concurring:
I agree that the judgment must be reversed, but write separately to explain why the five-year statute of limitations that applies to government forfeiture proceedings is relevant to Marolf s action.
Marolf was entitled to notice so that he could timely file a claim and have a hearing on probable cause and ownership. Because he did not get proper notice, he was deprived of that opportunity. For this reason, the forfeiture is void and cannot stand. See Clymore v. United States, 164 F.3d 569, 573 (10th Cir.1999) (voiding defectively-noticed forfeiture); Muhammed v. DEA, Asset Forfeiture Unit, 92 F.3d 648, 654 (8th Cir.1996) (same); Barrera-Montenegro v. United States, 74 F.3d 657, 661 (5th Cir.1996) (same). Nevertheless, the government could go back to square one by providing proper notice and recommencing forfeiture proceedings-so long as it does so within the statutory period. Under these circumstances, a court could well do equity by going directly to the merits and holding the hearing to which the claimant would have been entitled had notice been properly given to begin with. The problem in this case is that the period of limitations has passed. As Marolf argues, this means that the government cannot go back to square one because it is barred from instituting any forfeiture proceeding by the five-year statute of limitations. See 19 U.S.C. § 1621. Thus, since the forfeiture is void and the government can no longer do anything about it, Marolf is entitled to return of his property (or its value).1
The government points out that Rule 41(e) motions are treated as proceedings in equity when there is no criminal action pending, see United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987), and argues that affording Marolf a judicial hearing on the merits of forfeiture is the appropriate remedy in view of the fact that this is the remedy to which Marolf would have been entitled had notice been proper. It urges us to follow the Second Circuit’s approach in Boero v. DEA 111 F.3d 301 (2d Cir.1997), where the court affirmed the district court’s holding that the administrative forfeiture of the claimant’s property was improper because of inadequate notice, but reversed the order dismissing Boero’s complaint and directing the DEA *1221to recommence administrative forfeiture proceedings. The court held that the district court’s relegation of Boero to an administrative remedy was improper because “when the government is responsible for a known claimant’s inability to present a claim, through the government’s disregard of its statutory obligation to give notice (or otherwise), a hearing on the merits is available in the district court.” Id. at 306. In doing so, the court instructed the district court to consider Boero’s claim on the merits in spite of the fact that more than five years had elapsed since the alleged offense was discovery. From this, the government infers that a hearing on the merits is appropriate regardless of whether the statute of limitations has run in this ease. I do not see it this way. Nothing in Boero suggests that the court actually considered and ruled on the import of the statute of limitations. Unlike here, Boero did not seek return of his property because the forfeiture was void and the statute of limitations had run, but rather requested a judicial hearing on the merits of the forfeiture. See id., at 307 (“Boero’s remedy is to restore his right to seek a hearing in district court, a right he evidently wishes to exercise.”). Likewise, in United States v. Giovanelli, 998 F.2d 116 (2d Cir.1993), on which the government also relies, the court did not discuss the statute of limitations issue, nor did it have occasion to as it awarded the claimant return of his seized property without reaching that issue. Thus, Boero and Giovanelli do not necessarily conflict with Clymore, which is squarely on point. I therefore agree that we should join the Tenth Circuit in holding that a forfeiture without proper notice is void and when the statute of limitations has run, the forfeiture must be vacated unless other equitable considerations come into play. See Clymore, 164 F.3d at 574. They do not in this case, as the district court did not abuse its discretion in concluding that the government’s only argument, based on laches, did not bar Marolf from pursuing his Rule 41(e) motion.
. Although the statute of limitations for the government to institute forfeiture proceedings is five years, claimants have six years in which to bring a Rule 41(e) motion for return of property. See 28 U.S.C. § 2401. It is because of this discrepancy that the problem in this case arose.