October 11, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1160
UNITED STATES,
Appellee,
v.
BRYON S. MISEPH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Cyr, Boudin and Lynch,
Circuit Judges.
Bryon Miseph on brief pro se.
Donald K. Stern, United States Attorney, and C. Jeffrey Kinder,
Assistant United States Attorney, on brief for appellee.
Per Curiam. In October 1993, defendant Bryon Miseph was
sentenced to a combined 100-month prison term following his
guilty plea to cocaine and firearms offenses. Nearly
fourteen months later, he filed a motion under Fed. R. Crim.
P. 41(e) for the return of some eighteen firearms that had
been taken from his residence following his arrest--claiming
that the items had been unlawfully seized and had been
unrelated to his criminal activity. In response, the
government stated that, after notice to all known interested
parties had been provided and no claim had been filed, the
property had been administratively forfeited and subsequently
destroyed. Evidence attesting to the declaration of
forfeiture and the destruction was provided. The district
court denied the motion the following day--finding that the
property was no longer in existence and that, in any event,
it had been "lawfully seized and forfeited." Defendant now
appeals, claiming that he never received notice of the
forfeiture. He notes in this regard that, pursuant to court
order, he had been confined under "house arrest" in his
parents' residence in East Falmouth, Massachusetts during the
relevant period.
The issue before us is a narrow one. The government
acknowledges that a district court has jurisdiction to
entertain collateral due process attacks on administrative
forfeitures. See, e.g., United States v. Giraldo, 45 F.3d
509, 511 (1st Cir. 1995) (per curiam) (listing cases). It
also acknowledges that the destruction of the property in
question here did not render such an action moot--suggesting
that the motion could have been treated as an "equitable
claim for damages," see, e.g., Rufu v. United States, 20 F.3d
63, 65 (2d Cir. 1994); United States v. Martinson, 809 F.2d
1364, 1366-69 (9th Cir. 1987), and noting that a civil action
for damages would in any event lie, see, e.g., Mora v. United
States, 955 F.2d 156, 160 (2d Cir. 1992); cf. United States
v. Mosquera, 845 F.2d 1122, 1126 (1st Cir. 1988) (per
curiam). The government simply contends that, as the Rule
41(e) motion was properly denied, we should affirm without
prejudice to defendant filing a separate action for
appropriate relief.
We agree. Defendant has raised his due process
challenge for the first time only on appeal. As such, the
district court's ruling obviously cannot be considered an
abuse of discretion based upon the record then before the
court. To be sure, it might have been better practice had
the district court afforded defendant an opportunity to
address the government's opposition before ruling. Yet
defendant (who claims that he first learned of the forfeiture
and destruction by reading such opposition) could have
presented his due process challenge to the lower court by way
of a timely motion for reconsideration, but failed to do so.
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Under these circumstances, we think it appropriate to affirm
the district court's order, albeit without prejudice to
defendant's assertion of his due process claim in an
independent action under 28 U.S.C. 1331.
Affirmed.
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