United States Court of Appeals

For the First Circuit

No. 08-1462

ISRAEL SANTIAGO-LUGO,

Plaintiff, Appellant,

v.

UNITED STATES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Boudin, Lipez and Howard,

Circuit Judges.

Israel Santiago-Lugo on brief pro se.

Anita J. Gay on motion for summary dismissal for respondent.

August 14, 2008
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Per Curiam. Plaintiff-appellant Israel Santiago-Lugo

appeals from the district court's dismissal of his claim pursuant

to Fed. R. Crim. P. 41(g) for the return of property as barred by

the statute of limitations. "We review de novo a district court's

order granting a Rule 12(b)(6) motion based on statute of

limitations grounds." Lopez-Gonzalez v. Municipality of Comerio,

404 F.3d 548, 551 (1st Cir. 2005). We have not had occasion

previously to rule on the question of what the statute of

limitations is for Rule 41(g) claims, but all the circuits that

have considered the issue have held that the six-year statute of

limitations under 28 U.S.C. § 2401(a) applies to civil actions for

the return of property. See Bertin v. United States, 478 F.3d 489,

493 (2d Cir. 2007) (collecting cases). We join those circuits in

holding that the six-year limitations period under § 2401(a)

applies to Rule 41(g) claims. We also concur with those circuits

which have held that in circumstances like this, where "there has

been a related criminal proceeding but no civil forfeiture

proceeding, the cause of action accrues at the end of the criminal

proceeding." Id.; see United States v. Sims, 376 F.3d 705, 709 (7th

Cir. 2004); United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1212

(10th Cir. 2001).

Santiago-Lugo's claim for return of seized but not

forfeited property was initially presented in his motion filed on

July 11, 2005. He was sentenced and judgment entered more than six
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years earlier, on April 17, 1996. Even if the conclusion of

criminal proceedings occurs after the defendant's direct appeal is

resolved, that occurred here on February 3, 1999, still more than

six years before Santiago-Lugo filed his Rule 41 motion. See

Rodriguez-Aguirre, 264 F.3d at 1214 n. 15 (declining to determine

whether the conclusion of criminal proceedings occurs after the

trial and sentencing or only after the appeals process has run its

course).

Santiago-Lugo argues (as he did in the district court)

that the statute of limitations did not begin to run until August

12, 2005, the date on which the district court granted the

government's Rule 36 motion to amend the judgment to include the

forfeiture order. However, the rationale for the accrual date

occurring when the criminal proceedings have concluded is that

"once the criminal proceedings or the civil forfeiture proceedings

have concluded without the property having been forfeited . . . ,

the claimant knows that he has a present right to its return."

Sims, 376 F.3d at 708. In this case, Santiago-Lugo had such

knowledge at the time that judgment entered, notwithstanding the

inadvertent omission of the forfeiture order. As we stated in our

June 15, 2006 judgment affirming the district court's Rule 36

correction of sentence, Santiago-Lugo had notice of the forfeiture

when the preliminary and final orders of forfeiture entered (in

1996). Therefore, he was aware at least by October 1996 (when the
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final forfeiture order entered) of the seized items that were not

forfeited, and could have asserted at that point his right to

return of those items.

Santiago-Lugo also argues that he first filed his motion

for return of property on April 21, 1998, within the six-year

statute of limitations and that equitable tolling should apply to

preserve his present claim. Even if the April 1998 motion could be

construed as a Rule 41 motion for returned of seized but not

forfeited property, that motion was denied, as was Santiago-Lugo's

motion to reconsider. And he did not appeal from those denials. 

Even if the period during which Santiago-Lugo pursued that

challenge to the seizure of his property tolled the limitations

period, it would have tolled it only for three months, from April

1998 when the motion was filed until July 1998, when the district

court denied Santiago-Lugo's motion to reconsider. That would not

be sufficient to extend the limitations period to July 2005.

Because we agree with the district court that the statute of

limitations bars Santiago-Lugo's Rule 41(g) claim, we do not reach

the substantive arguments that he makes in support of that claim.

The government's motion for summary affirmance is

granted. See 1st Cir. R. 27.0 (c).