FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 4, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-3074
v. (D.C. No. 5:10-CR-40014-JTM-1)
(D. Kansas)
RITO VASQUEZ-GARCIA,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
_________________________________
Rito Vasquez-Garcia, proceeding pro se, appeals the district court’s denial of
his motion seeking to recover weapons and ammunition seized from his home in
2009 by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The
district court denied Mr. Vasquez-Garcia’s motion as being untimely and thus barred
under the applicable statute, 18 U.S.C. § 983. We affirm.
I. BACKGROUND
On June 17, 2009, ATF agents seized four firearms and ammunition from Mr.
Vasquez-Garcia’s prior residence. ATF began administrative forfeiture proceedings
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
pursuant to 18 U.S.C. § 924(d). On June 29, 2009, ATF notified Mr. Vasquez-Garcia
of his right to contest the forfeiture in district court by filing a Claim of Ownership
with ATF within thirty-five days or by filing a Petition for Remission or Mitigation
of Forfeiture within thirty days. On July 2, 2009, July 9, 2009, and July 16, 2009,
ATF published notice of the seizure and pending administrative proceeding in the
Wall Street Journal. Although the government indicted Mr. Vasquez-Garcia on
February 10, 2010, it later moved to dismiss the indictment without prejudice. The
court granted the motion and closed the case on March 18, 2015.
Over six years after ATF notified Mr. Vasquez-Garcia of his right to contest
forfeiture of the firearms and ammunition, on August 24, 2015, he filed a Petition for
Remission or Mitigation of Forfeiture. ATF denied the petition on August 31, 2015,
because the property had already been forfeited to the United States.
On December 2, 2015, Mr. Vasquez-Garcia filed a motion to set aside the 2009
ATF administrative forfeiture of the firearms and ammunition, claiming to be an
innocent owner of the property. In response, the government asserted that the motion
was untimely pursuant to 18 U.S.C. § 983(e)(3). In his reply, Mr. Vasquez-Garcia did
not challenge the timeline asserted by the government but argued he was an innocent
owner of the property. Mr. Vasquez-Garcia also alleged he lacks the skills and ability
to raise the relevant objections to the seizure and does not speak English. On
March 15, 2016, the district court denied Mr. Vasquez-Garcia’s motion to set aside
forfeiture as untimely. Mr. Vasquez-Garcia also filed a motion for leave to appeal in
forma pauperis (IFP), which the district court denied because Mr. Vasquez-Garcia
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failed to raise a legally non-frivolous argument. Mr. Vasquez-Garcia has renewed his
request for IFP status before this court on appeal. After our independent examination
of the record, we affirm. Mr. Vasquez-Garcia’s motion was untimely and thus barred
under the applicable statute. In addition, we deny Mr. Vasquez-Garcia’s request to
proceed IFP.
II. DISCUSSION
We review questions of law relating to a motion for return of seized property
de novo. United States v. Shigemura, 664 F.3d 310, 312 (10th Cir. 2011). Mr.
Vasquez-Garcia argues that because the indictment against him was dismissed, he is
an innocent owner of the property seized by the ATF, and the district court therefore
erred by not returning the property to him. The plain statutory language defeats this
claim.
18 U.S.C. § 983(e) provides “the exclusive remedy for the recovery of
administratively forfeited property.” United States v. Tinajero-Porras, 378 F. App’x
850, 851 (10th Cir. 2010) (unpublished). When a party claims it “did not know or
have reason to know of the seizure within sufficient time to file a timely claim,” the
party may file a motion to set aside forfeiture. 18 U.S.C. § 983(e)(1)(B). But such a
motion must be filed “not later than 5 years after the date of final publication of
notice of seizure of the property.” 18 U.S.C. § 983(e)(3). The district court correctly
determined Mr. Vasquez-Garcia’s motion is barred by this limitations period.
The facts in this case are straightforward. On July 2, 2009, July 9, 2009, and
July 16, 2009, ATF published notice of the seizure and pending administrative
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proceeding. As a result, the latest date for filing a timely motion for return of
property was July 17, 2014. Mr. Vasquez-Garcia filed the motion to set aside
forfeiture on December 2, 2015, well past the end of the limitations period.
Mr. Vasquez-Garcia does not dispute this timeline. And even assuming
without deciding that the statute of limitations in § 983 is subject to equitable tolling,
Mr. Vasquez-Garcia has alleged no facts that could establish he diligently pursued
his claim or that some extraordinary circumstance prevented him from timely filing.
Cobrar v. DEA, No. 12 Civ. 7415(KPF), 2014 WL 1303110, at *9 (S.D.N.Y. Mar.
31, 2014).
III. CONCLUSION
For the reasons explained above, we agree with the district court that Mr.
Vasquez-Garcia’s Petition for Remission or Mitigation of Forfeiture is barred by the
applicable statute of limitations. His appeal is therefore denied, and the district
court’s order is AFFIRMED. Mr. Vasquez-Garcia’s request to proceed IFP on appeal
is also DENIED, and he is accordingly reminded of his obligation to pay the filing
fee in full.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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