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
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).
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