United States v. Hartog ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OFAMERICA, 
Plaintiff-Appellee,
DANIEL HARTOG,
Claimant-Appellant,
and
VICTOR A. CARBONNEAU; TOTAL
FINANCIAL COMPANY LIMITED;
TOTAL AVIATION CONSULTANTS
LTD.,
Claimants,
v. No. 05-16614
APPROXIMATELY $1.67 MILLION
(US) IN CASH, STOCK, AND OTHER  D.C. No.
CV-98-02360-JL
VALUABLE ASSETS HELD BY OR AT: OPINION
1) TOTAL AVIATION LDT., ACCOUNT
NO. 7092686, LOCATED AT
BARCLAYS BANK PLC, GRAND
CAYMAN, CAYMAN ISLANDS, BRITISH
WEST INDIES; 2) DEACON
BARCLAYS DE ZOETE WEDD LIMITED,
ACCOUNT NO. 13603A-2 AKA
BARCLAYS PRIVATE BANK & TRUST
CM1633, LOCATED AT BARCLAYS
PRIVATE BANK & TRUST (CAYMAN)
LIMITED, GRAND CAYMAN, CAYMAN
ISLANDS, BRITISH WEST INDIES;

819
820 UNITED STATES v. HARTOG
3) TOTAL FINANCIAL CONSULTANTS 
LTD., ACCOUNT REFERENCE 310205-
633500, LOCATED AT THE BARCLAYS
PRIVATE BANK & TRUST (CAYMAN)
LIMITED, GRAND CAYMAN, CAYMAN
ISLANDS, BRITISH WEST INDIES; 4)
CASHIERS CHECK 11405244-152
IN THE AMOUNT OF $85,000 (US),
DRAWN AT THE ROYAL BANK OF
CANADA, GEORGETOWN, GRAND
CAYMAN, CAYMAN ISLANDS, BRITISH 
WEST INDIES, ON OR ABOUT MARCH
20, 1995; AND 5) CASHIERS CHECK
11405244-141 IN THE AMOUNT OF
$21,250 (US) DRAWN AT THE
ROYAL BANK OF CANADA,
GEORGETOWN, GRAND CAYMAN,
CAYMAN ISLANDS, BRITISH WEST
INDIES, ON OR ABOUT MARCH 17,
1995,
Defendants.

Appeal from the United States District Court
for the Northern District of California
James Larson, Magistrate Judge, Presiding
Argued and Submitted
August 15, 2007—San Francisco, California
Filed January 22, 2008
Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,
and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
UNITED STATES v. HARTOG 823
COUNSEL
David A. Nickerson, San Rafael, California, for the claimant-
appellant.
Kevin V. Ryan, United States Attorney, Barbara J. Valliere,
Assistant United States Attorney, and Stephanie M. Hinds,
Assistant United States Attorney, San Francisco, California,
for the plaintiff-appellee.
OPINION
WARDLAW, Circuit Judge:
Daniel Den Hartog, a twice-convicted drug smuggler and
trafficker who had on deposit in certain Cayman Island bank
accounts $1.67 million in alleged drug trafficking proceeds,
appeals the grant of summary judgment in favor of the United
824 UNITED STATES v. HARTOG
States in its civil forfeiture action filed in the United States
District Court for the Northern District of California. We must
decide whether (1) the district court applied the correct juris-
dictional standard and properly found that it had in rem juris-
diction over the forfeited funds; (2) the government met its
burden of demonstrating probable cause to seize the funds, so
as to warrant summary judgment; and (3) the five-year delay
between the government’s seizure of the funds in August
1993 and the filing of this action in June 1998 violated Har-
tog’s due process rights. Because we conclude that jurisdic-
tion properly lies in the Northern District of California, that
Hartog failed to adduce a genuine issue of material fact that
the funds derived from legitimate sources, and that Hartog
suffered no prejudice due to the government’s delay, we
affirm the district court.
I. BACKGROUND
Hartog’s entanglement in the drug trade stretches back
nearly thirty years. In 1979, Hartog had been convicted of
conspiracy to transport 1,066 kilograms of marijuana in the
State of Arizona. That conviction, however, did not dissuade
Hartog from continuing his involvement in drug trafficking.
Numerous reports from the Federal Bureau of Investigation
detail statements from Hartog’s former associates implicating
him in continued drug-smuggling efforts throughout the
1980s. Marijuana smuggled into the United States in 1987
eventually led to Hartog’s 1992 arrest and sentence to fifteen
years imprisonment.
The planning for the 1987 scheme, which involved two
separate shipments, began as early as 1986. In December
1986, Hartog told Seth Booky, a business associate, that the
two shipments consisted of a smaller load of approximately
ten tons and a second “big” load.1 A month later, Hartog,
1
Seth Booky was arrested in June 1987 due to a separate marijuana sale
and then agreed to cooperate with the government, including by taping
conversations with Hartog.
UNITED STATES v. HARTOG 825
Booky and three other co-conspirators met in Carmel, Califor-
nia, where Hartog claimed ownership over half of the ship-
ment and granted Booky part of the distribution rights. Over
the following months, Hartog held a series of meetings with
associates in San Francisco and Carmel where it was decided
to smuggle the first load through Hawaii and the second
through Seattle. To effectuate the plan, Booky procured false
identifications for Hartog and other participants. Booky
mailed these false documents to Hartog in Monterey.
After traveling to Asia to orchestrate the impending deliv-
ery, Hartog informed Booky in May that both shipments were
imminent. In July 1987, U.S. Customs officials seized nearly
twelve tons of marijuana bound for Hawaii and made seven
arrests related to the shipment. Despite the ongoing investiga-
tion, the government failed to interdict the second (and larger)
planned shipment. The setback did not appear to deter Hartog.
After the interception of the Hawaii shipment, Hartog asked
Booky if he still planned on distributing the larger shipment.
In August 1987, Hartog told Booky that he soon expected the
larger shipment to arrive. Three months later, federal agents
found $1.5 million in cash and five kilograms of marijuana
inside a Del Rey Oaks, California, storage locker belonging
to a co-conspirator. That same month another Hartog asso-
ciate was arrested in Reno, Nevada as he attempted to laun-
der, with several others, $7.6 million in cash through a local
casino.
In February 1990, Hartog was indicted in Hawaii for his
role in smuggling the nearly twelve tons of marijuana seized
by customs officials three years earlier. Hartog then disap-
peared and remained a fugitive in Canada. In July 1992,
United States Customs Officials lured Hartog back into the
country and arrested him. Upon his return, Hartog pleaded
guilty to the smuggling charges and was sentenced to fifteen
years in prison.
After the arrest and conviction, the government then
endeavored to seize the $1.67 million lodged in a Cayman
826 UNITED STATES v. HARTOG
Islands bank it understood to be proceeds from Hartog’s drug
trafficking scheme. In August 1993, the United States
obtained an order from the Grand Court of the Cayman
Islands freezing the funds in several bank accounts held on
behalf of a Canadian lawyer named Victor Carbonneau.
The frozen funds had traveled a circuitous route to arrive
in the Cayman Islands. Years prior, in the summer of 1988,
Hartog, then operating under the alias “Daniel Tucker,” met
with Carbonneau, ostensibly seeking advice on investment
methods that would minimize his Canadian tax liability. Car-
bonneau suggested that Hartog set up bank accounts in Swit-
zerland. Accepting the advice, Hartog traveled to Geneva
where he established several bank accounts and deposited
cash and checks that as of 1998 had appreciated into approxi-
mately $1.67 million. Due to incessant conflicts between Har-
tog and the Swiss bank, the funds were transferred several
times, first into Carbonneau’s personal account in Geneva and
later spread among several of Carbonneau’s personal bank
accounts in the Cayman Islands. During their many meetings,
Hartog had told Carbonneau that he inherited the money from
his recently deceased father. Once Carbonneau became aware
that “Daniel Tucker” was actually “Daniel Hartog” and likely
involved in drug smuggling, he barred Hartog from access to
the funds.
In June 1998, the government commenced this forfeiture
action against the seized funds in the District Court for the
Northern District of California. After intermittent discovery,
Hartog moved to dismiss the government’s action for lack of
jurisdiction. Denying the motion, the district court held that it
had in rem jurisdiction because it exercised constructive con-
trol over the funds. Once the Cayman Islands court had frozen
the funds, it subsequently enforced the orders of the United
States district court, thereby acting as its agent. The district
concluded that this agency relationship established its control
over the funds, investing it with in rem jurisdiction.
UNITED STATES v. HARTOG 827
The government then filed for summary judgment in Octo-
ber 2004. The government asserted there existed no disputed
material facts regarding its showing of probable cause that the
seized funds derived from Hartog’s drug-trafficking and
money-laundering activities. The government also contended
that Hartog failed to rebut its showing by adducing credible
evidence that the funds in fact derived from legitimate
sources. Hartog opposed this motion, arguing that a question
of fact existed as to the source of the funds and asserting affir-
mative defenses of lack of probable cause, undue delay and
outrageous government conduct. The district court granted the
motion for summary judgment, holding that the government
provided sufficient probable cause of an illegal source for the
funds, including Hartog’s “use of an alias, false identification
and false claims of Canadian citizenship, coupled with the
highly suspicious manner in which he structured the bank
accounts.” The district court found Hartog’s explanation that
he inherited the funds from his father not credible. By the
terms of his father’s will, Hartog was entitled to slightly over
$117,000 — ten times less than the amount found in the
accounts. The district court further rejected Hartog’s affirma-
tive defenses, concluding that Hartog failed to demonstrate
prejudice caused by the nearly five year delay in initiating the
proceedings.
II. DISCUSSION
A. Jurisdiction Properly Lies in the Northern District of
California.
[1] Hartog appeals the district court’s denial of his motion
to dismiss this in rem proceeding for lack of jurisdiction over
the subject funds.2 He and the government agree that the dis-
trict court erred in concluding it had jurisdiction based on a
2
We review the district court’s determination of in rem jurisdiction de
novo. Ventura Packers, Inc. v. F/V Jeanine Kathleen, 424 F.3d 852, 858
(9th Cir. 2005).
828 UNITED STATES v. HARTOG
theory of constructive control of the Cayman Islands bank
deposits. The correct test, the parties contend, derives from a
plain reading of the jurisdictional statute in question, 28
U.S.C. § 1355(b), which provides for jurisdiction in a district
“in which any of the acts or omissions giving rise to the for-
feiture occurred.” The parties dispute whether any of the acts
or omissions giving rise to the forfeiture occurred in the
Northern District of California. We agree that 28 U.S.C.
§ 1355(b) does not require the government to establish con-
structive control of the proceeds to sustain jurisdiction.
Rather, applying a plain reading of the statute to the acts giv-
ing rise to the forfeiture, we conclude that sufficient acts
occurred in the Northern District of California for jurisdiction
to lie there properly.
“A forfeiture action is in rem. Jurisdiction in rem is predi-
cated on the ‘fiction of convenience’ that an item of property
is a person against whom suits can be filed and judgments
entered.” United States v. Ten Thousand Dollars ($10,000) in
United States Currency, 860 F.2d 1511, 1513 (9th Cir. 1988).
Dating back to early admiralty law, constructive possession of
a res had been a prerequisite to establishing in rem jurisdic-
tion. United States v. James Daniel Good Real Property, 510
U.S. 43, 57-58 (1993) (discussing The Brig Am, 13 U.S. 289,
291 (1815)). Under the traditional paradigm, “the court must
have actual or constructive control over the res when an in
rem forfeiture suit is initiated.” Id. at 58 (citing Republic Nat.
Bank of Miami v. United States, 506 U.S. 80, 84 (1992)). The
district court followed the traditional paradigm when it ruled
that it had jurisdiction based on constructive control over the
res.
[2] In 1992, however, Congress amended 28 U.S.C. § 1355,
which governs federal courts’ jurisdiction over civil forfeiture
actions. The statute, as amended, provides:
(b)(1) A forfeiture action or proceeding may be
brought in —
UNITED STATES v. HARTOG 829
(A) the district court in which any of the
acts or omissions giving rise to the forfei-
ture occurred, or
(B) any other district where venue for the
forfeiture action or proceedings is specifi-
cally provided for in section 1395 of this
title or any other statute.
(b)(2) Whenever property subject to forfeiture under
the laws of the United States is located in a foreign
country, or has been detained or seized pursuant to
legal process or competent authority of a foreign
government, an action or proceeding for forfeiture
may be brought as provided in paragraph (1), or in
the United States District court for the District of
Columbia.
Senator Alphonse D’Amato of New York, when introducing
the bill, clarified how § 1355 would alter the role of construc-
tive control:
Subsection (b)(2) addresses a problem that arises
whenever property subject to forfeiture under the
laws of the United States is located in a foreign
country. As mentioned, under current law, it is prob-
ably no longer necessary to base in rem jurisdiction
on the location of the property if there have been suf-
ficient contacts with the district in which the suit is
filed. . . . No statute, however, says this, and the
issue has to be repeatedly litigated whenever a for-
eign government is willing to give effect to a forfei-
ture order issued by a United States court and turn
over seized property to the United States if only the
United States is able to obtain such an order.
Subsection (b)(2) resolves this problem by providing
for jurisdiction over such property in the United
830 UNITED STATES v. HARTOG
States District Court for the District of Columbia, in
the district court for the district in which any of the
acts giving rise to the forfeiture occurred, or in any
other district where venue would be appropriate
under a venue-for-forfeiture statute.
137 Cong. Rec. S12183-02, S12239 (Aug. 2, 1991).
Notwithstanding the plain language of the statute and its
legislative history, the Second Circuit in United States v. All
Funds on Deposit in any Accounts Maintained in the Names
of Meza or DeCastro, 63 F.3d 148 (2d Cir. 1995) (hereinafter
“Meza”), found that the requirement of constructive control
survived the § 1355 amendments.3 The court reasoned that
“[a]lthough Congress certainly intended to streamline civil
forfeiture proceedings by amending § 1355, even with respect
to property located in foreign countries, we do not believe that
Congress intended to fundamentally alter well-settled law
regarding in rem jurisdiction.” Id. at 152. The court concluded
that “in order to initiate a forfeiture proceeding against prop-
erty located in a foreign country, the property must be within
the actual or constructive control of the district court in which
the action is commenced.” Id. at 153. Here, the district court
principally relied on Meza in asserting jurisdiction due to its
constructive control of the approximately $1.67 million.
Other circuits have declined to follow this approach,
instead applying a plain reading of § 1355. The D.C. Circuit
rejected the requirement of constructive control in United
States v. All Funds in Account in Banco Espanol de Credito,
Spain, 295 F.3d 23 (D.C. Cir. 2002) (hereinafter “Banco
Espanol”). In Banco Espanol, the district court had relied on
3
It is unclear whether Meza remains good law even in the Second Cir-
cuit. In United States v. Certain Funds Located at the Hong Kong &
Shanghai Banking Corp., 96 F.3d 20, 22 (2d Cir. 1996), the Second Cir-
cuit held that § 1355 conferred in rem jurisdiction without reference to the
necessity of constructive or actual control.
UNITED STATES v. HARTOG 831
the cooperation between Spanish authorities and the district
court to establish constructive control over the res. The D.C.
Circuit reasoned that Spain’s cooperation had no relevance to
the district court’s jurisdiction: “Spain’s compliance and
cooperation determines only the effectiveness of the forfeiture
orders of the district courts, not their jurisdiction to issue
those orders.” Id. at 27. The plain language of § 1355(b) alone
provided jurisdiction, not Spanish compliance. Id. Likewise,
the Third Circuit declined to follow the Second Circuit’s
Meza decision, holding that § 1355(b) “grants district courts
jurisdiction over the property at issue . . . based on the plain
language of the statute.” Contents of Account Number
03001288 v. United States, 344 F.3d 399, 403 (3d Cir. 2003).
Mirroring the D.C. Circuit’s reasoning, the Third Circuit
rejected the idea that the cooperation of the United Arab
Emirates in seizing the funds provided the district court with
jurisdiction. Rather, § 1355(b) itself provided jurisdiction
where the claimant had been convicted for his participation in
smuggling heroin into New Jersey and a search of his New
Jersey home produced records of the account. Id. at 400-03.
[3] We find ourselves in agreement with the analysis of the
D.C. and Third Circuits. The plain language and legislative
history of the 1992 amendments makes clear that Congress
intended § 1355 to lodge jurisdiction in the district courts
without reference to constructive or actual control of the res.
See Aiken v. Spalding, 684 F.2d 632, 633 (9th Cir. 1982) (“In
statutory construction, the plain, obvious meaning of the lan-
guage of a statute is to be preferred to a curious or hidden
sense.”). Where an act or omission giving rise to the forfeiture
occurs in a district, the corresponding district possesses juris-
diction over the forfeiture action regardless of its control over
the res.
[4] The District of Northern California properly exercised
jurisdiction over the money in question due to several acts
occurring in that district from which the forfeiture action arose.4
4
District courts asserting jurisdiction on the basis of § 1355(b) should
make clear findings of acts or omissions occurring in the district upon
which the court bases its jurisdiction.
832 UNITED STATES v. HARTOG
The government sufficiently demonstrated that Hartog’s mari-
juana smuggling enterprise, which gave rise to the forfeiture
action, had significant interactions with the Northern District.
Hartog participated in numerous meetings in San Francisco
and Carmel to discuss the importation of marijuana, its distri-
bution, and eventual profit allocation. Hartog used false iden-
tifications to shield his identity during the 1987 smuggling
mailed to his P.O. Box in Carmel, a city located in the North-
ern District of California. Moreover, cash and marijuana sup-
porting the effective smuggling of the second load was found
in a storage locker of his associate in Del Rey Oaks, less than
four miles outside of Monterey, and also located in the North-
ern District. These acts alone satisfy the statutory requirement
of “any act” giving rise to the forfeiture occurring within the
district and invested the District Court of Northern California
with in rem jurisdiction.
B. The District Court Properly Granted Summary Judgment
In Favor of the United States.
[5] Because the government filed its complaint before
August 23, 2000, we apply 19 U.S.C. § 1615 rather than the
subsequently enacted Civil Asset Forfeiture Reform Act, 18
U.S.C. § 983(c). United States v. $80,180.00 in U.S. Cur-
rency, 303 F.3d 1182, 1183-84 (9th Cir. 2002). Under this
framework, the government must first establish probable
cause that the funds seized are associated with drug traffick-
ing or money laundering. United States v. $129,727.00 U.S.
Currency, 129 F.3d 486, 489 (9th Cir. 1997). If probable
cause is established, the burden of proof then shifts to the
claimant, who must prove through a preponderance of the evi-
dence that forfeiture is not appropriate. $80,180.00 in U.S.
Currency, 303 F.3d at 1184. We review the district court’s
grant of summary judgment under this statute de novo. United
States v. Ranch Located in Young, Ariz., 50 F.3d 630, 632
(9th Cir. 1995).
[6] “Determination of probable cause for forfeiture is based
upon a ‘totality of the circumstances’ or ‘aggregate of facts’
UNITED STATES v. HARTOG 833
test.” $129,727.00 U.S. Currency, 129 F.3d at 489. Accord-
ingly, for the government to meet its burden, it must demon-
strate that it had “reasonable grounds to believe that the
[money] was related to an illegal drug transaction, supported
by less than prima facie proof but more than mere suspicion.”
United States v. $22,474.00 in U.S. Currency, 246 F.3d 1212,
1215-16 (9th Cir. 2001) (alteration in original) (citation omit-
ted). “To pass the point of mere suspicion and to reach proba-
ble cause, it is necessary to demonstrate by some credible
evidence the probability that the money was in fact connected
to drugs.” United States v. $30,060.00 in United States Cur-
rency, 39 F.3d 1039, 1041 (9th Cir. 1994) (emphasis in origi-
nal) (citation omitted). Credible hearsay or circumstantial
evidence can be used to support probable cause. See United
States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1434
(9th Cir. 1985); United States v. 22249 Dolorosa St., 190 F.3d
977, 983 (9th Cir. 1999). We have held that “[e]vidence of a
prior drug conviction is probative of probable cause” in drug
trafficking cases. $22,474.00 in U.S. Currency, 246 F.3d at
1217.
The district court did not err in holding that the government
established probable cause that the funds in question related
to drug smuggling and money laundering. Hartog has twice
been convicted on charges related to drug trafficking, first in
1979 and then again in 1993. The government presented state-
ments from Hartog’s ex-wife detailing her involvement in
Hartog’s marijuana smuggling escapades as early as 1974,
including the exorbitant sums of money processed during
their trade. Several of Hartog’s former associates corroborate
her recollection in statements to the F.B.I., likewise recount-
ing the accumulated riches for those smuggling marijuana into
the United States. Credible circumstantial evidence suggests
that Hartog received millions of dollars from these shipments.
Despite the interception of the smaller shipment in Hawaii,
Hartog had told associates that they should still expect to dis-
tribute the larger shipment. Three months later, the govern-
ment found $1.5 million in cash, along with kilograms of
834 UNITED STATES v. HARTOG
marijuana in the locker of a Hartog associate. Hartog’s partner
was arrested that same month trying to launder $7.6 million
at a Nevada casino. Indeed, that Hartog, working under an
alias, moved to Canada and then sought the famed secrecy of
Swiss and Caribbean banks to hold his funds further supports
the government’s case that the money related to illegal activ-
ity.
[7] Hartog argues that the uncertainty that the second larger
shipment ever reached American shores creates a question of
material fact rendering summary judgment inappropriate. See
United States v. Lot 4, Block 5 of Eaton Acres, 904 F.2d 487,
490 (9th Cir. 1990) (“A genuine issue of fact exists when the
nonmoving party produces evidence on which a reasonable
trier of fact could find in its favor, viewing the record as a
whole in light of the evidentiary burden the law places on that
party.”) Had the second shipment never arrived, Hartog con-
tinues, then the money in question could not have derived
from that shipment. However, to establish probable cause, the
government need not prove that the money in question derives
from a specific transaction. 1982 Yukon Delta Houseboat, 774
F.2d at 1435 n.4 (“There is no need to tie [the disputed assets]
to the proceeds of a particular identifiable illicit drug transac-
tion.”) (emphasis in original). We have found that circumstan-
tial evidence generally connecting funds to drug trafficking
suffices to establish probable cause. See, e.g., $22,474.00 in
U.S. Currency, 246 F.3d at 1216-17; $129,727.00 in U.S.
Currency, 129 F.3d at 490. The government would succeed in
demonstrating probable cause even if the second shipment
never arrived. Hartog’s prior previous drug trafficking convic-
tions, the statements of his associates linking him to continu-
ous drug smuggling, and his use of an alias and false
identification while establishing foreign bank accounts all
support probable cause independent of definitive proof of the
second shipment’s arrival.
[8] The district court also correctly determined that Hartog,
after the burden shifted to him, could not prove by a prepon-
UNITED STATES v. HARTOG 835
derance of evidence that forfeiture was inappropriate. See
$80,180.00 in U.S. Currency, 303 F.3d at 1184. Hartog must
demonstrate that the seized funds are unrelated to an illegal
drug transaction. See $129,727.00 U.S. Currency, 129 F.3d at
492. Hartog’s assertion that he inherited the funds from his
father’s estate is not credible. As the district court correctly
observed, Hartog was entitled to slightly less than $120,000
from his father’s estate—ten times less than the amount he
deposited into the accounts. To explain this discrepancy, Har-
tog asserts that his father, Richard Hartog, hid millions of dol-
lars of cash that he then collected upon his father’s death. In
an ostensible effort to support his claim, Hartog submits a
declaration from his late father’s attorney, Edgar Wm. Dwire.
Although Mr. Dwire’s declaration colorfully details some of
Richard’s business ventures, it offers nothing to substantiate
Hartog’s tale. Indeed, Mr. Dwire disclaims any personal
knowledge as to the location of Richard’s personal assets:
Richard never talked about money. He was, in fact,
extraordinarily discreet about his affairs. As a result,
the only information about his wealth that I can
recount has to do with the investments in which I
represented him. . . . Richard [Hartog] kept safe
deposit boxes, and I assume that he used these to
store cash and other liquid assets, but, as I have
stated, Richard was not one to tell anyone more than
he needed to. This complimented me, in that I never
ask for more information than I need.
Nor does Hartog provide any specific information, through
his declaration or discovery responses, that help verify the
amount or even the existence of the assets.5 Hartog’s bare
5
Hartog contends that he cannot substantiate the existence of the funds
due to the government’s destruction of some of the files seized from his
home during its investigation of the 1987 shipments. These files were
destroyed in 1994 after Hartog pled guilty. It is unclear why Hartog
believes the files contained evidence that would substantiate the existence
of the funds in light of his declaration that he “never looked closely at
these records.” Nor does Hartog argue that these documents were improp-
erly destroyed, or explain why these documents cannot be recreated based
on other sources.
836 UNITED STATES v. HARTOG
assertion that he came into an unspecified amount of cash
after his father’s death falls well short of the requisite prepon-
derance of the evidence standard. Nor does this inherently
untrustworthy story create a genuine issue of material fact.
United States v. Check No. 25128 in Amount of $58,654.11,
122 F.3d 1263, 1265 (9th Cir. 1997). Therefore, the district
court did not err by granting summary judgment in favor of
the government.
C. The Government Did Not Unreasonably Delay in
Initiating the Forfeiture Proceedings.
Hartog argues that the government’s delay in initiating the
forfeiture proceedings violated his due process rights. Hartog
points to the government’s nearly five-year delay between
seizing the funds in August 1993 and commencing the action
in June 1998. Applying the four-prong test established in
Barker v. Wingo, 407 U.S. 514, 530 (1972), the district court
concluded that Hartog did not suffer undue delay. We review
the determination of a delay’s constitutionality de novo,
United States v. $292,888.04 in U.S. Currency, 54 F.3d 564,
566 (9th Cir. 1995), and we agree with the district court.
[9] An unreasonable delay between seizure of property and
a forfeiture action violates a claimant’s right to due process.
United States v. Eight Thousand Eight Hundred and Fifty
Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 564 (1983).
To determine whether a delay is unreasonable, we balance
four factors: (1) the length of the delay; (2) the reasons for the
delay; (3) the timing of claimant’s assertion of his rights; and
(4) prejudice to the claimant. Barker, 407 U.S. at 530; Eight
Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S.
Currency, 461 U.S. at 564-69. One factor by itself does not
create a “sufficient condition for finding unreasonable delay.
Rather, these elements are guides in balancing the interests of
the claimant and the government to assess whether the basic
due process requirement of fairness has been satisfied in a
UNITED STATES v. HARTOG 837
particular case.” Eight Thousand Eight Hundred and Fifty
Dollars ($8,850) in U.S. Currency, 461 U.S. at 565.
The first two factors, the length of and reasons for the
delay, bolster Hartog’s argument. In Eight Thousand Eight
Hundred and Fifty Dollars ($8,850) in U.S. Currency, the
Supreme Court found that “short delays—of perhaps a month
or so—need less justification than longer delays. We regard
the delay here—some 18 months—as quite significant.” Id.
Hartog’s delay totaled 58 months. Although not presump-
tively improper, this long delay stretches the elasticity of the
test. Id. Nor does the government successfully explain why
the delay was so extensive. We do credit the government’s
proffered need to investigate before bringing a forfeiture
action, particularly since the government may not rely on evi-
dence acquired after filing the complaint. See United States v.
$191,000 in U.S. Currency, 16 F.3d 1066, 1070 (9th Cir.
1994). We further accept the government’s explanation that
the simultaneous criminal investigation against Hartog
delayed the forfeiture action. However, these rationales can
only go so far in explaining the nearly five-year delay. The
government has failed to fully account for why its investiga-
tion and prosecution of Hartog resulted in such a dispropor-
tionate delay.
[10] However, Hartog’s argument collapses under the
weight of the last two factors. The manner and timing of the
claimant’s assertion of his rights to seized property may miti-
gate an otherwise unreasonable delay in initiating forfeiture.
Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in
U.S. Currency, 461 U.S. at 568-69. A claimant may file a
motion to have his property returned or seek an order compel-
ling the government to file its complaint and “[t]he failure to
use these remedies can be taken as some indication that [the
claimant] did not desire an early judicial hearing.” Id. at 569.
Hartog pursued neither avenue of relief while imprisoned. Not
only did Hartog fail to assert his right to the money, he did
not know his funds had been seized until the government initi-
838 UNITED STATES v. HARTOG
ated its forfeiture action. The government’s action, rather than
depriving Hartog access to the money, put him on notice that
the funds had been seized.
[11] Nor can Hartog claim any prejudice from the delay.
Prior to the forfeiture action, Hartog had no access to the
funds. He was not a signatory to the accounts in question.
Only the government’s seizure of the funds prevented Car-
bonneau, had he so chosen, from moving the funds. Hartog
cannot fairly be considered to have been “deprived of the use
of his property” when, prior to the forfeiture action, he did not
possess it, have access to it, or have knowledge of its seizure.
That the government destroyed some of Hartog’s records dur-
ing this time frame is more than offset by Hartog’s specula-
tion as to what the records may have shown and lack of
attempt to obtain these records initially from the government
or later from third parties. Balancing these four factors, we
conclude that the five-year delay, while lengthy, did not con-
stitute undue delay. Ironically, with the money languishing in
his lawyer’s personal account and Hartog’s apparent igno-
rance as to its seizure, the government’s forfeiture action rep-
resented Hartog’s best opportunity to recover the funds in
question.
III. CONCLUSION
Although the district court applied the incorrect test, it
properly exercised jurisdiction over the approximately $1.67
million under a plain reading of 28 U.S.C. § 1355(b). The dis-
trict court properly granted summary judgment and correctly
held that Hartog did not suffer undue delay.
AFFIRMED.