United States v. Sims, Rufus ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 02-4138, 03-1088
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUFUS SIMS,
Defendant-Appellant.
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Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 92 CR 166-1—James H. Alesia, Judge.
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SUBMITTED APRIL 19, 2004—DECIDED JULY 20, 2004
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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