United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 8, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30429
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL WRIGHT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:
Michael Wright, federal prisoner # 24493-034, appeals the
district court’s dismissal as time-barred of his FED. R. CRIM.
P. 41(e) (2002) motion challenging the forfeiture of $16,423.
The money was seized when Wright was arrested in February 1995 in
the New Orleans International Airport and was declared forfeited
on August 9, 1995, following Wright’s conviction on drug charges
in May 1995 in Alabama. In August 1995, Wright was sentenced to
360 months of imprisonment.
In 1997, Wright forwarded letters to Drug Enforcement Agency
offices in New Orleans and Virginia and a letter to the bank in
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New Orleans in which the $16,423 was deposited. In August 1997,
he received a letter from the senior vice president of the bank
explaining that the money had been deposited in February 1995,
that a check had been issued in exchange for the money, and that
the check had been deposited in the Federal Reserve Bank and had
cleared that same month. The bank vice president instructed
Wright to contact a DEA agent in Metairie, Louisiana, for more
information. The DEA office in Virginia wrote to Wright in
September 1997, stated that it could not locate Wright’s file
without a seizure number, and instructed Wright to contact the
DEA office in Metairie for such information.
In April 2002, Wright filed his Rule 41(e) motion
challenging the forfeiture on the grounds that he received
insufficient notice.1 The Government opposed the motion, arguing
that it was barred by the statute of limitations and by the
doctrine of laches. The district court concluded that Wright had
six years from the date of the forfeiture on August 9, 1995, to
file his Rule 41(e) motion, that the motion filed in April 2002
was untimely, and that the limitations period was not equitably
tolled given the four year and ten month delay between the time
he was told how to obtain additional information about the
forfeiture and the time he filed his motion. Wright argues that
1
Wright filed his motion in the Southern District of
Alabama, which transferred the case to the Eastern District of
Louisiana under Rule 41(e)’s language that such a motion should
be brought “in the district court for the district in which the
property was seized.”
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the limitations did not begin to run until he became aware of the
forfeiture or would have become aware of the forfeiture through
the exercise of due diligence, which he contends occurred in
1997.
The district court correctly determined that the six-year
statute of limitations in 28 U.S.C. § 2401(a) applies. See
Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000); see
also United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1209-10
(10th Cir. 2001), and cases cited therein. Under 28 U.S.C.
§ 2401(a), “every civil action commenced against the United
States shall be barred unless the complaint is filed within six
years after the right of action first accrues.” We have not yet
determined when a Rule 41(e) right of action accrues. See
Clymore, 217 F.3d at 373-74.
We agree with and now adopt the reasoning of the Tenth and
Fourth Circuits with respect to this issue. “The accrual date is
the date on which [the claimant] was on reasonable inquiry notice
about the forfeiture, i.e., the earlier of the following: when he
has become aware that the government had declared the property
forfeited, or when an inquiry that he could reasonably have been
expected to make would have made him aware of the forfeiture.”
United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1211 (10th
Cir. 2001); United States v. Minor, 228 F.3d 352, 359 (4th Cir.
2000); see also United States v. Duke, 229 F.3d 627, 630 (7th
Cir. 2000) (accrual date is when the claimant discovered or by
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exercise of due diligence would have discovered the forfeiture);
Polanco v. DEA, 158 F.3d 647, 654 (2d Cir. 1998) (accrual date is
when the claimant discovered or had reason to discover that his
property had been declared forfeited without sufficient notice).
Although the conclusion of the forfeiture proceedings, as
the date of the alleged violation giving rise to the Rule 41(e)
action, is the earliest possible accrual date triggering the
limitations period, see Rodriguez-Aguirre, 264 F.3d at 1210, the
district court did not determine when Wright had reasonable
inquiry notice of the forfeiture, i.e., “when he has become aware
that the government had declared the property forfeited, or when
an inquiry that he could reasonably have been expected to make
would have made him aware of the forfeiture.” Id. at 1211. We
cannot discern from the current record whether Wright should have
made inquiries before his letters in 1997 or whether such
inquiries would have made him aware of the forfeiture. The
district court’s judgment is VACATED and the case is REMANDED for
such a determination.
If the district court determines that Wright’s Rule 41(e)
motion was filed within the six year limitations period, the
court should then determine whether the motion may nonetheless be
barred under the doctrine of laches. See Clymore, 217 F.3d at
376-77; Geyen v. Marsh, 775 F.2d 1303, 1310 (5th Cir. 1985). If
Wright’s Rule 41(e) motion is not barred by either the statute of
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limitations or under the doctrine of laches, the district court
should proceed with the merits of the motion.
VACATED AND REMANDED.