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Rodriguez-Claudio v. United States

Court: Court of Appeals for the First Circuit
Date filed: 1997-06-06
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                    [NOT FOR PUBLICATION]

               UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 96-1886

                FRANCISCO RODRIGUEZ-CLAUDIO,

                    Plaintiff, Appellant,

                             v.

                  UNITED STATES OF AMERICA,

                    Defendant, Appellee.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

  [Hon. Juan M. Perez-Gimenez, Senior U.S. District Judge]

                                        

                           Before

                    Torruella, Chief Judge
               Campbell, Senior Circuit Judge,
                 and Boudin, Circuit Judge.

                                        

Francisco Rodriguez-Claudio on brief pro se.
Guillermo  Gil, United  States  Attorney,  Nelson Perez-Sosa  and
Jacque line D. Novas, Assistant United States  Attorneys, on brief for
appellee.

                                        

                        JUNE 6, 1997
                                        


          Per Curiam.  Appellant Francisco Rodriguez  Claudio

appeals from the district court's dismissal of his  complaint

for  the  return of  forfeited  property.    After  carefully

reviewing 
                     the 
                         record 
                               and 
                                   the parties' briefs, we agree with the

reasoning 
                     of 
                       the 
                           district court as set forth in its Opinion and

Order, dated May 30, 1996.  We add the following comments.

          1.   A 
                            collateral 
                                       attack 
                                             on 
                                                a 
                                                  forfeiture, such as the

one at  hand,  "necessarily presents  a claim  for  equitable

relief." 
                     
                     Uni
                        ted States v. Woodall, 12 F.3d 791, 793 (8th Cir.

1993).  As such, a  court's decision to grant such relief  is

governed 
                    by 
                      equitable 
                                principles.  See Linarez v. United States

Dep't 
                 of 
                   Justice, 
                            2 
                              F.3d 
                                   208, 213 (7th Cir. 1993); 3 C. Wright,

Federal Practice and Procedure  S 673, at 762 (2d ed.  1982).

"Thus, 
                  the 
                      individual 
                                . 
                                  . . must show that he had an inadequate

legal remedy and  that irreparable injury will result if  the

court does not act."  Id.

          Appellant received proper notice of the  forfeiture

proceedings by  February 1993, prior  to having his  property

actually  forfeited.  He  thus could have  filed a claim  and

posted 
                  a 
                    bond, 
                         thereby 
                                 initiating judicial proceedings.  See 19

U.S.C. S 1608;  21 C.F.R. S 1316.76(b).   By deciding not  to

pursue  this  legal  remedy,  appellant  is  foreclosed  from

obtaining 
                     equitable 
                              relief now.  That is, appellant cannot show

that he had  an inadequate remedy at  law "for he could  have

sought  recovery of  his  [property]  in  the  administrative

                             -2-


proceeding by raising the very same claims that he raised  in

his complaint in the district court."  Linarez, 2 F.3d at 213

(where  claimant received  actual  notice of  the  forfeiture

proceedings which  explained how to file  a claim and post  a

bond, but declined  to follow these procedures, he could  not

pursue his constitutional claims in a collateral action).

          2. 
                         
                         Because 
                                 appellant failed to present the question

concerning 
                      excessive 
                               fines below, he has waived it.  See United

States
                  
                  v. 
                     Pal
                        mer, 956 F.2d 3, 6 (1st Cir. 1992).  We therefore

decline to consider it.

          The judgment of the district court is affirmed.

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