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
Per Curiam. Nearly twenty years ago, when appellant
Erick Flores-Rivera was arrested on federal drug charges, the
United States Customs Service1 took possession of his new Jeep
Cherokee, $1,903 in cash, and other items.2 Pursuant to a plea
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 property3 and
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
1
The Customs Service is now known as the United States
Customs and Border Protection ("CBP") section of the Department of
Homeland Security.
2
The parties agree that a Puerto Rico driver's license and
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.
3
The Jeep was sold by the government in 1999 for $6,400, and
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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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 1999.4 In
4
In this appeal, Flores's counsel raised the question of how
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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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."5 No hearing has ever been held.6 Although the
5
In its Informative Motion dated May 18, 2006, the government
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."
6
We note that, on July 28, 1999, the district court held a
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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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
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.
7
The government did not report whether the proceeds from
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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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.8 When the court issued its final order three weeks later,
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
8
Our order stated, in relevant part:
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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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 2009.9 Further delay is
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
9
In its May 2006 Informative Motion to the district court,
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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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.
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