estate in the forfeiture cases, and the real properties were forfeited on the theory they belonged to these defendants.  Under the circumstances, the government could not, with a straight face, deny that these defendants had a facially colorable interest in this property.

II. 	The court below applied the wrong legal standard for laches

	The court below held that the defendants’ claims were barred by laches:

Plaintiffs’ argument that laches bars the Rule 41(e) is equally well-taken.  Rule 41(e) is an equitable remedy available only to a defendant who can show irreparable harm and an inadequate remedy at law.  See Clymore v. United States, 164 F.3d 569, 571 (10^th Cir. 1999).  “[H]e who seeks equity must do equity.”  Herald Co. v. Seawell, 472 F.2d 1081, 1099 (10^th Cir. 1972).  Defendants waited for over seven and a half years before filing their Rule 41(e) Motion.  Defendants’ seek to excuse this inordinate delay by pointing out that they were engaged in litigation and that the quantity of property seized was extensive.  The fact that they were engaged in litigation is unpersuasive.  Defendants were represented by counsel during the entire relevant period and filed challenges in the civil forfeiture cases.  Gabriel Rodriguez Aguirre and Eleno Rodriguez Aguirre’s criminal cases have been finalized since 1997.  The amount of property seized does not explain or excuse a seven year delay.  The protracted delay in the filing of Defendants Rule 41(e) Motion is unexplained, unjustified and inexcusable.  Under these circumstances, Defendants’ Rule 41(e) Motion should be denied based on the equitable doctrine of laches.

Magistrate Judge’s Proposed Findings p. 4.  	The court’s legal conclusion that the claims were barred by laches was based solely on a finding of “unexplained, unjustified and inexcusable” delay – the court made no findings that the government was prejudiced by the delay, and did not mention any requirement that the government show prejudice.
A.	The court below applied the wrong legal standard for laches
	A district court’s interpretation of the law is reviewed de novo.  O’Connor v. R.F. Lafferty & Co., Inc., 965 F.2d 893, 901 (10^th Cir. 1992).
	The Tenth Circuit’s test for laches involves two prongs:    
Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another.  In order to prove the affirmative defense of laches, the [party asserting laches] must demonstrate  that there has been an unreasonable delay in asserting the claim and that [it] was materially prejudiced by that delay.

Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997) (internal citations and quote marks omitted).  The court below was either not aware of, or ignored, the requirement that material prejudice be shown.
	There is no authority for the proposition that, at some point, delay is presumptively prejudicial and the court can dispense with the prejudice requirement.  If there were such a point, we have not yet reached that point under Tenth Circuit authority.  In United States v. Grover, 119 F.3d 850, 851 (10^th Cir. 1997), the Rule 41(e) motion was filed eight years after the defendant’s indictment yet there was no mention of a statute of limitations or laches impediment.
	In this case, the government did not make any specific factual allegations that would support a finding of prejudice.  They only claimed:
The prejudice to the government caused by a seven and one-half year delay is obvious.  Memories fade, forfeited property has been disposed of and retrieval of records will be unnecessarily difficult and potentially impossible in some instances if records have been destroyed.

Reply to Defendants’ Response  to United States Motion to Dismiss, p. 6.  These vague and conclusory claims would be present in any case involving several years of delay, and are not enough to support a finding of material prejudice.
	These same excuses have been rejected as showing prejudice, even when established with concrete facts rather than conclusory claims.    
	The fact that the property has been disposed of has been held not to moot a Rule 41(e) motion nor to prevent claimant from obtaining relief. United States v. Clymore, 217 F.3d 370, 377 (5^th Cir. 2000) (“The government argues in the alternative that it was prejudiced by Clymore's delay because the remedy he seeks--the return of his property--is impossible, the property having already been sold.  This argument is unavailing as Clymore has persistently stated that he would accept damages in lieu of the truck.”).  See also United States v. Bien, 214 F.3d 408, 411 (3^rd Cir. 2000); United States v. Chambers, 192 F.3d 374, 376-77 (3^rd Cir. 1999) (the argument that a Rule 41(e) motion is moot if the government no longer has the property “has been rejected uniformly by the Courts of Appeals”);  Mora v. United States, 955 F.2d 156, 158 (2^nd Cir. 1992) (“In light of the government’s own regulation [41 CFR §128-50.101 (1991), requiring federal agencies to maintain inventory records of seized property] it may not so easily brush aside Mora’s request for the return of his property because it cannot be located.”)
	Courts are also unsympathetic to the government’s argument that it has lost or destroyed its files and other records. “Clymore counters that any prejudice resulting from the destruction of the forfeiture file in this case was of the 
government's own making, and we agree.”  217 F.3d at 377.  
	The government’s makes the conclusory statement that they are prejudiced because “memories fade.”  It is no doubt true that the agents can no longer remember what they did with these items, from among the thousands of items of property seized during the 51 raids conducted in this case, but that would have been true a year after the seizure.  In light of the Department of Justice regulation cited above, requiring agencies to maintain inventory records of seized property, there is no excuse for fading memories.  
	Thus, there is no factual basis on which the court could have found that the government was prejudiced by the delay.
B.	The court’s finding that defendants’ delay was “unexplained, unjustified and inexcusable” was clearly erroneous

	Findings of fact are reviewed for clear error.  O’Connor v. R.F. Lafferty & Co., Inc., 965 F.2d 893, 901 (10^th Cir. 1992).
	The lower court’s finding that the defendants’ delay of seven years after seizure of the property to file a motion for return of property was “unexplained, unjustified and inexcusable” ignores the explanations set out in pages 4 and 5 of Defendants’ Reply [   ].  There, defendants explained that, ever since the seizure of their property they been involved in protracted litigation – three civil forfeiture cases, and a criminal prosecution involving two extended jury trials, a direct appeal, and petitions for certiorari.  Two of the defendants have §2255 motions pending in this court, and another, who was recently resentenced, still has time remaining on a potential §2255.  They further explained:
These separate civil forfeiture cases each involved an extensive laundry list of seized property, and to a casual observer, or even someone who scrutinized the pleadings, it was obvious that the government had named in these forfeiture actions a staggering list of seized property, but it is not readily apparent that not every item which was seized and recorded in the returns on the search warrants was on one of the lists of property being forfeited.  

As defendants argued in their Objections to the Magistrate Judge’s Proposed Findings, 
[i]t took days of meticulously comparing lists of property seized, and items that defendants knew to have been on the properties at the time of the raids, against the lists of property forfeited in these three cases to find these missing items we are claiming here.  Because the defendants had been adjudicated in default early in the proceedings in these three civil forfeiture cases, they were not served with all of the pleadings in those cases, and had to get the lists of forfeited properties from the clerk to begin this comparison.

Objections, p. 10. [App. 41].   
	Furthermore, as we stated earlier, Gabriel and Eleno Aguirre have §2255 motions pending and defendant Doloras Contreras, who was resentenced only weeks ago, has time remaining on her statute of limitations for a §2255 motion. 
	The pendency of criminal proceedings for all of these years has a separate legal significance: until the criminal prosecution is over, the government has a right to detain evidence that may be needed on retrial of the criminal case.  Furthermore, until all statutes of limitations have run on potential civil forfeiture actions, the government’s ability to detain property has been virtually uncontestable.  The district court lacks jurisdiction to hear a Rule 41(e) motion as long as there are pending administrative or judicial forfeiture proceedings against the property. United States v. Akers, 215 F.3d 1089, 1106-07 (10^th Cir. 2000) (“This court has held that a forfeiture proceeding provides a defendant with an adequate remedy at law for resolving a claim to seized property.”  Rule 41(e) is an equitable remedy, and therefore unavailable if there is an adequate remedy at law. ) When a claimant files a Rule 41(e) motion before the government’s statute of limitations runs, the court invariably orders the government to file a forfeiture action or return the property.  Once the government files a forfeiture action, the Rule 41(e) motion must be dismissed.  Akers, supra.  Thus, until the government’s five year statute of limitations has expired, a Rule 41(e) motion is an ineffectual waste of time and judicial resources.  

	Thus, defendants’ delay in filing their motion for return of property was justified.	
Conclusion
	For the foregoing reasons, the judgment below must be reversed and the case remanded for evidentiary hearings on the merits of defendants’ Rule 41(e) motion.
Request for Oral Argument
	The defendants hereby request oral argument if it would be of assistance to the court.
							Respectfully submitted,

							Brenda Grantland, Esq.

Certificate of Compliance with Fed.R.App.P. 32(a)(7)(C)
	I hereby certify that this brief is set in Times New Roman 14 point type and that it consists of 5606 words.
							Brenda Grantland, Esq.