United States v. Harvey ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEON DURWOOD HARVEY,
Claimant-Appellant.
and
PREMISES KNOWN AS 3301 BURGUNDY
ROAD, ALEXANDRIA, VIRGINIA, a
No. 98-1116
parcel of real property and all
appurtenances thereto, lying in
Fairfax County, Virginia, and
containing 10.671 acres; said
property being titled in the name of
Realcon Investments, Inc., and any
and all proceeds from sale of said
property,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-81-1057-A)
Submitted: October 30, 1998
Decided: December 4, 1998
Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Leon Durwood Harvey, Alexandria, Virginia, for Appellant. Gordon
Dean Kromberg, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Leon Durwood Harvey appeals the district court's order denying
his motion for return of funds and payment of interest. Because Har-
vey filed his motion in 1997, more than ten years after the criminal
forfeiture of all Harvey's property, we affirm the district court's order
denying the motion as untimely.
The United States contended that Harvey and others planned drug
smuggling at a property in Alexandria, Virginia, known as 3301 Bur-
gundy Road, which was owned by Realcon, a Liechtenstein corpora-
tion. The United States has always contended, and Harvey admits,
that Realcon was his alter ego. When Realcon attempted to sell the
property, the United States filed a warrant of arrest against, and
attached, the property. The district court stayed the civil proceedings
pending further developments in criminal actions against Harvey and
his confederates, who had been indicted. See United States v. 3301
Burgundy Rd., 728 F.2d 655, 656 (4th Cir. 1984).
The district court denied Realcon's motion to lift the stay, and
Realcon appealed. Barry Toombs, one of Harvey's cohorts, subse-
quently pleaded guilty to RICO violations. As part of his plea agree-
2
ment, Toombs agreed to forfeit the Burgundy Road property. The
district court entered a consent judgment requiring that $200,000 in
proceeds from the sale of the property be transferred to the United
States. See id. at 657.
In 3301 Burgundy Rd., we vacated the consent judgment because
Toombs had no forfeitable interest in the property. We remanded to
the district court for a determination of the property's rightful owner.
See id. Following remand, the district court on April 30, 1984, dis-
missed the case for want of jurisdiction because the proceeds of the
sale had been transferred outside the Eastern District of Virginia, to
the Department of Justice in Washington, D.C. Neither Realcon nor
Harvey appealed the dismissal.
A superseding indictment was returned against Harvey in 1985.
The United States also sought forfeiture of all of Harvey's property.
Harvey was convicted in 1986 on numerous counts, including RICO
violations, operating a continuing criminal enterprise, tax evasion,
and conspiracy. On February 18, 1986, the district court entered an
order forfeiting all of Harvey's assets, including his corporate, busi-
ness, and personal interests. Harvey was sentenced to forty years in
prison; his term later was reduced to thirty years.
On August 27, 1997, Harvey filed the subject motion for return of
seized property, claiming that the forfeiture litigation in this case was
still pending, presumably because we vacated the forfeiture order in
3301 Burgundy Rd. He claimed that he was entitled to the return of
the property (or its proceeds) and to interest from the date of the
improper seizure.
Harvey ignores the fact that he forfeited all his assets in the crimi-
nal proceeding. He admits that he and Realcon were the same entity.
Therefore, the valid criminal forfeiture of all his assets included the
forfeiture of the Burgundy Road property, which had been held in the
name of Realcon.
Harvey waited more than ten years after the criminal forfeiture to
institute this action. The most generous limitations period that might
apply to this motion for return of seized property is six years. See 28
U.S.C.A. § 2401 (West 1994 & Supp. 1998); Boero v. DEA, 111 F.3d
3
301, 305 n.5 (2d Cir. 1997). His motion was untimely, as the district
court correctly found.
Harvey is not, as he contends, entitled to application of the rule
announced in United States v. James Daniel Good Real Property, 510
U.S. 43 (1993). In Good, the Supreme Court declared that the seizure
of real property without a pre-seizure hearing violated the owner's
due process rights. See id. at 46. The remedy for a Good violation is
to release to the owner of the property the profits or rent which the
owner lost during the period of the illegal seizure. See United States
v. Marsh, 105 F.3d 927, 931 (4th Cir. 1997).
To the extent that Good applies to criminal forfeitures, it applies
only to cases that were pending at the time Good was announced. See
id., 105 F.3d at 931. As the forfeiture in this case was accomplished
long before the Good decision, Harvey may not benefit from the
Good rule.
We therefore affirm the decision of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
4