* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### APR 17 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

OLAF PETER JUDA,

Plaintiff-Appellant,

v. DENNIS MICHAEL NERNEY, Assistant U.S. Attorney, Northern District of California; STEPHEN R. KOTZ, Assistant U.S. Attorney, Albuquerque, New Mexico; JOHN J. KELLY, U.S. Attorney, Albuquerque, New Mexico; MICHAEL YAMAGUCHI, U.S. Attorney, San Francisco, California; ROBERT L. HOLLER, District Director, U.S. Customs Service, El Paso, Texas; LEONARD S. WALTON, Acting Assistant Commissioner, U.S. Customs Service, Washington, D.C.; BONNIEL. GAY, FOIA Unit, Attorney-inCharge, Washington, D.C.; JOHN AND JANE DOES 1-25; and UNITED STATES OF AMERICA,

Defendants-Appellees. No. 99-2070 (D.C. No. CIV-96-584-JP) (D.N.M.)

ORDER AND JUDGMENT *1 Administrative forfeiture of property valued at $50 0,000 or less, furnished (continued...) -2- Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.

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. Plaintiff Olaf Peter Juda, proceeding pro se, appea ls from the district court’s order denying his requests for recovery of forfeited property and damages. We affirm in part, reverse in part, and remand in p art for further proceedings consistent with this order and judgment.

BACKGROUND In July 1991, Juda was arrested off the coast of Ca lifornia for attempting to ship hashish from Asia to Canada. Later, he pled g uilty to two counts of drug smuggling and one count of arson on the high seas. The conviction was affirmed on appeal. See United States v. Juda , 46 F.3d 961, 969 (9th Cir. 1995). While Juda was in federal custody, the government seized his real and personal property located in New Mexico and conducted administrative forfeiture proceedings. 11 (...continued)

or obtained in exchange for a controlled substance, is authorized by statute. The government is required to send written notice of fo rfeiture proceedings to each party who may have an interest in the seized property and to publish notice of its intent to seize the property in a newspaper of gene ral circulation once a week for three consecutive weeks. A potential claimant then has twenty days in which to file a claim and to post a bond. See 19 U.S.C. §§ 1608, 1607(a); 21 U.S.C. § 881(a).

2 We also determined that the seizure of Juda’s real property without preseizure process violated Juda’s due process rights, entitling him to an equitable remedy. See Juda I , 1998 WL 317474, at **5 (relying on United States v. James Daniel Good Real Property , 510 U.S. 43, 46, 62 (1993), which held that, abse nt exigent circumstances, the Due Process Clause requi res notice and a meaningful opportunity to be heard before government seizure o f real property). Juda did not pursue this avenue for relief on remand and it is n ot at issue in this appeal. In any event, the remedy for a Good violation is to release to the owner of the property the profits or rent attributable to th e period of the illegal seizure. (continued...) -3- Juda subsequently filed lawsuits seeking the returnof the forfeited property and damages for alleged violations of his due process r ights. The district court dismissed all of his claims and Juda appealed. This court affirmed in part, reversed in part, and remanded to the district court for consideration of specified issues. See Juda v. Nerney , Nos. 97-2192, 97-2326, 1998 WL 317474 (10th Cir. June 16, 1998) (unpublished) ( Juda I ). The district court was to determine on remand whether the twenty-month delay between seizure of Juda’s real property and commenc ement of forfeiture proceedings against a $150,000 check (representing the proceeds from the sale of the property) amounted to a due process violation. 2 See id. at **6; see also2 (...continued)

See Juda I at **6; see also United States v. Marsh , 105 F.3d 927, 931 (4th Cir. 1997). In the instant case, a monetary award attri butable to the government’s precipitate seizure would have been minimal.

3 The forfeited personal property included a Jeep Che rokee, $40,000 recovered from a safety deposit box in Santa Fe, $5 0,000 recovered from a safety deposit box in Taos, $19,830 recovered from an Albu querque bank, $8,753 from another Albuquerque bank, $19,882 from a Taos bank, and miscellaneous items valued at $1,134 taken from a storage locker. See Juda I , 1998 WL 317474, at **2; R., vol. 2, doc. 32 at 8. -4- United States v. Eight Thousand Eight Hundred & Fif ty Dollars ($8,850) in U.S. Currency , 461 U.S. 555, 562-68 (1983) (discussing whether d ilatory conduct on the part of the government in initiating civil forf eiture proceedings may violate a claimant’s due process rights). Concerning the forfeiture of Juda’s personal property, we concluded that the government’s failure to send notice to Juda’s p lace of incarceration rendered its notice procedure inadequate. See United States v. Clark , 84 F.3d 378, 381 (10th Cir. 1996) (holding that, if the government i s aware that an interested party is incarcerated, it is required to attempt to serve him with notice in prison). 3 Notwithstanding the government’s lack of reasonable efforts to provide notice, however, the forfeitures were valid if Juda had act ual notice of the pending proceedings. See United States v. Rodgers , 108 F.3d 1247, 1254-55 (10th Cir. 1997). We therefore remanded for further proceedin gs to determine whether Juda had received notice through another channel of communication. See Juda I , 1998-5-

WL 317474, at **6-7. In the event notice was lacki ng, the district court was to proceed to the merits of the forfeiture. See id. at **7 (citing United States v. Deninno , 103 F.3d 82, 86 (10th Cir. 1996)). On remand, the district court referred the matter t o a magistrate judge. After conducting an evidentiary hearing, the magist rate judge found that the twenty-month delay in initiating forfeiture of the proceeds from the sale of Juda’s real property was attributable to legitimate concer ns that civil discovery could jeopardize the criminal prosecution and also affectnational security interests in nondisclosure of techniques for tracking suspects a cross international boundaries. Moreover, Juda failed to demonstrate that the postp onement prejudiced his ability to contest the forfeiture proceedings. The magistr ate judge concluded that the delay did not rise to the level of a due process vi olation. With regard to the personal property forfeitures, the government did not attempt to show that Juda had actual knowledge or n otice of the proceedings. Instead, it put on its proof that the seized person al property constituted the proceeds of criminal activity. Based on the eviden ce before him, the magistrate judge found that the seized personal property const ituted the proceeds of criminal activity and was subject to forfeiture. Consequently, the magistrate judge recommended the dismissal of all claims. Upon Juda’s objections, the district courtconsidered the issues de novo-6-

and adopted the magistrate judge’s order recommendi ng dismissal with prejudice. This appeal followed.

DISCUSSION Generally, we review a district court’s denial of amotion for return of forfeited property for an abuse of discretion. See Deninno , 103 F.3d at 84.
A de novo standard applies, however, to the ultimate conclus ion of whether a claimant’s due process rights have been violated. See United States v. One Parcel of Real Property Described as Lot 41, Berryhill Farm Estates , 128 F.3d 1386, 1391 (10th Cir. 1997). We construe the pleadings and papers of a pro se appellant liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam). Real property issues The Supreme Court has explained that, in determinin g whether delayed forfeiture proceedings violate a claimant’s due pro cess rights, courts should balance the interests of the claimant and the government. See Eight Thousand Eight Hundred & Fifty Dollars , 461 U.S. at 555-56. The following four factors are relevant: (1) the length of delay; (2) the rea son for the delay; (3) the claimant’s assertion of the right to a judicial det ermination; and (4) prejudice to the claimant. See id. at 556, 64. In the instant case, the district cou rt properly considered the factors and concluded that Juda was afforded due process in-7-

connection with the real-property forfeiture. Alth ough a twenty-month delay is significant, the three other factors support the di strict court’s determination that no constitutional violation occurred. Personal property issues In instructing the district court to “proceed to ev aluate the merits of Juda’s arguments as to why the property is not subject to forfeiture” if notice of the personal property forfeitures was constitutionally inadequate, we relied on Deninno , 103 F.3d at 86. Juda I , 1998 WL 317474, at **7. In Deninno , a panel of this court stated that “[u]psetting the forfeitu res because of the alleged procedural faults, when [claimant] appears to have no basis for the return of the property once the faults are remedied in new procee dings, would serve no purpose other than to waste limited judicial resources.” 103 F.3d at 86. After the filing of the order and judgment in Juda I , however, another panel issued Clymore v. United States , 164 F.3d 569 (10th Cir. 1999), which distinguished Deninno on the ground that “there was no statute of limitations problem apparent in Deninno ,” id. at 573. Clymore held that, in the Tenth Circuit, the consequence of constitutionally ineffe ctive notice is that an administrative forfeiture is “void and must be vacated,” because the statute of limitations has expired to prevent the refiling of a new forfeiture proceeding. 164 F.3d at 573. A void action is “‘nugatory and inef fectual so that nothing can cure-8-

it.’” Easley v. Pettibone Mich. Corp. , 990 F.2d 905, 909 (6th Cir. 1993) (quoting Black’s Law Dictionary 1573 (6th ed. 1990)). To obtain entitlement to th e contested property, the government must initiate a nd complete a new forfeiture proceeding. “Where obvious statute of limitations problems exis t, . . . the offending forfeiture should be vacated and the statute of lim itations allowed to operate, subject, of course, to any available government arguments against it.” Clymore , 164 F.3d at 574. The district court may adopt the Dennino approach and evaluate the merits of a procedurally-defective forfeiture o nly if there is no apparent limitations problem. See id. at 572 & n.4,5. The limitations provision for forfeiture proceeding s requires the commencement of proceedings “within five years afte r the time the alleged offense was discovered.” 19 U.S.C. § 1621. In thi s instance, Juda’s crimes were discovered in 1991. “[A]bsent the application of l aches or equitable tolling principles,” the limitations period has expired to prevent the filing of a new forfeiture proceeding. United States v. Marolf , 173 F.3d 1213, 1217-18 (9th Cir. 1999). Clymore dictates the resolution of this issue. Although w e cannot fault the district court’s conclusions, we must apply the lawin effect at the time we issue our decision. See First Nat’l Bank of Turley v. Fidelity & Deposit Ins. Co. , 1964 We note that the Ninth Circuit has adopted the Clymore rule. See United

States v. Marolf , 173 F.3d 1213, 1217 (9th Cir. 1999). However, th e Sixth Circuit has recently disagreed with it:

[W]e think that inadequate notices should be treate d as voidable, not void, and that the proper remedy is s imply to restore the right which [timely notice] would have conferred onthe claimant: the right to judicially contest the forfeiture and to put the Government to its proofs under a probable cause standard. Thus, the Government is not required to institute “new” forfe iture proceedings, and the applicable statute of limitations, § 1621, therefore has no bearing. United States v. Dusenbery , Nos. 98-4014, 98-4036, 2000 WL 19121, *5 (6th Cir

. Jan. 13, 2000). The Second Circuit has taken a pos ition similar to the Sixth Circuit’s. See Adames v. United States , 171 F.3d 728, 732-33 (2d Cir. 1999) (continued...) -9- F.3d 1186, 1188 (10th Cir. 1999). Moreover, “this panel cannot overturn the decision of another panel of this court. We are bo und by the precedent of prior panels absent en banc reconsideration or a supersed ing contrary decision by the Supreme Court.” United States v. Meyers , 200 F.3d 715, 720 (10th Cir. 2000) (citations omitted). Clymore not only addressed the statute of limitations issu e raised in this case, it explicitly distinguished Deninno . See id .164 F.3d at 573. Additionally, the Clymore panel stated that any “broader reading of Deninno to the effect that constitutionally defective notice of a forfeiture m erely renders the subsequent forfeiture voidable rather than void would be contrary to our [prior case law]. Id. at 573, n.5. 44 (...continued)

(upholding a defective forfeiture where the statute of limitations had expired, but defendant had admitted in plea agreement that all o f his assets were subject to forfeiture); Boero v. DEA , 111 F.3d 301, 305-07 (2d Cir. 1997) (vacating forfeiture due to inadequate notice and requiring d istrict court to entertain judicial forfeiture proceeding notwithstanding apparent expi ration of statute of limitations). The First Circuit, in an unpublishedcase, overlooked inadequate notice where the claimant had no merits defense, bu t declined to express an opinion on whether it would reach the same result i f the statute of limitations had expired. United States v. Gagliardi , No. 98-1078, 1999 WL 1338351, *4 & n.7 (1st Cir. June 24, 1999) (unpublished). -10- Under the dictates of Clymore , we vacate the forfeitures of Juda’s personal property and again remand the matter to the distric t court. On remand, the district court is to determine whether the government has a valid argument against the operation of the statute of limitations. If the go vernment has no such argument, the forfeited personal property, or its monetary eq uivalent, should be returned to Juda.

CONCLUSION The district court’s ruling concerning the forfeitu re of the proceeds from Juda’s real property is AFFIRMED. The court’s ruli ng on the forfeiture of Juda’s personal property is REVERSED and REMANDED for further proceedings consistent with this order and judgment. Juda’s mo tion for a limited remand is
DENIED as moot.-11- Entered for the Court

Bobby R. Baldock Circuit Judge