United States v. Inocente Capote , 159 F. App'x 108 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-13195 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 13, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 92-00314-CR-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
INOCENTE CAPOTE,
a.k.a. Tony Capote,
a.k.a. Tony Brown,
a.k.a. Anthony Brown,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 13, 2005)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Inocente Capote, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion for return of property under Federal Rule of Criminal
Procedure 41(g), which was construed as a motion to set aside forfeiture under 18
U.S.C. § 983(e). On appeal he argues that (1) the district court erred by finding
that his motion was time-barred; (2) he was entitled to equitable tolling; and (3) the
application of § 983, enacted after the forfeiture proceedings in this case were
completed, violates the Ex Post Facto Clause of the Constitution. For the reasons
set forth more fully below, we affirm.
On September 22, 2004, Capote filed a pro se motion for return of property
pursuant to Rule 41(e) (now Rule 41(g)). In it, Capote stated that, on September 7,
1990, the Federal Bureau of Investigation (FBI) and Drug Enforcement
Administration (DEA) seized $39,390 of U.S. currency and jewelry from him.1
Capote then argued that the government had violated his Fifth Amendment due
process rights because it failed to notify him that the afore-mentioned property
would be forfeited and, thus, deprived him an opportunity for a hearing. Included
with the motion was Capote’s personal affidavit describing various pieces of
jewelry seized by the FBI and DEA.
1
The money and jewelry were seized pursuant to a search warrant and, in addition to the
money and jewelry, the government seized 10 kilograms of cocaine, leading to an indictment for
possession with the intent to distribute cocaine. A jury convicted Capote, and he was
subsequently sentenced to life imprisonment.
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The government responded that the FBI had processed the jewelry and
money in question and initiated administrative forfeiture proceedings. In
connection with the money, in April 1992, the FBI mailed two notices to Capote,
one to his last known address, and another in care of the United States Marshals
Service (USMS) because, at that time, Capote was in USMS custody. With respect
to the jewelry, the FBI mailed three notices, one in May 1992 to Capote’s last
known address, one in May 1992 in care of the USMS in Fort Worth because
Capote was in its custody, and one in August 1992 in care of the Federal
Corrections Institution where Capote was incarcerated. The notices outlined the
procedure for contesting the administrative forfeiture. A notice of the seizures and
forfeitures was also published in the Atlanta Journal & Constitution, a newspaper
with general circulation. With respect to the currency, publication was made on
May 4, 11, and 18, 1992, and with respect to the jewelry, publication was made on
May 25, June 1, and June 8, 1992. After receiving no claims for the currency or
the jewelry, the FBI administratively forfeited the currency on July 27, 1992, and
the jewelry on November 16, 1992.2
2
The government’s exhibits included (1) two sworn declarations by Debra Lemaster, a
paralegal specialist at FBI headquarters who had access to records relating to the forfeiture of the
currency and the jewelry; (2) copies of the letters, envelopes, and return receipts of notices
mailed to Capote; (3) copies of the publication printed in the AJC; and (4) the final declarations
of forfeiture. Also included was the sworn statement of Vickie Burge, an employee of the
USMS, who confirmed that Capote was in USMS custody from March 6 until September 3,
1992, and was transferred from Johnson County Jail in Fort Worth, Texas to a Federal
3
The government first argued that the district court lacked jurisdiction to
entertain Capote’s motion under Rule 41(g) because the exclusive remedy
available to Capote was found at § 983(e). However, the government argued that
Capote’s motion was filed beyond the § 983(e)(3)’s five-year statute of limitations.
The government argued in the alternative that even if 28 U.S.C. § 2401(a)’s six-
year statute of limitations applied to Capote’s motion, it was time-barred because it
was filed 14 years after the seizure and 12 years after the forfeiture. The
government further noted that, in October 1992, Capote filed a motion to suppress
all of the evidence seized from his apartment and, therefore, was aware of the
seizure of the currency and jewelry. Thus, the government argued that Capote’s
claim was barred by the doctrine of laches because he offered no excuse for his
delay in challenging the forfeiture.
In reply, Capote argued that the district court had equitable jurisdiction to
hear his motion for return of property and requested that his pro se pleadings be
liberally construed. He further alleged that, because his motion asserted a Fifth
Amendment violation, the court had jurisdiction under 28 U.S.C. § 1331. Next,
Capote argued that his claim did not accrue until a fellow inmate informed him that
any seizure of property had to be preceded by notice under the Fifth Amendment.
Correctional Institute on July 27, 1992.
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Thus, he argued that his motion was not time-barred because he had never been
notified of the forfeiture, and, therefore, his claim did not accrue until he received
the government’s response and examined the exhibits submitted. Capote further
responded that his claim was not barred by laches because the government was
responsible for any delay as a result of its constitutionally deficient notice. Capote
argued that the record in this case failed to show when he received any mail while
in detention at Johnson County Jail and that the methods for mail delivery at both
Johnson County and the FCI in Fort Worth were sufficient. Finally, Capote argued
that he was entitled to equitable tolling because any delay in filing was due solely
to the government’s inadequate notice, and he had exercised diligence upon
learning that the government had violated his due process rights.
The district court denied Capote’s motion, finding that Capote was not
entitled to relief under Rule 41(g) because his exclusive remedy for challenging the
forfeiture on grounds of improper notice was under § 983(e). The court then found
that Capote’s motion was time-barred under § 983(e)(3)’s five-year statute of
limitations because Capote filed his motion more than 12 years after the
government forfeited its final notice of forfeiture.
On appeal, Capote argues that the district court erred by applying the
five-year statute of limitations set forth in § 983(e)(3) when denying his motion as
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time-barred. Instead, he argues that the six-year statute of limitations set forth in
§ 2401(a) applies, and because his cause of action accrued when he discovered or
had reason to discover that his property had been forfeited without sufficient
notice, his claim could not have accrued until after he had filed his motion and the
government had filed its response. Capote also argues that his motion was not
barred by laches because his delay in filing the motion was due to the
government’s insufficient notice. Capote also asserts he was entitled to equitable
tolling of the statute of limitations for the same reason.
We review a district court’s interpretation and application of a statute of
limitations de novo. See United States v. Cattrell, 252 F.3d 1193, 1198 (11th Cir.
2001) (reviewing applicability of the five-year statute of limitations in 19 U.S.C.
§ 1621 for civil forfeitures of proceeds traceable to narcotics activity under 21
U.S.C. § 881). We note at the outset that the district court construed Capote’s Rule
41(e) motion for a return of property as an § 983(e) motion to set aside a forfeiture,
thus triggering the five-year statute of limitations in § 983(e)(3). We decline to
address whether this was correct because even if the six-year statute of limitations
set forth in § 2401(a) applied, Capote’s motion would still be time barred.
Assuming without deciding that the district correctly construed Capote’s
motion as one to set aside the forfeitures, section 983(e), which took effect on
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August 23, 2000, provides “the exclusive remedy for seeking to set aside a
declaration of forfeiture under a civil forfeiture statute.” 18 U.S.C. § 983(e)(5). A
motion to set aside a forfeiture under § 983(e) “may be filed not later than 5 years
after the date of final publication of notice of the seizure of the property.” 18
U.S.C. § 983(e)(3). Here, Capote filed his motion 12 years after the final notices
of publication of the seizure of both the currency and jewelry, and his motion,
therefore, was time-barred under § 983.
In the alternative, Capote argues that the forfeiture occurred in 1992, prior to
§ 983's passage, and, therefore, 28 U.S.C. § 2401(a)’s six-year “catch-all” statute
of limitations should apply. Assuming without deciding that Capote is correct,
§ 2401(a) provides that “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.” 28 U.S.C. § 2401(a). The core issue under § 2401(a) is when
Capote’s claim accrued. To date, this Court has not addressed the question of
when a claim accrues under § 2401(a). Capote urges this Court to apply the test set
forth by the Second Circuit in Polanco v. United States Drug Enforcement Admin.,
158 F.3d 647 (2d Cir. 1998), and the government has not objected to the use of this
test.
The Second Circuit has held that a claim accrues under § 2401 when the
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plaintiff “discovered or had reason to discover that his property had been forfeited
without sufficient notice.” Polanco, 158 F.3d at 654. In that case, the record did
not reflect whether or when the defendant had his property forfeited, but the
Second Circuit ruled that the defendant’s claim would have begun to accrue at the
earlier of two possible dates: (1) at the close of forfeiture proceedings, or (2) if no
forfeiture proceedings had begun, when the five-year statute of limitations for the
government to initiate forfeiture proceedings concluded. Id. As Capote’s suit was
filed more than 12 years after the forfeitures in this case had concluded, even
following the Polanco rule, his present motion would be untimely under § 2401(a).
Moreover, taking a broader stance than the Second Circuit, the Fourth
Circuit has held that a claimant’s cause of action for inadequate notice of forfeiture
accrues under § 2401 at the earlier of two dates: “when he first became 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. Minor, 228 F.3d 352, 359 (4th Cir. 2000); see also
United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1214 (10th Cir. 2001) (holding
that a claimant’s cause of action accrues at the earlier of two dates: “(1) the date on
which the claimant discovered that the property was forfeited, or (2) the date on
which the claimant could reasonably be expected to have made an inquiry that
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would have made him aware of the forfeiture.”). Capote argues he did not become
aware of the forfeiture until 2004. However, Capote could reasonably have
inquired about his property 12 years earlier, when he knew it had been seized, as
evidenced by his filing a motion to suppress on October 6, 1992. Therefore, even
applying the Fourth Circuit’s rule, his motion is time-barred. Accordingly, giving
Capote the full benefit of his argument that § 2401(a) applies, we still conclude
that Capote’s motion was time-barred.
As to Capote’s equitable tolling argument, we have not, to date, applied the
equitable tolling doctrine to § 983 or § 2401(a) cases. However, we have held that,
absent Congressional intent to the contrary, principles of equitable tolling are read
into every federal statute of limitation. Cook v. Deltona Corp., 753 F.2d 1552,
1562 (1985). Assuming that § 983(e)(3)’s statute of limitations may be equitably
tolled, the doctrine of “equitable tolling” is an extraordinary remedy that we apply
“sparingly.” See, e.g., Drew v. Dep’t of Corrs., 297 F.3d 1278, 1286 (11th Cir.
2002) (noting that equitable tolling is available to toll the statute of limitations for
filing 28 U.S.C. § 2254 habeas petitions). “[I]t is ‘appropriate when a movant
untimely files because of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence.’” Id. (citation omitted and emphasis
in original). The burden of establishing entitlement to this “extraordinary remedy”
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is clearly with Capote. Id.While Capote argues that his failure to file an earlier motion was due to the
government’s negligence in failing to provide him notice, this argument is
meritless. Capote became aware of the forfeiture at the latest in October 1992,
when he filed a motion to suppress all evidence seized from his residence. Despite
that knowledge, Capote never filed a motion to have his property returned, but
instead waited more than 12 years to challenge the forfeiture, and, therefore, failed
to exercise any diligence. Accordingly, Capote was not entitled to equitable tolling
of either statute of limitations.
Lastly, to the extent that Capote argues that the district court’s application of
§ 983(e)’s five-year statute of limitations caused an ex post facto violation, he did
not raise this challenge in the district court, and we will review only for plain error.
United States v. Miranda, 197 F.3d 1357, 1358-59 (11th Cir. 1999). “An appellate
court may not correct an error the defendant failed to raise in the district court
unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights.”
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied 125 S.Ct.
2935 (2005) (quotation and citation omitted). “If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of
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judicial proceedings.” Id.The Ex Post Facto Clause of the Constitution provides that “No Bill of
Attainder or ex post facto Law shall be passed.” U.S. Const. Art. I § 9, cl. 3. “The
Ex Post Facto Clause operates not to protect an individual’s right to less
punishment, but rather as a means of assuring that an individual will receive fair
warning of criminal statutes and the punishments they carry.” United States v.
Bordon, 421 F.3d 1202, 1207 (11th Cir. 2005). “[I]n order to prevail on an ex post
facto claim, a defendant ‘must show both that the law he challenges operates
retroactively (that it applies to conduct completed before its enactment) and that it
raises the penalty from whatever the law provided when he acted.’” Id. Assuming
that § 983 applies retroactively to forfeitures occurring before the date of its
passage, nothing in § 983 operates to raise the penalty for a crime that Capote
committed. See also Dufresne v. Baer, 744 F.2d 1543, 1546 (11th Cir. 1984) (“[a]
law which is merely procedural and does not add to the quantum of punishment,
however, cannot violate the ex post facto clause even if it is applied
retrospectively.”). Thus, we conclude that there was no ex post facto violation in
this case.
Based on the foregoing discussion, we conclude that Capote’s motion was
time-barred under either § 983's five-year statute of limitations or § 2401(a)’s
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six-year statute of limitations, and that application of § 983(e)(3) did not result in
an ex post facto violation. Accordingly, we conclude that the district court did not
commit any reversible error by denying Capote’s motion. We, therefore, affirm.
AFFIRMED.
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