What happens if the government seizes property and fails to forfeit it: do they have to give it back?
Clymore III & Aguirre II Consolidated in the 10th Circuit

by Jody Neal-Post, Esq., Albuquerque NM

FEAR Foundation Journal, Vol. 1 No. 1
Fall 2003
posted on FEAR website 4/10/2004
(c) 2003 FEAR Foundation.  Reprinting for distribution without charge, and republication permitted if article is printed in its entirety without editing, and attribution is given to FEAR Foundation Journal, Forfeiture Endangers American Rights Foundation, 20 Sunnyside Suite A-419, Mill Valley, CA 94941. 

On September 19, 2003, the Tenth Circuit in Denver will hear oral arguments in the consolidated cases of Clymore v. United States (Clymore III) and United States v. Aguirre (Aguirre II). The two cases share the same district court judge (Judge Conway, who is now serving on the FISA court) and prosecutor (Steve Kotz), and somewhat the same fact pattern: property was seized in the early 1990's and not validly forfeited (or not forfeited at all). After the government’s statute of limitations ran, the claimants both filed Rule 41(e) motions for return of property. The government raised numerous arguments and the district judge agreed with the government on all of them. The claimants appealed and won, establishing precedent. The cases were remanded to the same district judge, where the prosecutor raised many of the same arguments that had been rejected on appeal in the other case. The district judge predictably ruled in favor of the government on each and every argument raised, and claimants appealed again. This process was repeated three times for Clymore; twice so far for the Aguirres.

The two cases also share an important legal issue: whether the government should be allowed to prove its grounds for forfeiture in a Rule 41(e) proceeding brought after the government blew its statute of limitations for forfeiture. On this issue both claimants seek to overturn Clymore II. They argue that because Clymore II conflicts with Clymore I on that issue, the earlier decision governs, under the law of the case doctrine and the rules for preventing intracircuit conflict.

In Clymore I, Mr. Clymore alleged that a 1992 administrative forfeiture was void because the federal government failed to give Mr. Clymore notice of the administrative forfeiture. The Tenth Circuit agreed and voided the administrative forfeiture of Mr. Clymore’s airplane and currency. The appellate court sent the case back to the District Court for the District of New Mexico, instructing that when an administrative forfeiture is void for lack of notice, the forfeiture should be vacated and the statute of limitations should be allowed to operate, subject to any government arguments tolling the statute.

In 2001, the Tenth Circuit decided Clymore II. Mr. Clymore asserted that the District Court had mistakenly applied equitable tolling, or the principle that the government should be allowed to proceed with its case despite having missed its statute of limitations, because it was fair to relax the rules to allow the government to proceed anyway. The Tenth Circuit said it was fair to consider relaxing the rules to benefit the government, but that in Mr. Clymore’s case, the District Court had abused its discretion in "relying on a mistake of fact upon which to find equitable tolling." Inexplicably in Clymore II, the Tenth Circuit also advised the District Court to apply the federal forfeiture statute anyway if the District Court found no way to toll the statute of limitations in the Government’s favor. This conflicts with what the Tenth Circuit said in Clymore I.

Shortly thereafter, the Tenth Circuit issued its opinion in Aguirre I. Aguirre joined Clymore as two of a flood of defective forfeiture cases arising out of the District of New Mexico in 1991-1992. Aguirre I involved standing issues– whether the Aguirres had a recognizable interest in the property (personal property which was found on real estate owned or rented by them when the underlying real estate was seized), as well as the question of what should be required of the government regarding property it seized but never returned or forfeited. The decision in Aguirre I recognized that all a forfeiture claimant need show is "a colorable ownership, possessory or security interest" in the claimed property, which the Tenth Circuit found the Aguirres had done. The decision also lined up with Clymore I on not allowing the government to raise its grounds for forfeiture in the Rule 41(e) proceeding if the government blew its statute of limitations.

Last summer, both the Clymore and Aguirre cases were again before the District Court of New Mexico. Judge Conway ruled against Mr. Clymore on the ultimate issue of the return of his property based upon Clymore II, even after finding that the government had failed to present any good reasons to allow tolling of its statute of limitations. The Aguirres suffered a dismissal of their request for return of their seized but unforfeited and unreturned property, with Judge Conway making the rather amazing conclusion that the property depicted in the government’s own seizure videos had not ever been seized. Therefore, the Court reasoned, what was not seized could not be returned. In coming to this conclusion, the court also relied upon Clymore II to allow the government to show grounds for forfeiture even though the government had blown its statute of limitations for forfeiture.

Mr. Clymore and the Aguirres have now been deprived of their property for over 10 years–without a constitutionally valid administrative or judicial forfeiture. The length of this deprivation of their property is outrageous in a system that proclaims over and over that forfeitures are disfavored in law. At some point, a point which has certainly passed for these claimants, the government should have perfected a transfer of lawful title to itself or the government should be presumed to be constitutionally required to return the claimants’ properties.

Hopefully the Tenth Circuit will join the majority of the circuits in enforcing the government’s statute of limitations in forfeiture cases by overturning the dicta in Clymore II, and finally, after more than a decade, force the government to return the property they didn’t legally forfeit.

Jody Neal-Post, who represents Clymore in his appeal, is FEAR’s new state coordinator for New Mexico. Brenda Grantland, President of FEAR’s Board of Directors, represents the Aguirres. Other precedent on this issue was established by California FEAR coordinator Shawn Perez, in U.S. v. Marolf and by Ms. Grantland in Shelden v. United States, as well as by Craig Clymore, acting pro se, in another circuit.

Related materials:

FEAR members with a password can view these related materials from the FEAR Brief Bank.  If you would like access to the Brief Bank, join FEAR (you can pay your dues on line) and then call the FEAR office (415-389-8551) for a password and user ID. 

Aguirre 1 brief - (10th Cir. 2000) Grantland
Issues:  standing, laches, Rule 41(g), government’s statute of limitations
[Word Perfect 6-10 | Word/RTF format]

Aguirre 1 reply brief - (10th Cir. 2000) Grantland
Issues:  standing, laches, Rule 41(g), government’s statute of limitations, 12(b) motion to dismiss
[Word Perfect 6-10 | Word/RTF format]

Aguirre 2 brief - (10th Cir. 2003) Grantland
Issues:  amendment of pleadings to add new claims, Rule 41(g), summary judgment, statute of limitations, law of the case
[Word Perfect 6-10 | Word/RTF format]

Aguirre 2 reply brief
- (10th Cir. 2003) Grantland
Issues:  amendment of pleadings to add new claims, Rule 41(g), presumption of ownership from possession, judicial estoppel, statute of limitations, request for remand to another judge
[Word Perfect 6-10 | Word/RTF format]