## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 6 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CRAIG CLYMORE, also known as James Burchell, also known as Steve Brown, also known as Kevin Riley, also known as Wayne Samuel Powell, also known as Cliff G. Wilson,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA,

Defendant-Appellee. No. 97-2319

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. C.V.-96-763-JC/RLP)

Submitted on the briefs: Craig Clymore, Plaintiff-Appellant, pro se. John J. Kelly, United States Attorney, and Stephen R. Kotz, Assistant U.S. Attorney, Albuquerque, New Mexico, for Defendant-Appellee.

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

EBEL , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

-2- Plaintiff appellant, Craig Clymore, pled guilty to conspiracy to knowingly and intentionally possess with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) an d 841 (b)(1)(B) and 18 U.S.C. § 2. Sometime after his incarceration, Clymore, pr oceeding pro se, filed a motion for return of property pursuant to Fed. R. Crim. P. 41(e) seeking the return of nine items of property forfeited in various state and fe deral proceedings. The district court adopted the report and recommendation of the magistrate judge denying Clymore’s motion for summary judgment and granting that of the government. However, contrary to the magistrate judge’s recomme ndation that only some of Clymore’s claims be dismissed with prejudice, the d istrict court dismissed all claims with prejudice. On appeal, Clymore raises v arious challenges to the conclusions of the district court. 1 We address those issues in order.
I. We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed. R. C.V. P. 56(c). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admiss ions-3- on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact a nd that the moving party is entitled to judgment as a matte r of law. When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly applied by the district court. Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation om itted). As did the district court, we separate the nine for feited items into four distinct categories. The first category consists o f items subject to judicial forfeiture: a 1990 Honda Accord judicially forfeite d in 1991 in the United States District Court for the Eastern District of Washingt on, and two items forfeited in New Mexico state judicial proceedings -- a Cessn a TU 206 aircraft Tail No. N2691X and a 1988 Ford truck. The district cou rt, citing United States v. Madden , 95 F.3d 38 (10th Cir. 1996), held that Rule 41(e) could not be used to contest judicial forfeitures. Clymore argues that, while this may be the case with regard to federal judicial forfeitures, Rule 41(e) is still available to challenge state judicial forfeitures. We disagree. Initially, we note that Rule 41(e) is an equitable remedy, see Floyd v. United States , 860 F.2d 999, 1003 (10th Cir. 1988), available to Mr. Clymore only if he can show irreparable harm and an inadequate remedy at law, see id. ; see also Blinder, Robinson & Co. v. United States (In re 6455 S. Yosemite) , 897 F.2d-4-

1549, 1556 (10th Cir. 1990) (same with pre-indictme nt 41(e) motion). Assuming Mr. Clymore has state avenues of relief open to him , he cannot show an inadequate remedy at law. Apart from principles of equity, however, there are some limited circumstances under which Rule 41(e) can be used as a vehicle to petition for the return of property seized by state authorities. Th ose circumstances include actual federal possession of the property forfeited by the state, constructive federal possession where the property was considered eviden ce in the federal prosecution, or instances where property was seized by state off icials acting at the direction of federal authorities in an agency capacity. See United States v. Solis , 108 F.3d 722, 722-23 (7th Cir. 1997) (denying Rule 41(e) mot ion where there was no evidence of federal possession or federal directionof state seizure); see also United States v. White , 718 F.2d 260, 261 (8th Cir. 1983) (denying Rule 4 1(e) motion where United States did not have possession of property); cf. United States v. Fabela-Garcia , 753 F. Supp. 326, 328 (D. Utah 1989) (finding fed eral constructive possession where state had deferred to the United States “in all aspects of the prosecution”). In his reply brief, Clymore attaches various docume nts establishing the involvement of federal law enforcement officers with his prosecution and conviction. None of those documents, however, spec ifically refer to the property2 Clymore cites United States v. Deninno , 103 F.3d 82 (10th Cir. 1996), to

support his argument that Rule 41(e) can apply to s tate judicial forfeitures. While the Deninno defendant’s Rule 41(e) motion sought the return of property seized both administratively by the Drug Enforcement Admin istration (DEA) and judicially by the state of Oklahoma, the Deninno opinion focuses exclusively on state and federal administrative forfeiture. See id. at 82 (“Although we find the record insufficient to hold the administrative forfeitures procedurally valid, we dismiss Mr. Deninno’s Rule 41(e) motion because it failed to offer any legal basis for the return of the forfeited property.”) (emphas is added). We refuse to read Deninno to suggest that Rule 41(e) can be used to challeng e state judicial forfeitures. -5- at issue. Clymore’s assertion that federal authori ties controlled the ongoing investigation and were “involved” in the seizures, without more, is insufficient to establish the extensive federal possession or contr ol necessary to make Rule 41(e) the appropriate vehicle by which to recover the state-forfeited property. 2 Because the district court did not have subject matter jurisdiction over the state-forfeited Cessna TU 206 aircraft and the 1988 Ford truck, the claims regarding them should have been dismissed without p rejudice. Upon remand, the district court is directed to amend its order o f dismissal to so indicate.
II. The second category of property identified by the m agistrate judge is approximately $2,000 in United States currency. Be cause Clymore acknowledges that this property was judicially seized by the state of New Mexico, his claim for return of the property pursuant to Rule 41(e) fails for the reasons discussed above. This claim, too, should have been dismissedwithout prejudice.3 The forfeiture procedures relating to the customs l aws apply to forfeitures

occasioned by violation of the drug laws. See 21 U.S.C. § 881(d). 19 U.S.C. § 1621, the limitations provision for the customs l aws, provides: No suit or action to recover . . . any pecuniary pe nalty or forfeiture of property accruing under the customs laws shall be i nstituted unless such suit or action is commenced within five years after the time when the alleged offense was discovered. -6- III. The third category of property consisted of a secon d Cessna TU 206 aircraft Tail No. N7352G, $4,510 in United States currency, approximately three million pesos in Mexican currency, and an ICOM portable transceiver with battery pack. These items were the subject of federal administrat ive forfeiture. The district court found, and the government conceded, that Clym ore had not received constitutionally adequate notice regarding the forf eiture of these items. The issue on appeal is what a district court should do under these circumstances when the statute of limitations prevents commencement of a j udicial forfeiture. Mr. Clymore essentially argues that a forfeiture wi thout adequate notice is void and that, because the statute of limitations h as run against the government, his property or its value should be returned to him

. 3 The district court examined the merits of the forfeitures and found that, becau se Mr. Clymore could not prevail on the merits, his claims must fail. We re verse.-7-

In United States v. Rodgers , 108 F.3d 1247 (10th Cir. 1997), this court found that notice was constitutionally ineffective where the DEA failed to mail seizure notices to the defendant at a residence kno wn to the agency. See id. at 1251. The court ordered that the forfeitures be vacated, thus treating the defective forfeiture as void. See id. at 1255; see also Aero-Medical, Inc. v. United States , 23 F.3d 328, 331 (10th Cir. 1994) (vacating admin istrative forfeiture where notice was inadequate); Armendariz -Mata v. United States Dep’t of Justice , 82 F.3d 679, 683 (5th Cir. 1996) (same); United S tates v. Volanty , 79 F.3d 86, 88 (8th Cir. 1996) (noting that “[w]henan administrative forfeiture is void for lack of notice, a district court must set aside the forfeiture Declaration and order DEA either to return [the] property or co mmence judicial forfeiture in the district court” (quotation omitted)); United St ates v. 2751 Peyton Woods Trail , 66 F.3d 1164, 1166-67 (11th Cir. 1995) (dismissin g government’s forfeiture complaint where petitioner received neither notice nor a hearing before the issuance of warrants seizing real property); UnitedStates v. Giraldo , 45 F.3d 509, 512 (1st Cir. 1995) (“If the notice turns out to have been inadequate, the forfeiture is void.”). Thus, applying Rodgers , the forfeitures here must be vacated. In an effort to avoid this result, the government c ites United States v. Deninno , 103 F.3d 82 (10th Cir. 1996). In that case, the defendant’s Rule 41(e)-8-

motion asserted that, although he had been served i n jail with notice of the forfeiture of his property, he was deprived of writ ing materials and postage with which to object to the proceedings. Defendant’s un contested allegation thus established that he had not received constitutional ly adequate notice. Instead of vacating the offending forfeiture and re manding the case, the panel proceeded to address the merits of the defend ant’s motion. After examining the record, the panel concluded that dismissal was warranted because the defendant had failed to “offer any plausible legal theories upon which to challenge the forfeitures.” Id. at 85. The court noted that the defendant had bee n convicted of various drug offenses and that “[a]ll of the property at issue in [the] case was seized from a hotel where Mr. Deninno was carrying out these crimes,” id. at 86, thus making the property forfeitable under both state and federal statutes. Because the defendant could “offer [no] reason why the property at issue [was] not subject to forfeiture,” id. , he could not show that he was prejudiced by the defective notice. The court reas oned that “[u]psetting the forfeitures because of the alleged procedural fault s, when Mr. Deninno appears to have no basis for the return of the property once the faults are remedied in new proceedings, would serve no purpose other than to w aste limited judicial resources.” Id. at 86.4 Indeed, documents from the Deninno case extant in this court’s files reveal

that Mr. Deninno was arrested in February 1992. Th e decision in Deninno was issued in 1996, well within the five-year limitatio ns period. Unless the alleged offense was discovered well before Mr. Deninno’s arrest, an unlikely scenario, there should have been ample time for the government to recommence a new forfeiture action.

5 Any broader reading of Deninno to the effect that constitutionally defective notice of a forfeiture merely renders the subsequent forfeiture voidable rather than void would be contrary to our holding in Aero- Medical, Inc. v. United States , 23 F.3d 328, 331 (10th Cir. 1994). Becau seAeroMedic al is the earlie r opinio n, it “const itutes bindin g circui (continued...) -9- Deninno is distinguishable from this case. As the magistr ate judge acknowledged, there was no statute of limitations p roblem apparent in Deninno

. 4 The panel, therefore, had the option of either rema nding the case to the district court where a judicial forfeiture could be commence d, or examining the merits of the forfeiture based on the record on appeal. E fficiency dictated the latter approach, and the government’s failure to provide a dequate notice was essentially viewed as harmless error. 55 (...continued) t prece dent constr aining subse quent panels absent en banc recon sidera tion or a supers eding contra ry decisi on by the Supre me Court.

. . .[Thu s,] when faced with anintracircui t confli (continued...) -10-5 (...continued) ct, a panel shoul d follo w earlie r, settle d prece dent over a subse quent deviat ion theref rom.” Hayne s v. Willia ms , 88 F.3d 898, 900 n.4 (10th Cir. 1996) (citati ons omitte d). -11- No such approach is possible in this case. The for feiture of which-12-

Clymore complains is void and must be vacated. See Rodgers , 108 F.3d at 1255; Aero-Medical , 23 F.3d at 331. Because the statute of limitatio ns has expired, any finding that constitutional error occurred in t he notice procedure would not be harmless as to Clymore, thus making the Deninno approach unworkable. The magistrate judge cited both Rodgers and Deninno , but noted, as mentioned above, that no statute of limitations iss ue had been raised in either case. Relying on Boero v. DEA , 111 F.3d 301 (2d Cir. 1997), and United States v. Marolf

, 973 F. Supp. 1139 (C.D. Cal. 1997), cases which e xplicitly address the limitations issue, the district court determined th at there was sufficient information in the record to reject Clymore’s claim on the merits. We disagree with this approach.
In Boero , 111 F.3d 301, the defendant entered a plea of gui lty to distribution of cocaine and conspiracy to commit ki dnaping. Currency seized at the time of his arrest was eventually administrativ ely forfeited by the DEA. The DEA conceded that the defendant had never received proper notice of the forfeiture, but the district court held that the de fendant’s remedy was via administrative claims procedures. See id. at 303-04. The Second Circuit reversed the latter determination, holding that [t]he court’s findings concerning the impropriety o f the forfeiture gave the court power to correct the deficiency. Th e court, however, did not correct the deficiency, and instead allowed Boero to pursue an administrative remedy, over five years from the date of the initial-13-

seizure, as if an improper forfeiture had never occ urred. . . . Consignment of Boero to his administrative remedy i s contrary to this Circuit’s civil forfeiture law. Id. at 305 (citation omitted). As a broad proposition , the court stated that “when the government is responsible for a known claimant’ s inability to present a claim, through the government’s disregard of its statutoryobligation to give notice (or otherwise), a hearing on the merits is availabl e in the district court.” Id. at 306. Because the court found that the DEA was r esponsible for the failure of notice, the court vacated the judgment “to the exte nt that the DEA was directed to commence administrative forfeiture proceedings, anddirect[ed] the district court to consider Boero’s claim on the merits.” Id. at 307. Following Boero , the court in Marolf

, 973 F. Supp. 1139, proceeded to examine the merit s of a challenge to a forfeiture where the limitations period had run a gainst recommencement of any further forfeiture action. We respectfully disagree with the Second Circuit’s decision in Boero insofar as the hearing ordered there examined the m erits of the challenged forfeiture when the original notice was constitutio nally deficient and the statute of limitations had already run. This result is req uired by our circuit precedent which holds that a forfeiture accomplished without adequate notice is void and must be vacated. See Rodgers , 108 F.3d at 1255; Aero-Medical , 23 F.3d at 331. As noted above, we are not alone in this view. See Armendariz-Mata , 82 F.3d at-14-

683; Volanty , 79 F.3d at 88; 2751 Peyton Woods Trail , 66 F.3d at 1166-67; Giraldo , 45 F.3d at 512. Where obvious statute of limitations problems exist , we think the offending forfeiture should be vacated and the statute of lim itations allowed to operate, subject, of course, to any available government arg uments against it. As we noted in Aero-Medical , “[d]ue process protections ought to be diligentlyenforced, and by no means relaxed, where a party seeks the tradit ionally disfavored remedy of forfeiture.” 23 F.3d at 331 (quotation omitted). We thus reverse the district court’s grant of summary judgment to the governmentas to the property administratively forfeited by the DEA.

IV. The last item of property at issue is a 1982 Toyotatruck seized in a federal administrative forfeiture in Texas. The district c ourt declined to exercise ancillary jurisdiction over property seized in another district. We affirm. Fed. R. Crim. P. 41(e) states, in pertinent part: A person aggrieved by an unlawful search and seizur e or by the deprivation of property may move the district courtfor the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful p ossession of the property. There is a split in the circuits regarding whether Rule 41(e) motions must be brought in the district in which the property wa s seized or in the district in6 This seems to contradict the first sentence of Rule 41(e) which provides

that: A person aggrieved by an unlawful search and seizur e or by the deprivation of property may move the district c ourt for the district in which the property was seized for the r eturn of the property . . . . See also United States v. Garcia , 65 F.3d 17, 20 (4th Cir. 1995) (rejecting Thompsonand characterizing this holding as a “flourish” co ntrary to the Rule). -15- which the criminal proceedings occurred. The Secon d Circuit in United States v. Giovanelli , 998 F.2d 116, 118 (2d Cir. 1993), has held that the district court which had presided over the underlying criminal pro ceeding had jurisdiction over a Rule 41(e) motion brought after the conclusion of the criminal matter even though the property had been seized in a different district. The Eighth Circuit has carried this reasoning a step further and held that the district court which had presided over the criminal matter was the only proper district to entertain a Rule 41(e) motion, implying that the district in which the property had been seized would not have jurisdiction. See Thompson v. Covington , 47 F.3d 974, 975 (8th Cir. 1995). 6 In contrast to these cases, the Fourth Circuit has held that, after the conclusion of the criminal proceeding, jurisdictionis proper only in the district in which the property was seized. See United States v. Garcia , 65 F.3d 17, 207 Mr. Clymore cites the Tenth Circuit case of United States v. Wingfield ,

822 F.2d 1466 (10th Cir. 1987), to urge that the di strict court should have exercised ancillary jurisdiction over the Texas tru ck. Wingfield , however, did not involve property seized in a jurisdiction differentfrom the one which had presided over the criminal proceeding. The issue w as not whether some other federal district court would have had jurisdiction over the res, but whether the trial court continued to have jurisdiction over a s ubsequent dispute between a local county agency and the Internal Revenue Servic e as to rights in the seized property. -16- (4th Cir. 1995) (Murhaghan, C.J., dissenting and ar guing that jurisdiction would be proper in either venue). 7 We agree with the Fourth Circuit and hold that, at least in cases where the underlying criminal proceedings have concluded and the trial court no longer exercises any control over the subject property, th e proper venue for a Rule 41(e) motion is the district in which the property was se ized. We see this interpretation as conforming more closely to the language of the rule and to the practicalities of judicial administration. We therefore affirm the d istrict court’s refusal to exercise ancillary jurisdiction over the Toyota tru ck. As with the other items discussed above over which the court had no jurisdi ction, this claim should have been dismissed without prejudice to refile in the d istrict of seizure. In summary, we AFFIRM the grant of summary judgmentto the government with respect to all items EXCEPT the ite ms discussed in Section III herein, to wit, the Cessna TU 206 aircraft Tail No. N7352G, $4,510 in United States currency, approximately three million pesos in Mexican currency, and the-17-

ICOM portable transceiver with battery pack. We RE VERSE the judgment of the district court as to those items and REMAND for further proceedings consistent with this opinion. We further REMAND with instruct ions that the claims for the return of the 1990 Honda EX-Accord, the Cessna TU a ircraft Tail #N2691X, the 1988 Ford Truck, the approximately $2,000 in UnitedStates currency, and the 1982 Toyota truck be dismissed without prejudice. This matter was initially treated in the district c ourt as a motion under 28 U.S.C. § 2255. If this error has not already be en corrected, the clerk for the district court for the district of New Mexico is di rected to revise its docket to reflect that this case is brought pursuant to Fed. R. Crim. P. 41(e).