United States v. Sims, Rufus ( 2004 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    Nos. 02-4138, 03-1088
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    RUFUS SIMS,
    Defendant-Appellant.
    ____________
    Appeals from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 92 CR 166-1—James H. Alesia, Judge.
    ____________
    SUBMITTED APRIL 19, 2004—DECIDED JULY 20, 2004
    ____________
    Before POSNER, EVANS, and WILLIAMS, Circuit Judges.
    POSNER, Circuit Judge. Convicted money launderer Rufus
    Sims (see United States v. Sims, 
    144 F.3d 1082
    (7th Cir. 1998))
    filed a motion under Fed. R. Crim. P. 41(g) (formerly 41(e))
    in the district court in which he had been convicted asking
    for the return of seized property. He concedes that most of
    the property identified in the motion was properly forfeited,
    but continues to claim entitlement to property that he
    asserts was seized but never forfeited. The district court
    ruled that the compelled return of any forfeited property
    was barred by the six-year statute of limitations applicable
    2                                       Nos. 02-4138, 03-1088
    to civil actions against the United States, 28 U.S.C. § 2401(a),
    which in United States v. Duke, 
    229 F.3d 627
    , 629 (7th Cir.
    2000), we applied to challenges to the adequacy of notice in
    administrative forfeiture proceedings begun before August
    23, 2000. (For proceedings begun after that date, the limit on
    such challenges is five years. 18 U.S.C. § 983(e)(3).) All the
    challenged forfeitures took place more than six years before
    Sims filed his motion. As to those, his motion is clearly time-
    barred.
    For several items in Sims’s motion, however, no record of
    any forfeiture proceeding can be found (nor for that matter
    any record that the items had been seized, but for the mo-
    ment we’ll assume they had been). The court treated Sims’s
    request for the return of these items as a claim against the
    United States under the Federal Tort Claims Act, and ruled
    that the claim was barred because he hadn’t presented it to
    the appropriate federal agency within two years of the
    alleged seizures, as required for tort claims against the
    United States by 28 U.S.C. § 2401(b). The court was in error.
    Sims makes no claim under the Federal Tort Claims Act.
    That Act provides a damages remedy, and Sims is not seek-
    ing damages; he is seeking the return of the seized property
    itself, an equitable remedy for which a motion under Rule
    41(g) is the proper vehicle. Okoro v. Callaghan, 
    324 F.3d 488
    ,
    490 (7th Cir. 2003).
    Could the motion be barred by the six-year statute of
    limitations in 28 U.S.C. § 2401(a)? (All the challenged seizures
    of nonforfeited items, like all the challenged forfeitures,
    occurred more than six years before the filing of the Rule
    41(g) motion.) That section of the Judicial Code is applicable,
    by its terms, only to civil suits against the United States. In
    United States v. 
    Duke, supra
    , we characterized a challenge to
    an administrative forfeiture as such a suit (even though the
    challenge had been styled as a Rule 41(g) motion), compar-
    Nos. 02-4138, 03-1088                                          3
    ing it to a petition to review an administrative agency’s
    order, and so applied the six-year statute of limitations. See
    also Polanco v. U.S. Drug Enforcement Administration, 
    158 F.3d 647
    , 651 (2d Cir. 1998). When the five-year deadline to
    which we referred earlier came into effect, the analysis in
    Duke was superseded. The five-year rule is expressly
    applicable to challenges to administrative forfeitures, and
    by its terms is exclusive. 18 U.S.C. §§ 983(e)(3), (5). But as
    we explained in Duke, even under the ancien régime Rule
    41(g) was not the proper vehicle for challenging an adminis-
    trative forfeiture. See also Chairez v. United States, 
    355 F.3d 1099
    , 1100 (7th Cir. 2004). Its office was to try to recover
    seized but not forfeited property.
    But could it not be described as a civil suit against the
    United States? Rule 41(g) motions are civil in character. E.g.,
    United States v. Howell, 
    354 F.3d 693
    , 695 (7th Cir. 2004)
    (“even if his motion had been a motion under Rule 41(g) for
    the return of property obtained in a search, rather than an
    attempt to challenge an administrative forfeiture, the
    proceeding would have been a civil proceeding subject to
    the requirements that we have noted [payment of filing fee,
    PLRA restrictions]”); United States v. Taylor, 
    975 F.2d 402
    ,
    403 (7th Cir. 1992) (orders resolving motions under Rule
    41(g) are treated as civil for purposes of appeal). The motion
    can be filed before criminal charges are brought, In re Search
    of Office of Tylman, 
    245 F.3d 978
    , 980 (7th Cir. 2001), and the
    rule itself says that the motion can be filed in the district
    where the property was seized—it needn’t be filed in the
    district in which the criminal proceedings are under way,
    though it can be, United States v. 
    Howell, supra
    , 354 F.3d at
    695; Okoro v. Bohman, 
    164 F.3d 1059
    , 1061-62 (7th Cir. 1999),
    and was here; notice the criminal docket designation in the
    district court. Still, to describe this strange hybrid as a civil
    suit against the United States is strained— and, as we about
    to see, unnecessary.
    4                                      Nos. 02-4138, 03-1088
    The proper office of a Rule 41(g) motion is, before any
    forfeiture proceedings have been initiated, or before any
    criminal charges have been filed, to seek the return of prop-
    erty seized without probable cause, or property held an
    unreasonable length of time without the institution of pro-
    ceedings that would justify the seizure and retention of
    the property. The rule can also be invoked after criminal
    proceedings have concluded to recover the defendant’s
    property when the property is no longer needed as evi-
    dence—unless, of course, it has been forfeited in the course
    of those proceedings. Okoro v. 
    Callaghan, supra
    , 324 F.3d at
    490.
    No statute of limitations governs motions for return of
    property under Rule 41(g). The four-year catch-all statute of
    limitations in 28 U.S.C. § 1658(a) is applicable only to claims
    made possible by statutes enacted or amended after 1990,
    Jones v. R.R. Donnelley & Sons, 
    124 S. Ct. 1836
    (2004), and
    even if a federal rule of procedure can be deemed an “Act of
    Congress” (the term in section 1658(a)), Sims’s claim is not
    based on any post-1990 change to Rule 41. It actually makes
    sense to have no time limit on Rule 41(g) motions before
    criminal charges are brought or civil forfeiture proceedings
    begun, as the date of accrual—the point at which the
    government’s retention of the property can no longer be
    justified—is too indefinite. But once the criminal proceed-
    ings or the civil forfeiture proceedings have concluded
    without the property having been forfeited (or the statute of
    limitations for bringing either type of proceeding having
    expired, see Mantilla v. United States, 
    302 F.3d 182
    , 186 (3d
    Cir. 2002); Polanco v. U.S. Drug Enforcement 
    Administration, supra
    , 158 F.3d at 654), the claimant knows that he has a
    present right to its return, and he shouldn’t be permitted to
    postpone his request for its return indefinitely. For reasons
    similar to those we gave in Duke, the six-year statute of
    limitations in 28 U.S.C. § 2401(a) is appropriate in such
    Nos. 02-4138, 03-1088                                           5
    cases, and so we shall borrow it for Rule 41(g) motions. See
    United States v. Wright, 
    361 F.3d 288
    (5th Cir. 2004); United
    States v. Rodriguez-Aguirre, 
    264 F.3d 1195
    , 1210 (10th Cir.
    2001). The period will run from the conclusion of the
    criminal proceedings or civil forfeiture proceedings, or, if no
    such proceedings are instituted, from the expiration of the
    statute of limitations for filing the criminal or civil forfeiture
    case, Mantilla v. United 
    States, supra
    , 302 F.3d at 186; Polanco
    v. U.S. Drug Enforcement 
    Administration, supra
    , 158 F.3d at
    654, but can be tolled if the defendant is unable despite
    diligent inquiry to file his claim in time. If the owner of the
    seized property happens to be someone other than the
    defendant, the period will run from when the person be-
    comes aware or should become aware that the criminal
    proceedings have concluded.
    As Sims’s motion was filed within six years of the conclu-
    sion of his criminal proceedings, it is not barred by the
    statute of limitations. But he faces another hurdle: it is not
    clear that any of the items he seeks (with one minor excep-
    tion) were ever actually seized. For example, he requests the
    return of cash in the amount of $6,421,415. That is simply
    the figure the government used in the forfeiture count of the
    indictment against Sims. It was an estimate of the entire
    value of his drug-trafficking enterprise over its five-year
    run. It represented the amount the government would have
    liked to gets its paws on, but there is no indication that it
    ever succeeded. The same is true of the other items that
    Sims asks to be returned—there is no indication that the
    government has them—with one exception: “$339,280
    seized, $325,108 [f]orfeited, showing $14,172 not forfeited.”
    In February 1989, government agents had seized money from
    three safe deposit boxes at a bank in Cicero, Illinois. A week
    earlier, they had seized money from a satchel carried out of
    a different bank by Sims’s mother, who claimed not to know
    whose it was. The money was judicially forfeited in United
    6                                         Nos. 02-4138, 03-1088
    States v. A 1987 Rolls-Royce Corniche, No. 89 C 1250 (N.D. Ill.
    May 31, 1989), but the government eventually learned that
    a bit more money had actually been seized than was
    identified in the forfeiture order—$14,172 more, to be exact.
    Assuming that this money was never forfeited (the record is
    unclear whether it was), it qualifies as property that has
    been seized but not forfeited. But there is a hitch: Sims did
    not list the $14,172 either in his Rule 41(g) motion or in any
    other filing in the district court. He listed it for the first time
    in his brief on appeal. That of course was too late. The claim
    for the money is thus—forfeited.
    AFFIRMED.
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—7-20-04