NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1936
UNITED STATES,
Appellee,
v.
BILLY RAY MCDOWELL, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Billy Ray McDowell, Jr. on brief pro se.
Guillermo Gil, United States Attorney, and Joseph J. Frattallone,
Assistant United States Attorney, on brief for appellee.
June 9, 1997
Per Curiam. Billy Ray McDowell was convicted of drug
trafficking offenses in June 1988. In March 1996, he moved
in the district court for the return of $4000 in cash, a
cellular telephone, and a briefcase containing documents,
each of which he claims were seized from him at the time of
his arrest in February 1988; according to the government,
these items were later administratively forfeited. See 21
U.S.C. 881 (providing for forfeiture of property or money
used to facilitate or traceable to a drug offense); 19 U.S.C.
1607-09 (outlining administrative forfeiture procedure for
items worth $500,000 or less). In his collateral attack,
McDowell claims that he received no notice of the forfeitures
and alleges that they violated his right to due process and
should be invalidated. See United States v. Giraldo, 45
F.3d 509, 511-12 (1st Cir. 1995) (per curiam).
The short response submitted by the government in the
district court was apparently intended to suggest that the
forfeitures were in fact valid. But to support this
suggestion, the government simply asked the district court
to "take notice" of the fact that the cash and telephone had
been "administratively forfeited," as evidenced by
declarations of forfeiture for these two items, which merely
recited that notice had been sent to all interested persons.
The government also reported that it had neither record nor
recollection of a seized briefcase.
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The district court denied the defendant's motion, citing
the "facts" provided by the Government--facts pertaining to
the administrative forfeiture proceedings and not the merits
of the forfeiture. The defendant now appeals. The parties
repeat the arguments advanced below, with the government
adding the contention that the district court in Puerto Rico
lacked jurisdiction to decide the motion because the property
was seized in Texas.
1. With respect to the cell phone and cash, the
defendant appears to have an almost hopeless case. He
concedes that the seizure occurred at the time of the arrest
that led to his conviction, as he attempted to open an
airport locker which he thought contained cocaine. See
United States v. McDowell, 918 F.2d 1004, 1006 (1st Cir.
1990). The facts recited in the first appellate opinion in
this case also reveal that McDowell carried $4000 cash, the
exact amount of the delivery fee for the drugs, separately
from other funds, and that he repeatedly communicated with
coconspirators by phone. McDowell, 918 F.2d at 1006.
On the surface, the government's case looks extremely
strong. See United States v. One Lot of U.S. Currency, 103
F.3d 1048, 1053-54 (1st Cir. 1997) (forfeiture proper if
government shows probable cause to believe that seized
property has a sufficient nexus to illegal activity, and
defendant fails to rebut); United States v. One Lot of U.S.
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Currency, 927 F.2d 30, 32 (1st Cir. 1991) (probable cause to
believe that cash and car were forfeitable where cash amount
equaled the promised purchase price in a sting transaction
and the defendant drove the car to the airport meeting place,
apparently planning to use it to transport the purchased
drugs). Nothing in the defendant's papers explains how he
expects to avoid forfeiture, even if the prior administrative
proceedings were procedurally defective.
Nevertheless, this is only our own reconstruction; the
government has not made, and the defendant has not answered,
such a claim; and there is no reason why the government
should not turn square corners even if it is defending
against a dubious collateral attack on a forfeiture. Here,
the record contains no response to the defendant's allegation
that he had not received adequate notice, which in some cases
might negate a forfeiture's validity, Giraldo, 45 F.3d at
512, and the government did not attempt to show that the
property was plainly forfeitable, giving the defendant an
opportunity to answer.
There is some conflict in the law as to who needs to
show what when the defendant makes a claim like the one
before us.
Compare United States v. Deninno, 103 F.3d 82, 85-86 (10th
Cir. 1996) with Boero v. DEA, 111 F.3d 301, 306 (2d Cir.
1997). We see no reason to lay down any general rule. But
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in the present case we think that an adequate answer needs to
be provided by the government--whether procedural or
substantive--before defendant's motion may be summarily
denied.
2. As to McDowell's further allegation that a
briefcase containing documents was improperly forfeited, the
government says that it has no record of such an item. But
it points to no inventory list or similar evidence; nor does
it provide any other explanation for the divergence between
the defendant's version of the events and the government's
records.
The government may have an excellent laches defense
since the defendant waited eight years to file a motion that
could have been made promptly; this delay might help explain
the gaps in the government's evidence. Cf. Angel-Torres v.
United States, 712 F.2d 717, 719-20 (1st Cir. 1983) (motion
for return of property subject to equitable principles).
However, as the government did not assert laches below and
the district court made no relevant findings, we decline to
affirm the denial of the motion with respect to the briefcase
on that ground.
3. The government belatedly says on appeal that the
defendant brought his claim in the wrong court. We do not
think that this minimally briefed case is a vehicle for us to
determine where a post-conviction motion for return of
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property should be made if the property seizure and the
related criminal trial occurred in different districts--a
question on which other circuits disagree. Compare United
States v. Giovanelli, 998 F.2d 116, 118-19 (2d Cir. 1993)
(venue proper in prosecuting district) and Thompson v.
Covington, 47 F.3d 974, 975 (8th Cir. 1995) (per curiam)
(venue proper only in prosecuting district) with United
States v. Garcia, 65 F.3d 17, 20-21 (4th Cir. 1995) (venue
proper only in seizing district). While the district court
is free to hear the government's argument on this point, it
may be simpler to assume jurisdiction arguendo, assuming that
the government has an adequate substantive or procedural
answer to defendant's claim. In any event, we decline
ourselves to affirm the dismissal based on a venue argument
never presented to the district court.
The district court's judgment is vacated and the matter
remanded for further proceedings consistent with this
opinion.
It is so ordered.
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