00-2337
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA		|
							|
			Plaintiff/Appellee,	|
							|

v.							|
							|
GABRIEL RODRIGUEZ-AGUIRRE,	|
ELENO AGUIRRE,  DOLORAS 		|
CONTRERAS AND TONY BANCOMO	|
							|
			Defendants/Appellants.	|

On Appeal from the United States District Court 
for the District of New Mexico

The Honorable John Edward Conroy, District Judge
D.C. No. 92-0486 JC

			APPELLANTS’ REPLY BRIEF

		
							Respectfully submitted,

							Brenda Grantland, Esq.
							20 Sunnyside Suite A-204
							Mill Valley, CA 94941
							(415) 380-9108
				
							Counsel for Appellants

TABLE OF CONTENTS

Table of Authorities	iii

Summary of Argument	1

ARGUMENT	2
I.  The government’s arguments for a heightened proof-of-standing requirement at the pleading stage in Rule 41(e) cases is 
unprecedented 	2
A.     Availability of Rule 41(e) remedy	2
B. 	The government’s theory that defendants were required to “prove” standing at the pleading stage 	3
1.  Standard of review for F.R.Civ.P. Rule 12(b) motions	3
2.  Gabriel Aguirre’s “attempt” to assert third party claims	5
3.    The presumption of ownership from possession	7
II.      The government’s laches defense fails on the prejudice element	8
III. 	What is the statute of limitations for Rule 41(e) motions?	10
A.  Our theory: There is no statute of limitations for 41(e) motions	10
B.  The government’s theory:  Rule 41(e) motions are governed by the statute of limitations in §28 U.S.C. §2401(a)	14

Conclusion	20

Certificate of service	21

Certificate of Compliance with Fed.R.App.P. 32(a)(7)(C)	22

Cases

Alexander v. Perkin Elmer Corp., 729 F.2d 576 (8^th Cir. 1984)	16

Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)	15, 17

Boero v. Drug Enforcement Administration, 111 F.3d 301 (2^nd Cir. 1997)	14, 15

Bowling v. Founders Title Co., 773 F.2d 1175 (11^th Cir. 1985), cert. denied. 475 U.S. 1109 (1986)	16

Clymore v. United States, 164 F.3d 569 (10^th Cir. 1999)	3, 11

Clymore v. United States, 217 F.3d 370 (5^th Cir. 2000)	9

Davis v. United States, 192 F.3d 951 (10^th Cir. 1999)	4

Floyd v. United States, 860 F.2d 999, 1002-03 (10th Cir.1988)	2

Franklin Saving Corporation v. United States, 180 F.3d 1124 (10^th Cir. 1999)	4

Hutchinson v. Pfeil, 105 F.3d 562 (10^th Cir. 1997)	9

Ikelionwu v. United States, 150 F.3d 233 (2^nd Cir. 1998)	9, 15

Leon v. Murphy, 988 F.2d 303 (2d Cir.1993)	15

Misco Leasing, Inc. v. Vaughn, 450 F.2d 257 (10^th Cir. 1971)	12

Onwubiko v. United States, 969 F.2d 1392 (2^nd Cir. 1992)	2

Polanco v. DEA, 158 F.3d 647 (2^nd Cir. 1998)	16, 17

Rodd v. Region Constr. Co., 783 F.2d 89 (7^th Cir. 1986)	12
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)	4

United States v. A Parcel of Land, 507 U.S. 111, 113 S.Ct. 1126, 122 L.Ed.2d 469 (1993)	12

United States v. Akers, 215 F.3d 1089 (10^th Cir. 2000)	18

United States v. Chambers, 192 F.3d 374 (3^rd Cir. 1999)	18

United States v. Clark, 84 F.3d 378 (10^th Cir. 1996)	3

United States v. Estep, 760 F.2d 1060 (10th Cir.1985)	7

United States v. Giovanelli, 998 F.2d 116 (2^nd Cir. 1993)	10

United States v. Grover, 119 F.3d 850 (10^th Cir. 1997)	11, 12

United States v. Grundy, 7 U.S.  (3 Cranch) 337, 2 L.Ed. 459 (1806)	12

United States v. Maez, 915 F.2d 1466 (10^th Cir. 1990)	2, 3, 7

United States v. Martinson, 809 F.2d 1364 (9^th Cir. 1987)	14

United States v. One Ford Coach, 307 U.S. 219 (1939)	9

United States v. One Toshiba Television, 213 F.3d 147 (3^rd Cir. 2000)	12

United States v. Van Cauwenberghe, 934 F.2d 1048 (9^th Cir. 1991)	18

United States v. Wilson, 540 F.2d 1100 (D.C.Cir.1976)	14

VTA v. Airco, 597 F.2d 220 (10^th Cir. 1979)	11

Statutes

21 U.S.C. §881(c)	18

28 U.S.C. § 2401(a)	1, 13, 14, 19

28 U.S.C. §2462	18

Other authorities

F.R.Civ.P. Rule 12(b)	3, 7

F.R.Civ.P. Rule 60(b)	12

F.R.Crim.P. Rule 41(e)	1-3, 5, 6, 8, 10, 13, 14, 18, 19

	In its opposition brief the government attempts to redefine laches to relieve itself of the requirement that it show actual prejudice from the delay – which, in this circuit and elsewhere, is an essential element of the defense of laches.  On the issue of standing, the government constructs unprecedented requirements for proof of “standing” at the pleading stage on a Rule 41(e) motion.  Neither argument is a good faith argument for the extension of the law, nor is it the law of this circuit as the government suggests.   
	The government also raises a statute of limitations argument, which was raised but not ruled upon in the decision below.  There is a split of authority on the statute of limitations applicable to Rule 41(e), and the Tenth Circuit has not yet ruled on this precise issue.  Some authorities seems to indicate that, when the forfeiture is void or there is no forfeiture at all, there is no statute of limitations for a Rule 41(e) motion.  Even if the court follows the Second Circuit in applying the six year statute of limitations of 28 U.S.C. § 2401(a) to Rule 41(e) motions, it will have to rethink the accrual rules adopted by the Second Circuit, because they defy Supreme Court precedent and black letter law. 

VI.	 

	The government boldly asserts that “[a] property owner . . . has no right to return of property under Rule 41(e) after conviction,” Opp. p. 11, citing Onwubiko v. United States, 969 F.2d 1392, 1396-97 (2^nd Cir. 1992).  Not only does this misstate the holding in Onwubiko -- which holds that a post-conviction motion for return of property should be filed as a separate civil action (but allows a pro se Rule 41(e) motion to be so construed) -- but it ignores the Tenth Circuit precedent cited in Onwubiko as stating a contrary position.
After the case is concluded, a property owner may have other rights under statutory or common law for return of property wrongfully seized, but he has no such right under rule 41(e) after conviction. . . . But cf. Floyd v. United States, 860 F.2d 999, 1002-03, 1006-07 (10th Cir.1988) (rule 41(e) motions are governed by equitable principles, and do not depend on the existence of a criminal proceeding).	
Onwubiko, 969 F.2d at 1396-97.  
	Unlike the Second Circuit, which has limited the availability of Rule 41(e), the Tenth Circuit is generous with the remedy.  Another Tenth Circuit case cited by the government, United States v. Maez, 915 F.2d 1466 (10^th Cir. 1990) states the rationale: “[p]roceedings surrounding the motion for return of property seized in a criminal case are civil in nature, but the interests of judicial efficiency permit a criminal trial judge to rule on the motion.”  A number of Tenth Circuit cases – including Maez, United States v. Clark, 84 F.3d 378, 381 (10^th Cir. 1996) and Clymore v. United States, 164 F.3d 569 (10^th Cir. 1999) -- involved Rule 41(e) motions filed in the criminal court after conviction.  Here, in the interests of judicial economy, defendants filed the motion as a Rule 41(e) motion rather than as a separate civil action because two of these defendants had §2255 proceedings pending before the district court and the factual issues overlapped significantly. 

	It is clear from the case law nationwide that, whether the court prefers the remedy of Rule 41(e) or a separate civil equitable action, the procedings are governed by civil procedural rules.  United States v. Clark, 84 F.3d 378, 381 (10^th Cir. 1996) (“[w]here criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint”); United States v. Maez, 915 F.2d at 1468 (“[p]roceedings surrounding the motion for return of property seized in a criminal case are civil in nature.”)
	Here, instead of filing an answer to the Rule 41(e) motion, the government filed a motion to dismiss and the court granted it.  Motions to dismiss are governed by F.R.Civ.P. Rule 12(b). 
When this court reviews a dismissal under Rule 12(b), however, it "must presume that the general allegations in the complaint encompass the specific facts necessary to support those allegations."  Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 1017, 140 L.Ed.2d 210 (1998).  For the sole purpose of determining jurisdiction at this preliminary stage of the lawsuit, this court must assume that the allegations in Plaintiffs' complaint and the facts underlying those allegations are true. 
Davis v. United States, 192 F.3d 951, 962 n. 1 (10^th Cir. 1999).  
	“At the Rule 12(b) stage, this court cannot simply disbelieve plaintiffs' factual allegations. . . as the Government urges.”  Franklin Saving Corporation v. United States, 180 F.3d 1124, 1134 (10^th Cir. 1999).
	Ignoring this rule, the government argues that defendants are required to “prove” standing at the pleading stage, and that the sworn allegations in Gabriel Aguirre’s declaration -- that he and/or the three other codefendants here “owned” the personal property seized from their residences and business properties during the execution of seizure warrants for 51 parcels – was not enough to “prove” standing.  See Opp. pp. 12-21.  The government couches this imagined requirement as a “burden of proof” imposed upon claimant at the pleading stage.  Opp. p. 21.
	In this circuit, there is no requirement that a defendant submit a declaration or any supporting documentation at the time of filing a Rule 41(e) motion in order to establish standing.   Counsel submitted the declaration by Gabriel Aguirre with the Rule 41(e) motion, only as a precaution because the prosecutors in this case have repeatedly “warned” her that she could be held in contempt if she filed a motion for return of property on behalf of the Aguirres, citing the February 25, 1999 order^1 from Judge Black in the related civil forfeiture case United States v. Fifty-One Items, U.S.Dist.Ct., D. N.Mex #92-1155.  

^1  The government has included a copy of that order in the Addendum to Answer Brief.

	The government also complains that only Gabriel Aguirre submitted a declaration, and that his declaration purported to support the claims of the three other defendants who joined with him in the Rule 41(e) motion.  For example, on page 9 of its Opposition, the government states:
Three of the defendants, Eleno Aguirre, Doloras Contreras and Tony Bencomo apparently lent only their name to the motion^2 [for return of property] because none of them provided any indication of what interest, if any, they have in the list of items.

^2  That is a false assumption.  Undersigned counsel was already representing Gabriel and Eleno Aguirre in their §2255 proceedings (which are currently pending in this Court) when they asked her to file a Rule 41(e) motion.  Gabriel Aguirre told his daughter, Doloras Contreras, and his nephew, Tony Bencomo, about it, and they  contacted counsel and asked her to move for return of their unforfeited property at the same time.  All four signed retainer agreements for this case, and all four names were on the Rule 41(e) motion as parties.

	It was enough that all four defendants alleged in the Rule 41(e) motion that they were the owners of the items of personal property listed in the motion.  There is no requirement that Rule 41(e) motions be verified.  The fact that defendants submitted a declaration in support of the motion does not change matters.  In the analogous opposite situation of a complaint for forfeiture in rem – which by statute must be verified – the affiant who verifies the complaint does not purport to know all of the facts alleged in the complaint from his own personal knowledge; hearsay is widely used to report the claims of others.  It would be ridiculous to hold Rule 41(e) motions, which need not be verified, to a higher standard than verified complaints for forfeiture in rem. 
	Furthermore, this is not a situation where one person asserts a claim on behalf of another person who is not a party, as the government suggests in its Opposition at pages 19 and 21. All four of these defendants are parties to this motion.  As they stated before, defendants would all have been submitting declarations, answering discovery, and testifying if they had been allowed to progress beyond the pleading stage.  
		
	The government states on page 18 of its Opposition: 
Defendants argue that they have standing because the seizure of property from a person or their residence is prima facie evidence of a person’s ownership, title, or possessory interest and is sufficient to confer standing. (Appellants’ Br. at 12-13).  This argument is spurious.  As demonstrated above, defendants failed to prove that the claimed property was seized from them or their residence(s).  
Rather it is the government’s argument that is spurious.  The government neglects to mention that United States v. Maez, one of the few Tenth Circuit cases cited by the government, adopts the presumption.
We have previously held that " '[t]he seizure of property from someone is prima facie evidence of that person's entitlement, particularly when the seized property is money....' "  United States v. Estep, 760 F.2d 1060, 1064 (10th Cir.1985), quoting Wright, 610 F.2d at 939 (emphasis in original).  An adverse claimant may rebut by either proving ownership by positive identification or proving that the claimant in possession holds the money unlawfully.  Estep, 760 F.2d at 1064.   	
915 F.2d at 1468.
	As we indicated earlier, for purposes of a Rule 12(b) motion to dismiss, the court must presume the truth of the allegations in the challenged pleading.  Paragraphs 1 and 3 of the defendants’ Motion for Return of Property alleges that the listed items were seized during execution of warrants in this criminal case, and some “appeared on itemized returns on the search warrants.”  Rule 41(e) motion ¶ 3.  Paragraphs 5 through 8 of Gabriel Aguirre’s declaration alleges that some listed items were seized during execution of seizure warrants for the real properties, and other listed items were seized from storage units belonging to these defendants.  Those are sufficient allegations to establish that these items of personal property were seized from these defendants. 

 	The government admits in its Opposition that the defense of laches requires “material prejudice to the defendant as the result of the delay.”  Opp. at 23.   It then argues that prejudice could be presumed:
It is true that the district court did not make a specific finding that the United States was materially prejudiced by defendants’ delay.  The United States urged that the prejudice to the government caused by a seven and one-half year delay was 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.

Opp. at 24.  If the mere recital of such speculative possibilities of prejudice was enough, then the prejudice requirement would be nonexistent.  
	The government is fond of citing Second and Fifth Circuit precedents on other issues in this case, but somehow missed these precedents on laches:   “A  party asserting the defense of laches must establish that . . . [it] was prejudiced by the delay.” Ikelionwu v. United States, 150 F.3d 233, 237-38 (2^nd Cir. 1998) (emphasis added). “Absent a showing of prejudice, laches does not apply.”  Clymore v. United States, 217 F.3d 370, 377 (5^th Cir. 2000)(hereafter cited as Clymore II”) (emphasis added).  Furthermore, it ignored Tenth Circuit precedent: “Laches . . . is not mere delay, but delay that works a disadvantage to another.  In order to prove the affirmative defense of laches, the [government] 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 (10^th Cir. 1997) (emphasis added).
	Furthermore, the government’s claim, that defendants delayed unreasonably when they waited until after the government’s statute of limitations for forfeiture had run before filing their Rule 41(e) motion, has been rejected by other courts:
Turning to the equitable considerations upon which the district court based its denial of the motion, 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. . . .  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 (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.

United States v. Giovanelli, 998 F.2d 116, 119 (2^nd Cir. 1993).

	Although the district court did not rule on the government’s argument that defendants’ Rule 41(e) motion was barred by the statute of limitations, the government argues that this Court should address that argument, since it “may affirm the district court’s decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.”  Opp. at 27.
	We disagree that this Court could affirm the judgment below on statute of limitations grounds, there being no factual record establishing when the statute of limitations would have accrued – if there is a statute of limitations for Rule 41(e) motions – but this Court should address the statute of limitations issue because the court  below will need standards to apply on remand.
A.	 
	Because the Rule 41(e) motion was dismissed prematurely, no factual record was established.  We do not know whether the government “administratively forfeited” these items without providing notice to defendants, or whether they were never forfeited at all. 
	As defendants argued below in their Reply to the Motion to Dismiss^3 –  in this  circuit, administrative forfeitures obtained without constitutionally adequate notice are void, a nullity.^4 Clymore v. United States, 164 F.3d 569, 574 (10^th Cir. 1999) (“our circuit precedent ... holds that a forfeiture accomplished without adequate notice is void and must be vacated.”)  Under Tenth Circuit precedent, a void judgment may be attacked at any time.  VTA v. Airco, 597 F.2d 220, 224-225 (10^th Cir. 1979). 

^3  Defendants’ Reply to Motion to Dismiss was not included in Appellants’ Appendix.

^4  This is in contrast with the Second Circuit (which the government prefers to cite) which holds administrative forfeitures achieved without constitutionally adequate notice and opportunity to be heard are voidable, rather than void.

	Certainly the government will fare no better if it turns out that it failed to conduct any forfeiture proceedings at all against this property.  In United States v. Grover, 119 F.3d 850 (10^th Cir. 1997), the Tenth Circuit considered what would happen if property is seized but no civil forfeiture action was ever instituted against it, and the government’s statute of limitations has passed:^5 

^5  Grover filed his Rule 41(e) motion eight years after his indictment, yet there was no mention of any statute of limitations applicable to his Rule 41(e) motion.

Mr. Grover argues that he only surrendered possession of the property, and not ownership, and that it was the government's obligation to complete the transfer of ownership by instituting a civil forfeiture.  Because the limitations period has run, Mr. Grover contends that the government may no longer institute a civil forfeiture, and therefore, legal ownership of the property was never transferred to the government.  We agree with Mr. Grover that "nothing vests in the government until some legal step shall be taken," United States v. A Parcel of Land, 507 U.S. 111, 125, 113 S.Ct. 1126, 1135, 122 L.Ed.2d 469 (1993) (quoting United States v. Grundy, 7 U.S.  (3 Cranch) 337, 350-51, 2 L.Ed. 459 (1806)), and that until the government obtains a judgment of forfeiture, someone else owns the property and may assert defenses unless waived.  A Parcel of Land, 507 U.S. at 127, 113 S.Ct. at 1135.   We also agree with Mr. Grover that in this case  no forfeiture has yet taken place.

United States v. Grover, 119 F.3d at 852. 
	In a similar situation, the Third Circuit held there was no time limit for instituting proceedings to overturn a void judgment:
In light of our ruling that the judgment against McGlory in the electronic equipment forfeiture is void, however, no passage of time can transmute a nullity into a binding judgment, and hence there is no time limit for such a motion. . . . [N]early overwhelming authority exists for the proposition that there are no time limits with regards to a challenge to a void judgment because of its status as a nullity. . . .

United States v. One Toshiba Television, 213 F.3d 147, 157 (3^rd Cir. 2000)(holding there is no time limit, and laches does not apply, to a F.R.Civ.P. Rule 60(b) motion to vacate a void judicial forfeiture judgment), citing Misco Leasing, Inc. v. Vaughn, 450 F.2d 257, 260 (10^th Cir. 1971), and quoting Rodd v. Region Constr. Co., 783 F.2d 89, 91 (7^th Cir. 1986) (“the reasonable time criterion of Rule 60(b) as it relates to void judgments, means no time limit because a void judgment is no judgment at all.”)
	Another reason why the Second Circuit’s application of the 6 year statute of limitations of §2401(a) to Rule 41(e) motions may not apply in the Tenth Circuit are conceptual differences between the two circuits on the nature of administrative forfeitures conducted without valid notice, and the nature of the Rule 41(e) remedy.
As we have already indicated, the Second Circuit treats administrative declarations of forfeiture, obtained without notice to the property owner, as voidable, rather than void; and it holds that Rule 41(e) is not available to criminal defendants after conviction, and requires the defendant to file a separate civil action to obtain return of property.   Filing a separate civil action implicates the civil statute of limitations.  
	In contrast, in other circuits including the Tenth Circuit, the criminal court retains continuing jurisdiction to hear Rule 41(e) motions even after conviction, as part of its ancillary duties in the criminal case:
[W]hen the property in question is no longer needed for evidentiary purposes, either because trial is complete, the defendant has pleaded guilty, or, as here, the government has abandoned its investigation, the burden of proof changes.  The person from whom the property is seized is presumed to have a right to its return, and the government has the burden of demonstrating that it has a legitimate reason to retain the property.   In such a case, the legality of the search and seizure is no longer an issue;  even if the seizure was lawful the government must justify its continued possession of the property by demonstrating that it is contraband or subject to forfeiture.  A district court has both the jurisdiction and the duty to return the contested property "once the government's need for it has ended."   

United States v. Martinson, 809 F.2d 1364, 1369-70 (9^th Cir. 1987) (internal citations omitted), quoting United States v. Wilson, 540 F.2d 1100, 1103-04 (D.C.Cir.1976) (the existence of civil remedies does not eliminate the criminal court's duty and jurisdiction to return property after the government's need for it ends).
	Thus, since a post-conviction Rule 41(e) motion is an ancillary proceeding growing out of the criminal court’s continuing jurisdiction, there is no new filing to trigger a statute of limitations, and the six year statute of limitations for civil suits, set out at 28 U.S.C. §2401(a), does not apply.

	In its Motion to Dismiss the government argued that defendants’ statute of limitations for bringing a motion for return of property is the six year statute of limitations of 28 U.S.C. §2401(a).  The government does not point to any Tenth Circuit or Supreme Court authority to support this proposition, but relies only on dicta in two Second Circuit cases – Boero v. Drug Enforcement Administration, 111 F.3d 301 (2^nd Cir. 1997) and Ikelionwu v. United States, 150 F.3d 233 (2^nd Cir. 1998). 
	Neither of these Second Circuit cases decided when the defendant’s statute of limitations would accrue.  The government argues that a defendant’s statute of limitations starts to run when the property is seized -- a proposition which was rejected in a subsequent Second Circuit case:
Polanco's cause of action accrued when he discovered or had reason to discover that his property had been forfeited without sufficient notice.  See Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).  The district court assumed that the cause of action accrued when the currency was seized on April 4, 1990.  But the specific constitutional violation alleged--the permanent deprivation of Polanco's property without notice--did not occur until sometime later, when the property was forfeited.  See Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, ----, 118 S.Ct. 542, 549, 139 L.Ed.2d 553 (1997) (cause of action accrues when plaintiff has a "complete and present" cause of action and "can file suit and obtain relief") (citation and quotation marks omitted).  Accordingly, this action accrued at the earliest of the following dates:

(1)  at the close of the forfeiture proceedings, however soon after the seizure;  or

(2) if no forfeiture proceedings were conducted, at the end of the five-year limitations period during which the government is permitted to bring a forfeiture action, see Boero, 111 F.3d at 305, at which time the claimant--without other notice--had reason to know that the forfeiture proceedings had begun (or that the property was being held) without due process.

Polanco v. DEA, 158 F.3d 647, 654 (2^nd Cir. 1998).
	As defendants will show, this test for accrual is problematic for several reasons.  First, it piggybacks a defendants’ statute of limitations for return of property onto the government’s statute of limitations for forfeiture.  Since the government’s statute of limitations for forfeiture accrues when the government discovers the offense – a fact known only to the government – the defendant’s cause of action for recovery of his seized property would accrue five years from some unknown and unknowable date.   Certainly by the time the defendant is arrested the government discovered the offense, but it could have occurred much earlier.  Computing when the defendant’s statute of limitations runs would be impossible.  
	Secondly,  Polanco is internally inconsistent and defies accrual rules to the extent it suggests that the defendant’s statute of limitations under Rule 41(e) could accrue at the time of an administrative forfeiture which is conducted without notice to the defendant.  The black letter law for accrual of federal claims is that “the statute of limitations begins to run when a plaintiff knows or should know of the injury.”  Bowling v. Founders Title Co., 773 F.2d 1175, 1178 (11^th Cir. 1985), cert. denied. 475 U.S. 1109 (1986); Alexander v. Perkin Elmer Corp., 729 F.2d 576 (8^th Cir. 1984).   Polanco mentions that requirement – “Polanco’s cause of action accrued when he discovered or had reason to discover that his property had been forfeited without sufficient notice”^6 – but then suggests in its test that a Rule 41(e) cause of action could accrue “at the close of the forfeiture proceedings, however soon after the seizure.”  Id.  Since the court in Polanco could not determine “whether or when forfeiture proceedings took place,” (Id.) then apparently Polanco still had not discovered that his property had been forfeited without notice. If the government revealed on remand that it had secretly conducted administrative forfeiture proceedings without notice to Polanco, would those secret proceedings have triggered accrual of Polanco’s cause of action under Rule 41(e)?  

^6  Polanco, 158 F.3d at 654 (emphasis added).

	In Bay Area Laundry & Dry Cleaning v. Ferbar Corp., 522 U.S. 192 (1997) the Supreme Court explained that a cause of action does not accrue for statute of limitations purposes until the plaintiff has the unrestricted right to sue on the claim.  
[T]he standard rule [is] that the limitations period commences when the plaintiff has "a complete and present cause of action."  Rawlings v. Ray, 312 U.S. at 98; see also Clark v. Iowa City, 20 Wall. 583, 589 (1875) ("All statutes of limitation begin to run when the right of action is complete . . . .").  Unless Congress has told us otherwise in the legislation at issue, a cause of action does not become "complete and present" for limitations purposes until the plaintiff can file suit and obtain relief.

Bay Area Laundry, 522 U.S. at 201.  
	From the time the government seizes property until the time for filing a forfeiture action against the seized property is exhausted, the property owner does not enjoy a “complete and present cause of action” to sue for its return.   Federal forfeiture statutes include provisions that bar replevin actions to obtain return of  seized property.  See 21 U.S.C. §881(c) -- the forfeiture statute used here.  Furthermore, the courts, including the Tenth Circuit, have held that Rule 41(e) is an equitable remedy, unavailable if the property owner has an adequate remedy at law - i.e. a separate forfeiture case.      
This court has held that a forfeiture proceeding provides a defendant with an adequate remedy at law for resolving a claim to seized property.

United States v. Akers, 215 F.3d 1089, 1106 (10^th Cir. 2000).

	If the defendant files a Rule 41(e) motion prior to exhaustion of the government’s statute of limitations for forfeiture, and the government responds by filing a forfeiture action, the claimant’s Rule 41(e) motion is automatically dismissed without further proceedings.  See United States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9^th Cir. 1991) (“Generally, a Rule 41(e) motion is properly denied if . . . the property is . . . subject to forfeiture or the government’s need for the property as evidence continues.”), quoted in United States v. Chambers, 192 F.3d 374, 377 (3^rd Cir. 1999).   
	Therefore, until the government’s statute of limitations for forfeiture has run and the property is no longer needed for evidence in the criminal prosecution, the Rule 41(e) remedy falls short of being a “complete and present cause of action” as defined by the Supreme Court, and the defendant’s cause of action under Rule 41(e) does not begin to accrue. 
	In this case, there is no evidence that any forfeiture proceedings have ever been conducted against this property.  If there were no forfeiture proceedings against this property, under the Second Circuit’s test, the defendants’ six year statute of limitations under  28 U.S.C. §2401(a) started to run when the government’s five year statute of limitations ran, whenever that was.^7   Under the Second Circuit test, even if the government declared this property administratively forfeited without giving notice, the defendants would still have time remaining on their statute of limitations, since defendants still have not learned of the existence of any administrative forfeiture proceedings against this property.

^7  The date when the government first discovered the criminal offense is a fact uniquely in the government’s possession, and defendants would have no way of knowing that date.  The courts would never create a statute of limitations rule which makes one party’s cause of action accrue on a date known only to the opposing party.

	The government’s remaining arguments have no merit.  Statutes of limitation cannot be shortened by the courts on “public policy” grounds, Opp. p. 29, or “reasonableness.”  Opp. p. 33-34.  The date of final judgment in the civil judicial forfeiture cases has no relevance to the accrual of a cause of action for property not forfeited^8 in those cases.  Opp. pp. 29-30.  There is no legal difference between a void forfeiture and no forfeiture at all.  Opp. 31.  If the government’s statute of limitations has expired it must return unforfeited property.  The Civil Asset Forfeiture Reform Act of 2000 does not apply to actions commenced before its effective date, (See Opp. 32) and has no relevance in interpreting pre-existing law.  

^8  Defendants are not challenging the judgments in the three civil judicial forfeiture cases.  They are only seeking the return of the property that was never forfeited.  Note: Civil Action 92-1155 names 51 items of real property “and improvements and contents of improvements thereon.”  Defendants assert these items of personal property do not fit within that definition. See Appx. 19.

	For the foregoing reasons, this Honorable Court should reverse and remand this case, after determining the property standard for the statute of limitations. 
								Respectfully submitted,

								Brenda Grantland
CERTIFICATE OF SERVICE
	I hereby certify that two copies of the foregoing brief were served upon AUSA Stephen Kotz, P.O. Box 607, Albuquerque, NM 87193, by first class mail, on December 22, 2000.

							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 4971 words.

							Brenda Grantland, Esq.

--