BRENDA GRANTLAND, ESQ.
pro hac vice (California Bar #165899)
20 Sunnyside Suite A-204
Mill Valley CA 94941
415/380-9108 
Attorney for Defendants

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALBUQUERQUE DIVISION

UNITED STATES OF AMERICA			)   
						)
	Plaintiff,			  		)    Crim. No. 92-0486-JC
						)
	v.					)    
						)    
GABRIEL RODRIGUEZ AGUIRRE  		)    DEFENDANTS’ OPPOSITION
ELENO AGUIRRE, DOLORAS CONTRERAS	)    TO THE GOVERNMENT’S
and TONY BENCOMO,				)    MOTION FOR 
				  		)    SUMMARY JUDGMENT
	Defendants.				)    
						)   	
                                                                                    )

	Defendants, through undersigned counsel, hereby oppose the government’s Motion for Summary Judgment Regarding Defendants’ Rule 41(e) Motion.  As grounds therefore defendants submit these points and authorities and their attached Reply to Government’s Statement of Undisputed Material Facts.
ARGUMENT
	The government makes a number of non-meritorious arguments in its motion for summary judgment.  We will deal with them in the order presented, except for the argument the government makes on page 10, which we discuss in part F below.
A.  Defendants’ “expanded list” of items for which they seek return  

	Part A of the government’s argument again complains that the defendants expanded their list of unforfeited property they want returned when they filed Defendants’ List of Properties Claimed, With Description and Identity of Persons Claiming Them.  It argues that “[d]efendants failed to seek consent of the United States or leave of Court prior to filing what amounts to an amended complaint seeking return of additional, and in some instances, different items of personal property.”  The government ignores the fact that the court ordered defendants to file this pleading, at the government’s insistence.  The order specifically states: “Defendants shall file a list of the items being claimed, identifying the person claiming each item, and describing each item by December 7, 2001.”  Order of Mag. Judge. Leslie Smith, entered Nov. 16, 2001.
	To the extent this list amends the original Rule 41(e) pleading, the amendment relates back under Rule 15 of the Federal Rules of Criminal Procedure.
B.  The government’s claim that items were not seized	
	In section B, the government argues that a number of the items which defendants are asking to have returned were never seized by the government.  They offer no evidence in support of this contention, and instead cite to the United States’ Response List, and the amendment thereto (correcting errors since discovered in the original Response List).  Neither of these documents are sworn. The declarations set out in Government Exhibits 2 and 3 state that “to the best of my knowledge” the United States’ Response list is accurate, but do not state what measures, if any, were taken by the affidants to ensure accuracy of the list.  
	Defendants have countered with sworn declarations that these items of personal property were all on the premises owned, rented and/or controlled by them when those premises were raided by police.
	Clearly these facts are in dispute. This is a question that can only be resolved at trial.
	The remainder of the government’s arguments in section B also cannot be resolved by summary judgment because facts are disputed.  
	The government is inviting error when it urges the court to weigh evidence.  See Gov’t’s Motion p. 13 (“their claims... are equally unsupported and suspect,” “the lack of substance supporting defendants’ claims,” “no scintilla of evidence,” “...defendants have failed to establish a cognizable claim.”) The government clearly misstates the law regarding summary judgment when it states that “without some proof by the defendants that the United States actually seized these items from them and maintained custody, summary judgment in favor of the United States is warranted to these items.”  As this court knows, there is no burden of proof or weighing of evidence on summary judgment.  The government should beware of inviting error because, should defendants prevail they will be entitled to attorney’s fees, and the extra trips to the Court of Appeals run up the tab.  
C. The declaration of abandonment “process”
	In Section C, the government first argues that it was not required to give notice to Gabriel Aguirre regarding the items seized from storage lockers 111 and 114 because those storage lockers were rented in the name of Danny Aguirre.  Danny Aguirre was not arrested in connection with this case.  The search warrant affidavits for both of these lockers allege probable cause to believe that the storage units were used to store vehicles and records of the “Aguirre organization” and specifically name Gabriel and Eleno Aguirre.  See Search Warrants and Affidavits, # 92-1071-M-LC and # 92-1077-M-LC, Exhibit 13in Volume III of Defendants Exhibits, pp. 50-54.
	The government claims certain items were returned to Danny Aguirre, and that Danny Aguirre was notified of abandonment proceedings against other items.  Danny Aguirre disputes that.  See Exhibit 3, Volume I of Defendants Exhibits, p. 9.  
	Under Tenth Circuit precedent, notice to Danny Aguirre is not effective in terminating the property rights of Gabriel Rodriguez-Aguirre, Eleno Aguirre, Doloras Contreras or Tony Bencomo. In Aero-Medical v. United States, 23 F.3d 328, 331 (10^th Cir. 1994), the court stated:
In this case, the government did not attempt to notify Dr. Trent or plaintiff through Dr. Trent's defense counsel or plaintiff's registered agent for service. Also because there was no finding of an alter ego relationship between plaintiff and Dr. Trent, notice to Dr. Trent, either personally or through defense counsel, would not necessarily have been reasonably calculated to reach plaintiff.

	Defendants have already countered the government’s arguments regarding the invalidity of their declarations of abandonment in Defendants’ Motion for Partial Summary Judgment, part III (pp. 13-15), and will not repeat those arguments here.  
	Since the search warrant affidavits show the government clearly believed this property belonged to Gabriel and Eleno Aguirre and Doloras Contreras (who they called “the Aguirre organization”), and that they hid their property in the name of straw owners, due process required them to give notice to Gabriel and Eleno Aguirre and Doloras Contreras - in addition to or instead of the straw owners.  Title to seized property does not vest in the government when the property owner was deprived of constitutionally adequate notice.
	There were a number of El Caminos seized in this case.  Indeed, the government claimed in the criminal trial that the Aguirres had a whole fleet of them.  The El Caminos forfeited in Civil forfeiture case 93-0102 were not the El Caminos defendants claim were never forfeited.  Before filing this Rule 41(e) motion, Gabriel Aguirre carefully compared all the civil forfeiture complaints and judgments and eliminated any items that had been judicially forfeited from the list of unforfeited property.  See declaration of Gabriel Rodriguez-Aguirre Regarding Unforfeited Personal Property p. 2 ¶ 4, reprinted as Exhibit 9 in Volume III of Defendants’ Exhibits, p. 22.
D.  Res Judicata
	Section D of the government’s argument claims the three civil forfeiture judgments are res judicata as to property not named in those judgments.  That is jurisdictionally impossible under the law of in rem civil forfeitures.  
	The vastly reduced due process and draconian procedures available to the government in civil in rem forfeiture cases are based on the legal fiction that it is the property, not the property owner that is on trial.  The downside of this legal fiction, from the government’s standpoint, is that the property must be specifically described and named as a defendant in the complaint in order for the court to have in rem jurisdiction over it.  A forfeiture judgment cannot reach property not specifically named in the complaint because the court’s in rem jurisdiction does not extend so far.  See section III of Defendants’ Motion for Partial Summary Judgment, pp. 8-12.
	It is a matter of interpretation whether the civil forfeiture complaints and judgments in those three cases reach any of the items of seized property which defendants are claiming were never forfeited.  If any of these items were forfeited in those cases, a Rule 41(e) motion would not be the appropriate remedy (a civil rule 60(b) motion would be required).^1  However, defendants have stated at all times that they did not seek to reopen those civil judgments, but only to obtain return of property those judgments did not reach.  Therefore the res judicata argument is not applicable.

1  See United States v. Madden, 95 F.3d 38, 40 (10^th Cir. 1996).

E.  Statute of limitations
	In Section E of its Motion for Summary Judgment, the government raises an argument it made during oral argument before the Tenth Circuit – that the defendants’ statute of limitations for filing a Rule 41(e) motion should accrue when the government obtained a judgment in the judicial civil forfeiture cases.  The Tenth Circuit panel was not impressed with that argument, and this court should not be either.  If this property was not named and validly forfeited in one of the civil forfeiture cases, then those proceedings have absolutely no relevance to the accrual date for a Rule 41(e) motion seeking the return of other property.
	This court is not free to create a new standard for statutes of limitations in Rule 41(e) cases; the Tenth Circuit specifically ruled on those issues, creating a very tight standard for the court to apply on remand.  “A district court ‘must comply strictly with the mandate rendered by the reviewing court.’” Ute Indian Tribe v. United States, 114 F.3d 1513, 1521 (10^th Cir. 1997), quoting Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of America, 962 F.2d 1528, 1534 (10th Cir. 1992); see also Mason v. Texaco, Inc., 948 F.2d 1546, 1553 (10th Cir. 1991) ("Under the 'law of the case' doctrine, the district court may not deviate from the appellate court's mandate.").
	On appeal, the Tenth Circuit held that if there were no administrative forfeiture proceedings ever commenced against these items, then defendants’ Rule 41(e) motion was filed within their statute of limitations:
In a case of seizure and wrongful refusal to return property where no civil or administrative forfeiture proceeding has been instituted against the property, we return to the general principle that the accrual date of a cause of action is when the plaintiff discovered or had reason to discover that he has suffered injury due to the defendant's actions...  
*     *     *

In the Rule 41(e) context, we hold that the date on which a claimant can reasonably be expected to inquire after property that has been seized by the United States in conjunction with criminal proceedings, but has not been the subject of criminal, civil or administrative forfeiture proceedings, is the date on which the criminal proceedings against the claimant have concluded. The government is clearly permitted to seize evidence for use in investigations and trial. See, e.g., Warden v. Hayden, 387 U.S. 294, 306, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967); United States v. Premises Known as 608 Taylor Ave., Apt. 302, 584 F.2d 1297, 1302 (3d Cir. 1978). “Nevertheless, the government may not by exercising its power to seize, effect a de facto forfeiture by retaining the property seized indefinitely.” 608 Taylor Ave., 584 F.2d at 1302. Thus, the general rule is that “seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated.” Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir. 1990); see, e.g., United States v. Francis, 646 F.2d 251, 262 (6th Cir. 1981); United States   v. Farrell, 196 U.S. App. D.C. 434, 606 F.2d 1341, 1343 (D.C. Cir. 1979); 608 Taylor Ave., 584 F.2d at 1302; United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977); United States v. Brant, 684 F. Supp. 421, 423 (M.D.N.C. 1988); cf. Lowther v. United States, 480 F.2d 1031, 1033-34 (10th Cir. 1973) (finding that the government could not, without commencing forfeiture proceedings, retain and destroy evidence which was not illegal per se after the claimant was acquitted of criminal charges). Accordingly, it has been recognized that the non-contraband “property of [an] accused in a criminal case, seized by officers and used as evidence, generally will be returned to him on proper application, and property taken under a search warrant is generally returned to its rightful owner when no longer needed in aid of a criminal prosecution if its ownership is undisputed.” 79 C.J.S. Searches and Seizures §  114 (1952); Farrell, 606 F.2d at 1347 (stating that seized property should be returned to its rightful owner unless it is contraband, it has been forfeited by the government, or “the property involved is subject to government retention pending termination of the trial”); cf.  United States v. Wilson, 176 U.S. App. D.C. 321, 540 F.2d 1100, 1101 (D.C. Cir. 1976) (acknowledging the district court's jurisdiction and duty to ensure the return of “property seized from [a  criminal defendant] in the investigation but which is not . . . stolen, contraband, or otherwise forfeitable, and which is not needed, or is no longer needed, as evidence”).

United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1212-13 (10^th Cir. 2001).  The Court of Appeals then concluded that the defendants’ Rule 41(e) cause of action accrued, beginning the statute of limitations clock, on the date their criminal convictions were final.  The court found no need to resolve “whether the conclusion of criminal proceedings occurs after the trial and sentencing, or whether it occurs only after the appeals process has run its course” Id. at 1214 n. 15, 
because that determination is not necessary to the resolution of this case. Appellants were convicted on December 15, 1994, and direct appeals of the convictions of Rodriguez-Aguirre, Aguirre and Contreras were resolved in 1997. The Rule 41(e) motion was brought on April 20, 2000. It therefore appears that Appellants' motion was brought within the six-year statute of limitations provided by 28 U.S.C. §  2401(a) regardless of which date is used as the starting point for the limitations period governing Appellants' cause of action.”

Id. These rulings of the Court of Appeals are law of the case.

F.  Defendants do not have to show innocent ownership, and it is too late for the government to show grounds for forfeitability, now that its statute of limitations has run 

	The government’s brief argues this issue in two places – in the introductory paragraphs of their argument (p. 10) and in section F.
	1.  The government misconstrues Clymore II  
	On page 10, the government misconstrues dicta in United States v. Clymore, 245 F.3d 1195 (10^th Cir. 2001) [“Clymore II”], as supporting its argument that, even after the government seizes property and fails to commence administrative or judicial forfeiture proceedings against the property within its five year statute of limitations, a defendant litigating a Rule 41(e) motion for return of property must show either an illegal seizure or innocent ownership in order to prevail.  Specifically, the government argued that
a 41(e) motion for return of property involved in drug offenses is confined by property rights defined in 21 U.S.C. § 881. [Citing United States v. Clymore, 245 F.3d 1195, 1200 (10^th Cir. 2001).] At the time the government takes possession of property used to commit drug offenses, it holds an unperfected right to title to it, and a person may recover the property only if he can show a superior interest through 1) an illegal seizure or 2) innocent ownership.  Id.

Gov’t’s Motion p. 10.  What the government is suggesting is a bold mis-statement of the law.  
	If the government, merely by seizing property in connection with a drug case obtains an unperfected right to title to it – requiring the owner to prove innocence even after the government’s statute of limitations for filing a forfeiture action has expired – then there would be no need for forfeiture statutes, and the statute of limitations would be meaningless.
	The unfortunately confusing dicta from Clymore II – which the government paraphrases above – says something else when read in its entirety.  Here is the language in context:
Finally, we address what proceedings on remand are appropriate when a Rule 41(e) or equitable civil motion involves property confiscated during an arrest for drug smuggling for which the defendant/claimant is later convicted, the administrative forfeiture of that property is later voided, and the statute of limitations for forfeiture proceedings has run. Mr. Clymore argues that such a situation automatically requires that instrumentalities of crime (the airplane used to transport 745 pounds of marijuana and the air-to-ground radio in question) and derivative contraband (the almost two million Mexican pesos and $ 4,500 in United States currency found in a bag in the back of the airplane) be turned over to whomever claims to be entitled to lawful possession. Again, we disagree.

“No property right shall exist” in illegal drugs, proceeds from selling illegal drugs, or property used to enable the illegal smuggling of drugs into this country.  21 U.S.C. §  881(a) (1999). Such property is not subject to a state statutory or common-law right of replevin. Id. §  881(c). The government has the right to confiscate and maintain custody over that property "subject only to the orders and decrees of the court or the official having jurisdiction thereof." Id.

At the time the government takes possession of property used to commit drug offenses, it holds an unperfected right to title to it, and ownership will retroactively vest in the government from the time the illegal act was committed upon a judicial quieting of title to the property in favor of the government. See id. §  881(h); cf.  United States v. Stowell, 133 U.S. 1, 16-17, 33 L. Ed. 555, 10 S. Ct. 244 (1890) (explaining that "forfeiture takes effect immediately upon the commission of the [illegal] act; the right to the property then vests in the United States, although their title is not perfected until judicial condemnation"); Hatzlachh Supply Co. v. United States, 7 Cl. Ct. 743, 749 (1985) (customs case holding that seizure of goods illegally brought into the United States "gave [the United States] unperfected right to title, subject only to judicial determination.") 

Clymore, 245 F.3d at 1199-1200. There are several reasons why this reasoning does not apply to the facts of this case. 
	First, this is not a case where the property was “confiscated during an arrest for drug smuggling for which the defendant/claimant is later convicted, [and] the administrative forfeiture of that property is later voided” after the statute of limitations has run.  There was no administrative forfeiture of the property here.  The government simply took it and failed to perfect forfeiture of it.
	Secondly, the unforfeited items defendants want returned were never established to be “instrumentalities” or proceeds of crime, unlike the property Clymore tried to get back.  Clymore’s Rule 41(e) motion sought return of items the criminal case showed to be  “instrumentalities of crime (the airplane used to transport 745 pounds of marijuana^2 and the air-to-ground radio in question) and derivative contraband (the almost two million Mexican pesos and $ 4,500 in United States currency found in a bag in the back of the airplane).”  In this case, no where in any court proceeding –  including the criminal case and the three separate civil forfeiture actions – did the government even allege a nexus between these particular items and a crime.

2  The Ninth Circuit took the opposite point of view in United States v. Marolf, 173 F.3d 1213, 1216-17 (9^th Cir. 1999), where it held the district court had no choice but to return to the convicted defendant the boat which he had used to smuggle marijuana, since the government’s statute of limitations for perfecting a forfeiture had run.  In doing so, the Ninth Circuit quoted that Tenth Circuit’s decision in Clymore v. United States, 164 F.3d 569, 574 (10^th Cir. 1999) (“Clymore I”): “[w]here obvious statute of limitations problems exist, we thing the offending forfeiture should be vacated and the statute of limitations allowed to operate, subject, of course, to any available government arguments against it.”

	Third, the statement quoted from 21 U.S.C. § 881 that “[n]o property right shall exist’ in illegal drugs, proceeds from selling illegal drugs, or property used to enable the illegal smuggling of drugs into this country” is simply irrelevant here, since there has never been any proof that these items of personal property were proceeds of, or used to facilitate, any offense.
	To the extent Clymore II can be construed to suggest that the expiration of the government’s statute of limitations does not preclude a relitigation of the merits of the forfeiture case^3 the government could have brought, that interpretation defies Supreme Court precedent. The old Supreme Court cases cited in Clymore II as justifying its interpretation of the relation back doctrine were severely undermined by the 1992 Supreme Court decision United States v. 92 Buena Vista Ave., 507 U.S. 111 (1993), which held that the government’s title to the property relates back to the time of the illegal act – only after the government wins a judgment of forfeiture.  “The Government cannot profit from the common law doctrine of relation-back until it has obtained a judgment of forfeiture.”  Buena Vista, 507 U.S. at 129.^4United States v. 92 Buena Vista Ave., 507 U.S. 111, 131-32 (1993) (J. Scalia dissenting.)  The Supreme Court also specifically rejected the notion that “one cannot acquire an interest in [alleged] drug proceeds” – holding that the innocent owner defense could be raised by the claimant there – the girlfriend of a convicted drug dealer – who acquired her interest in the property from a gift of cash he gave her, from drug proceeds.  The Court iterated: “Until the Government does win such a judgment, however, someone else owns the property.” Buena Vista, 507 U.S. at 129.    See also United States v. Grover, 119 F.3d 850, 851-52 (10^th Cir. 1997).

3  The confusing language appears on page 1200: “In other words, just because the statute of limitations has run on the government bringing an action to quiet title in the property by using forfeiture proceedings, that does not mean that the district court cannot rule in favor of the government on Mr. Clymore’s attempt to equitably recover the property seized during his arrest.”  Whatever the Tenth Circuit meant by that, it could not mean what the government is arguing here.

4  Even dissenting Justice Scalia agreed in Buena Vista that the government acquires nothing until the judgment:

The Government’s argument in this case has rested on the fundamental misconception that, under the common law relation-back doctrine, all rights and legal title to the property pass to the United States “at the moment of illegal use.” Brief for United States 16. Because the Government believes that the doctrine operates at the time of the illegal act, it finds the term “relation back “ to be “something of a misnomer.” Ibid. But the name of the doctrine is not wrong; the Government’s understanding of it is. It is a doctrine of retroactive vesting of title that operates only upon entry of the judicial order of forfeiture or condemnation: ‘[T]he decree of condemnation, when entered, relates back to the time of the commission of the wrongful acts, and takes date from the wrongful acts, and not from the date of the sentence or decree.’ Henderson’s Distilled Spirits, 14 Wall. 44, 56 (1871). ‘While, under the statute in question, a judgment of forfeiture relates back to the date of the offense as proved, that result follows only from an effective judgment of condemnation.’ Motlow v. State ex rel. Koeln, 295 U.S. 97, 99 (1935). The relation-back rule applies only ‘in cases where the [Government’s] title ha[s] been consummated by seizure, suit, and judgment, or decree of condemnation,’ Confiscation Cases, 7 Wall. 454, 460 (1869), whereupon “the doctrine of relation carries back the title to the commission of the offense,” United States v. Grundy, 3 Cranch 337, 350-351 (1806) (Marshall, C.J.) (emphasis added). See also United States v. Stowell, 133 U.S. 1, 16-17 (1890).

	The government has not won such a judgment in relation to the property seized here, and cannot institute forfeiture proceedings now that its statute of limitations has expired. Therefore any evidence it may have offered on the merits to show a nexus between the seized items and the offense is now completely irrelevant.
	2.  The defendants do not have the burden of proving innocent ownership
	In part F,^5 the government makes another bold mis-statement of the law, arguing that it  “is entitled to summary judgment because defendants have not met their burden of establishing both lawful and equitable entitlement to return of the property ‘on the merits.’” The government cites United States v. Clymore, 245 F.3d 1195, 1200, 1202 (10^th Cir. 2001) for this untenable proposition.

5  The government made the same argument in its opening paragraphs of its argument, page 10 of its Motion for Summary Judgment.  The defendants responded to those arguments in section I of this Opposition, above.  We will not reiterate those arguments here, but merely refer the court to Section I.

	In our previous appeal to the Tenth Circuit, the panel distinguished Clymore:
After the criminal proceedings conclude, however, the government has no right to retain the property, absent the commencement of forfeiture proceedings, and its continued retention of the property from that point forward could legitimately be viewed as a deprivation of the defendant's due process rights.

Rodriguez-Aguirre, 264 F.3d at 1213 (emphasis added).  The court continued in a footnote:

This holding is not precluded by our recent statement in United States v. Clymore, 245 F.3d 1195 (10th Cir. 2001), that the government holds “unperfected right to title” in derivative contraband “at the time the government takes possession” of the property.  Id. at 1200. The mere fact that the government may lawfully possess seized property prior to the commencement of forfeiture proceedings, and that the title to such property may vest in the United States after forfeiture proceedings have concluded, does not mean a criminal defendant should not reasonably be expected to inquire after the seized property once his criminal proceedings have concluded. As the Clymore panel noted, “‘when the criminal proceedings have terminated . . . the person from whom the property was seized is presumed to have a right to its return, and the government must demonstrate that it has a legitimate reason to retain the property.'” Id. at 1201 (quoting United States v. Chambers, 192 F.3d 374, 377 (3rd Cir.1999) (citations and quotations omitted)).
Rodriguez-Aguirre, 264 F.3d at 1213 n. 14. 
	It is black letter law that, when a Rule 41(e) motion is brought after the criminal case has concluded, the burden of showing a legitimate reason for retaining the property is on the government.
If a motion for return of property is made while a criminal prosecution is pending, the burden is on the movant to show that he or she is entitled to the property.  [United States v.] Martinson, 809 F.2d [1364,] 1369 [(9^th Cir. 1987)].  “Generally, a Rule 41(e) motion is properly denied ‘if the defendant is not entitled to lawful possession of the seized property, the property is contraband or subject to forfeiture or the government’s need for the property as evidence continues.’”  United States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir.1991).  The burden shifts to the government when the criminal proceedings have terminated.  Martinson, 809 F.2d at 1369.

United States v. Chambers, 192 F.3d 374, 377 (3rd Cir. 1999). 
	Where criminal proceedings are over, and the government’s statute of for instituting a forfeiture action has run, it is too late for the government to attempt to forfeit the property.  See United States v. Grover, 119 F.3d 850, 852 (10^th Cir. 1997):
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 [92 Buena Vista], 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...

	In Clymore v. United States, 164 F.3d 569 (10^th Cir. 1999) (“Clymore I”), the Tenth Circuit made it clear that the court hearing a Rule 41(e) motion could not reach the merits of what would have been grounds to forfeit property since the government’s statute of limitations had run without the institution of a forfeiture action against the property.
We respectfully disagree with the Second Circuit’s decision in Boero insofar as the hearing ordered there examined the merits of the challenged forfeiture when the original notice was constitutionally deficient and the statute of limitations had already run....
 
Where obvious statute of limitations problems exist, we think the offending forfeiture should be vacated and the statute of limitations allowed to operate, subject, of course, to any available government arguments against it.  As we noted in Aero-Medical, “[d]ue process protections ought to be diligently enforced, and by no means relaxed, where a party seeks the traditionally disfavored remedy of forfeiture.”  23 F.3d at 331 (quotation omitted).

Clymore v. United States, 164 F.3d 569, 574 (10^th Cir. 1999).  

	Since this ruling from Clymore I was not overturned it is law of the case, and seemingly contrary language in Clymore II cannot be binding.  As the Ninth Circuit explained,
[t]he “law of the case” doctrine provides that “‘one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case.’”  Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir.1991) (quoting Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.1979))... failure to apply the law of the case is an abuse of discretion.  Id. (citation omitted);  see also Jeffries v. Wood, 114 F.3d 1484, 1489 (9th  Cir.1997) (en banc) (holding that the discretion to not follow the “law of the case” doctrine is limited).

United States v. Scrivner, 189 F.3d 825, 827-28 (9th Cir. 1999).  
	The Tenth Circuit agrees: “Federal courts will not revisit an issue that has been finally adjudicated in a prior decision in the same case.” United States v. Libretti, 161 F.3d 18, (10th Cir. 1998), citing Ute Indian Tribe v. Utah, 114 F.3d 1513, 1520 (10th Cir.1997), cert. denied, 522 U.S. 1107 (1998).

CONCLUSION
	For the foregoing reasons this court should deny the government’s motion for summary judgment.
							Respectfully submitted,

							BRENDA GRANTLAND
							Pro Hac Vice
							20 Sunnyside Suite A-204
							Mill Valley, CA  94941
							(415) 380-9108

CERTIFICATE OF SERVICE
	I hereby certify that I served a copy of the foregoing Opposition to The Government’s Motion for Summary Judgment, and Reply to the Government’s Statement of Material Facts upon AUSA Stephen Kotz, 201 Third Street N.W., Suite 900, Albuquerque NM 87102, by Priority Mail, this _______ day of ___________, 2002.

								_______________________
								Brenda Grantland