United States v. Lacey ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 17 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-3300
(D.C. No. 97-3452-SAC)
RICHARD RAY LACEY, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the
case is ordered submitted without oral argument.
Defendant Richard Lacey, a federal prisoner appearing pro se, appeals the
district court’s denial of his motion pursuant to Fed. R. Crim. P. 41(e) for return
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of property. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. 1
Lacey was arrested on July 6, 1989, for suspicion of narcotics trafficking.
At the time of his arrest, approximately $6,950 in currency was seized from his
vehicle. An administrative forfeiture proceeding pursuant to 21 U.S.C. §
881(a)(6) was commenced and, on February 20, 1990, a declaration of forfeiture
was issued as to the seized currency. Lacey was convicted of six drug-related
offenses. See United States v. Lacey, 86 F.3d 956 (10th Cir. 1996) (affirming his
convictions and sentence).
On March 13, 1998, approximately seventeen months after his convictions
became final and nearly nine years after his arrest, Lacey filed a motion pursuant
to Fed. R. Crim. P. 41(e) for return of the seized currency. Lacey contended he
did not receive timely personal notice of the administrative forfeiture
proceedings, and the seized currency was not connected to illegal activity. The
district court treated the motion as a civil complaint and concluded it was barred
by the applicable statute of limitations, 28 U.S.C. § 2401(a). As an alternative
ground for denial, the court found Lacey did receive proper notice of the
1
Lacey has filed a motion for leave to proceed in forma pauperis on
appeal. Because he was granted leave to proceed in forma pauperis in district
court, and because the district court did not certify his appeal was not taken in
good faith, Fed. R. App. P. 24(a) (now codified as 24(a)(3)) allows him to
proceed in forma pauperis on appeal without further authorization. We note,
however, that does not absolve him of the responsibility of paying the full amount
of the filing fee. See 28 U.S.C. § 1915(b)(1).
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proceedings. Because we conclude the motion was time-barred, we need not
reach the alternative holding.
Federal courts “have jurisdiction under 28 U.S.C. § 1331 to review whether
[an] administrative forfeiture satisfied statutory and due process requirements.”
United States v. Rodgers , 108 F.3d 1247, 1250 (10th Cir. 1997). The court
properly construed Lacey’s motion as a civil complaint under 28 U.S.C. § 1331.
See United States v. Clark , 84 F.3d 378, 381 (10th Cir. 1996). We review de
novo the district court’s determination that Lacey’s complaint is barred by the
statute of limitations. Sterlin v. Biomune Systems , 154 F.3d 1191, 1194 (10th
Cir. 1998).
A complaint challenging procedural deficiencies in an administrative
forfeiture proceeding is subject to the general six-year statute of limitations in 28
U.S.C. § 2401(a). Palanco v. United States Drug Enforcement Admin. , 158 F.3d
647, 652 (2d Cir. 1998). “[E]very 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.” 28 U.S.C. § 2401(a). Here, any cause of action Lacey
might have had accrued no later than February 20, 1990, when the declaration of
forfeiture was issued as to the seized currency. Because Lacey’s complaint was
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not filed until March 13, 1998, it was barred by the statute of limitations. 2
AFFIRMED. The mandate shall issue forthwith.
Entered by the Court
Mary Beck Briscoe
Circuit Judge
2
The record on appeal clearly indicates Lacey and his criminal defense
attorney received notice of the administrative forfeiture proceedings no later than
December 13, 1989, and were thus aware of the subsequent declaration of
forfeiture.
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