United States Court of Appeals

For the First Circuit

No. 09-1131

UNITED STATES OF AMERICA,

Appellee,

v.

ERICK FLORES-RIVERA,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

 Lynch, Chief Judge, 

Selya and Lipez, Circuit Judges.

Vivianne M. Marrero-Torres, Assistant Federal Public Defender,

with whom Joseph C. Laws, Federal Public Defender, was on brief,

for appellant.

Germán Rieckehoff, Assistant United States Attorney, with whom

Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson

Pérez-Sosa, Assistant United States Attorney, were on brief, for

appellee.

April 6, 2010
 The Customs Service is now known as the United States 1

Customs and Border Protection ("CBP") section of the Department of

Homeland Security.

 The parties agree that a Puerto Rico driver's license and 2

a social security card also were seized. Flores contends that a

Rolex watch also was taken from him, and the record also contains

references to the seizure of a wallet and a beeper. 

 The Jeep was sold by the government in 1999 for $6,400, and 3

it is therefore the proceeds of the sale, rather than the vehicle,

that are now at issue. In addition, as described infra, Flores

claims he should be credited with an amount greater than $6,400.

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Per Curiam. Nearly twenty years ago, when appellant

Erick Flores-Rivera was arrested on federal drug charges, the

United States Customs Service took possession of his new Jeep 1

Cherokee, $1,903 in cash, and other items. Pursuant to a plea 2

agreement, Flores pled guilty to two counts in January 1991, and

the court imposed a term of imprisonment of 240 months and a

$20,000 fine. Eight years later, in 1999, the government conceded

that Flores was entitled to the return of the seized property

because it had been improperly forfeited without notice.

Remarkably, however, as a result of procedural errors and

misjudgments by the district court, abetted by the government's own

conduct and inaction, Flores is still without his property and 3

there has been no proper determination that it may lawfully be

withheld from him. The most glaring of these missteps was the one

challenged in this appeal: the district court's sua sponte ruling

in December 2008 that the property should be returned but, at the
 In this appeal, Flores's counsel raised the question of how 4

much Flores is owed for the Jeep in a motion filed about a week

before oral argument. Although the government points out in its

supplemental brief that arguments not made in a party's initial

brief ordinarily are waived, it acknowledges that an exception is

warranted here. Indeed, in the unusual circumstances of this case,

which we recount infra, the government arguably had an obligation

to bring this valuation issue to our attention. Given the

documents in the record, it had to know that the valuation question

was unresolved. That fact makes its initial resolve to oppose this

appeal all the more perplexing. 

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same time, summarily ordering that the funds be applied to Flores's

criminal fine.

At oral argument, the government tried to defend the

decision of the district court as not plain error. Subsequently,

it sensibly changed its position and acknowledged that the case

should be remanded so that the district court can "properly

determine" the amount that should be returned to Flores, which also

would give the court, as the government finally put it, "the

opportunity to comply with the notification requirements and the

procedures for enforcement of criminal fines in 18 U.S.C. §§[]

3572, 3611-15." Both the amount owed to Flores for his property

and whether that entire sum may be immediately applied to his fine

are difficult issues of considerable consequence to him. The Jeep

was new when it was seized, and Flores asserts that it was worth

$23,000 at that time. A customs employee reported in a 2007

declaration that the vehicle was transferred from storage in June

1992 and used by the agency for almost seven years – without

compensation to Flores – until it was sold for $6,400 in 1999. In 4
 In its Informative Motion dated May 18, 2006, the government 5

requested "additional proceedings to determine the forfeitability

of the[] properties," and stated that "a hearing may be required in

this case because there is a discrepancy between Flores-Rivera and

the United States Custom Service as to the number of items seized

and administratively forfeited."

 We note that, on July 28, 1999, the district court held a 6

hearing on a motion by Flores seeking certification to file an

untimely motion under 28 U.S.C. § 2255 to vacate, set aside or

correct his sentence. It appears that no attention was given in

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addition, Flores entered into a contract with the Bureau of Prisons

(BOP) to repay his fine in installments, see infra, but the

government contends that the district court nonetheless has the

authority to order full payment at any time. 

Given the history of this case, we are dismayed that the

government chose initially to defend the district court's judicial

improvisation, which denied Flores statutory and procedural due

process rights designed to protect against just such unexamined

deprivations of property. By the time this appeal was filed,

Flores already had endured indefensible delays in obtaining relief.

In 1999, we vacated the denial of his 1997 pro se motion seeking

return of his property and remanded for further proceedings

because, as the government acknowledged, Flores had not received

adequate notice of the forfeiture proceedings. Not until May 2006

did the government ask the district court to hold a hearing – a

request made only after appellant sought mandamus and we directed

the government to reply to his petition and "propose or implement

a course of action." No hearing has ever been held. Although the 5 6
that proceeding to our remand order, which had been entered on the

district court docket on June 3. Meanwhile, Flores had been

charged in 1991 in a separate criminal case, see United States v.

Flores-Rivera, 56 F.3d 319 (1st Cir. 1995), and the docket in that

case shows that he was represented by counsel for post-conviction

proceedings related to his sentencing that were occurring between

2000 and 2005. At a re-sentencing hearing on April 5, 2004, Flores

was sentenced to a total of 408 months' imprisonment to be served

consecutively to the term of imprisonment imposed in the criminal

case underlying his forfeiture claim. We affirmed that sentence in

an unpublished decision on July 29, 2005, and our docket in the

return-of-property mandamus action shows that Flores's

representation by counsel terminated on that date. Although the

criminal matters overlapped in time with the pendency of his motion

for return of property, the forfeiture-related filings were all pro

se. We found no indication on the district court docket that the

court or counsel considered our 1999 remand before Flores's motion

for mandamus and the government's resulting May 2006 Informative

Motion.

The government did not report whether the proceeds from 7

the sale of the Jeep were deposited into the same account. As for

the other items allegedly seized, the government has no record of

the Rolex watch, and it reported that the agency was unable to

locate the driver's license and social security card. The

government's notice to the court did not mention the wallet. 

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government agreed during a status conference on August 2, 2006 to

return the property, it did not at that time know the location of

the items, including the cash seized at the time of Flores's

arrest. A year later, in August 2007, the government informed the

district court that the Jeep had been sold and the $1,903 in

currency had been deposited in the Treasury Department's Asset

Forfeiture Fund.7

Meanwhile, in October and December 2006, and in February

2007, Flores filed pro se motions seeking the appointment of

counsel for the forfeiture proceedings. Flores claims to have
 Our order stated, in relevant part: 8

In response to petitioner's latest request for mandamus

relief, the government has proposed a final disposition,

and petitioner has opposed that disposition in part. In

these circumstances, we think the district court should

address the government's proposal and the petitioner's

opposition and endeavor to bring this litigation to a

final conclusion.

In his opposition, Flores had challenged the amount of compensation

proposed by the government for the Jeep in light of its much higher

value at the time it was seized.

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learned for the first time in 2008 that counsel had in fact been

appointed for him in July 2006. The appointed counsel appeared at

the August 2006 status conference, but there is no evidence that

Flores was told of the appointment, that the appointed counsel ever

met with Flores, or that he took any other action on Flores's

behalf.

On November 12, 2008 – following yet another pro se

request by Flores for mandamus relief – we directed the district

court to address the discrepancies in the value of the forfeited

items. When the court issued its final order three weeks later, 8

however, it did not discuss Flores's contentions concerning the

value of the returned property. Instead, disregarding the

procedures applicable to the collection of delinquent criminal

fines, see 18 U.S.C. § 3612, and without a motion from the

government, the court simply ordered that the proceeds from the

Jeep and the $1,903 in currency be deposited and credited toward

his fine. Flores filed a pro se notice of appeal and, on January
In its May 2006 Informative Motion to the district court, 9

the government noted that Flores was "free to request from the

Court the appointment of counsel" and that "the Court may wish to

appoint counsel given the complexity of the possible forfeiture

issues." It thus implicitly suggested that providing Flores with

counsel would be advisable and cited case law for the proposition

that complex forfeiture issues may warrant appointment of counsel.

See United States v. Giraldo, 45 F.3d 509, 512 (1st Cir. 1995) and

United States v. Chambers, 192 F.3d 374, 378 (3d Cir. 1999). As

noted above, the court took the suggestion and appointed counsel in

July 2006, though it appears that counsel contributed little or

nothing to the resolution of his case. 

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16, 2009, the district court granted his motion for new counsel and

appointed the Federal Public Defender to represent him. 

Despite the factual and procedural complexity of this

case, Flores was effectively left to represent himself until the

public defender was appointed in January 2009. Further delay is 9

unacceptable, and his claims must now be given serious, careful

attention. In addition to the dispute over the appropriate value

for the Jeep, Flores invokes the contract he signed in February

2003 to participate in the BOP's Inmate Financial Responsibility

Program (IFRP). See 28 C.F.R. §§ 545.10-545.11. He agreed to pay

$25 quarterly, beginning in June 2003. Records submitted by Flores

and the government indicate some confusion about Flores's

outstanding debt and, as noted above, a question of law exists

concerning the district court's authority to bypass the contract

and immediately order full payment of the fine.

On remand, the district court should promptly conduct a

hearing, follow the applicable statutory procedures, and otherwise
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provide Flores with the long-delayed process to which he is

entitled. It is time for this embarrassing saga to end.

The judgment of the district court is vacated, and the

case is remanded for further proceedings consistent with this

opinion.