United States v. Miseph ( 1995 )

USCA1 Opinion

          October 11, 1995      [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1160



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   BRYON S. MISEPH,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                 [Hon. Frank H. Freedman, Senior U.S. District Judge]
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                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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            Bryon Miseph on brief pro se.
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            Donald K.  Stern, United States  Attorney, and  C. Jeffrey Kinder,
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        Assistant United States Attorney, on brief for appellee.





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                 Per Curiam.  In October 1993, defendant Bryon Miseph was
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            sentenced to  a combined 100-month prison  term following his



            guilty  plea  to  cocaine  and  firearms  offenses.    Nearly



            fourteen  months later, he filed a motion under Fed. R. Crim.



            P.  41(e) for the return  of some eighteen  firearms that had



            been taken from his  residence following his arrest--claiming



            that the  items  had  been unlawfully  seized  and  had  been



            unrelated  to  his  criminal  activity.    In  response,  the



            government stated that, after  notice to all known interested



            parties  had been provided and  no claim had  been filed, the



            property had been administratively forfeited and subsequently



            destroyed.    Evidence  attesting   to  the  declaration   of



            forfeiture and  the destruction  was provided.   The district



            court denied  the motion the following  day--finding that the



            property was no longer  in existence and that, in  any event,



            it  had been "lawfully seized  and forfeited."  Defendant now



            appeals,  claiming  that  he  never received  notice  of  the



            forfeiture.   He notes in this regard that, pursuant to court



            order,  he  had been  confined  under "house  arrest"  in his



            parents' residence in East Falmouth, Massachusetts during the



            relevant period.



                 The issue before  us is  a narrow one.   The  government



            acknowledges  that  a  district  court  has  jurisdiction  to



            entertain  collateral due  process attacks  on administrative



            forfeitures.  See,  e.g., United States  v. Giraldo, 45  F.3d
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            509,  511 (1st Cir. 1995)  (per curiam) (listing  cases).  It



            also  acknowledges that  the destruction  of the  property in



            question here did not  render such an action moot--suggesting



            that the  motion could  have  been treated  as an  "equitable



            claim for damages," see, e.g., Rufu v. United States, 20 F.3d
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            63, 65 (2d Cir.  1994); United States v. Martinson,  809 F.2d
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            1364, 1366-69 (9th Cir. 1987), and noting that a civil action



            for damages would in any event lie, see, e.g., Mora v. United
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            States, 955 F.2d 156,  160 (2d Cir. 1992); cf.  United States
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            v.  Mosquera,  845  F.2d  1122,  1126 (1st  Cir.  1988)  (per
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            curiam).   The government  simply contends that,  as the Rule



            41(e) motion  was properly  denied, we should  affirm without



            prejudice  to   defendant  filing   a  separate   action  for



            appropriate relief.



                 We  agree.    Defendant   has  raised  his  due  process



            challenge for the  first time only on  appeal.  As  such, the



            district  court's ruling  obviously  cannot be  considered an



            abuse  of discretion  based upon  the record then  before the



            court.  To be  sure, it might have  been better practice  had



            the  district  court  afforded defendant  an  opportunity  to



            address  the  government's  opposition before  ruling.    Yet



            defendant (who claims that he first learned of the forfeiture



            and  destruction  by  reading  such  opposition)  could  have



            presented his due process challenge to the lower court by way



            of  a timely motion for reconsideration, but failed to do so.







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            Under these circumstances, we  think it appropriate to affirm



            the  district  court's  order,  albeit  without prejudice  to



            defendant's  assertion  of  his   due  process  claim  in  an



            independent action under 28 U.S.C.   1331.



                 Affirmed.
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