

                     NOT FOR PUBLICATION                                                    

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 96-1936

                        UNITED STATES,

                          Appellee,

                              v.

                   BILLY RAY MCDOWELL, JR.,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Raymond L. Acosta, U.S. District Judge]                                                                

                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Campbell, Senior Circuit Judge,                                                         
                  and Boudin, Circuit Judge.                                                       

                                         

Billy Ray McDowell, Jr. on brief pro se.                                   
Guillermo Gil, United States Attorney, and Joseph J.  Frattallone,                                                                             
Assistant United States Attorney, on brief for appellee.

                                         

                         June 9, 1997
                                         

     Per Curiam.   Billy Ray McDowell  was convicted of  drug                           

trafficking offenses in June  1988.  In March 1996,  he moved

in the  district court  for the  return of  $4000 in  cash, a

cellular  telephone,  and a  briefcase  containing documents,

each of which he claims  were seized from him at the  time of

his  arrest in  February 1988;  according to  the government,

these items  were later  administratively forfeited.   See 21                                                                      

U.S.C.   881 (providing for  forfeiture of property or  money

used to facilitate or traceable to a drug offense); 19 U.S.C.

   1607-09 (outlining administrative forfeiture procedure for

items worth  $500,000 or  less).  In  his collateral  attack,

McDowell claims that he received no notice of the forfeitures

and alleges that they  violated his right to due  process and

should be invalidated.     See United States  v. Giraldo,  45                                                                    

F.3d 509, 511-12 (1st Cir. 1995) (per curiam).  

     The short  response submitted  by the government  in the

district court  was apparently  intended to suggest  that the

forfeitures  were  in  fact  valid.    But  to  support  this

suggestion, the  government simply  asked  the district court

to "take notice" of the fact that the  cash and telephone had

been   "administratively   forfeited,"   as    evidenced   by

declarations of forfeiture for  these two items, which merely

recited that notice had been  sent to all interested persons.

The  government also reported that it  had neither record nor

recollection of a seized briefcase.  

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     The district court denied the defendant's motion, citing

the  "facts" provided by  the Government--facts pertaining to

the administrative forfeiture proceedings and not the  merits

of the forfeiture.   The defendant now appeals.   The parties

repeat  the  arguments  advanced below,  with  the government

adding the contention that the district court in  Puerto Rico

lacked jurisdiction to decide the motion because the property

was seized in Texas.

     1.   With  respect  to  the  cell phone  and  cash,  the

defendant  appears  to  have an  almost  hopeless  case.   He

concedes  that the seizure occurred at the time of the arrest

that  led to  his  conviction, as  he  attempted to  open  an

airport  locker  which he  thought  contained  cocaine.   See                                                                         

United  States v.  McDowell, 918  F.2d 1004,  1006 (1st  Cir.                                       

1990).  The facts  recited in the first appellate  opinion in

this  case also reveal that  McDowell carried $4000 cash, the

exact  amount of the  delivery fee for  the drugs, separately

from other  funds, and  that he repeatedly  communicated with

coconspirators by phone.  McDowell, 918 F.2d at 1006.                                                

     On the  surface, the  government's case  looks extremely

strong.   See United States v. One  Lot of U.S. Currency, 103                                                                    

F.3d  1048, 1053-54  (1st  Cir. 1997)  (forfeiture proper  if

government  shows  probable  cause  to  believe  that  seized

property  has a  sufficient  nexus to  illegal activity,  and

defendant fails to rebut);  United States v. One Lot  of U.S.                                                                         

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Currency,  927 F.2d 30, 32 (1st Cir. 1991) (probable cause to                    

believe  that cash and car were forfeitable where cash amount

equaled the  promised purchase  price in a  sting transaction

and the defendant drove the car to the airport meeting place,

apparently  planning to  use  it to  transport the  purchased

drugs).   Nothing in the  defendant's papers explains  how he

expects to avoid forfeiture, even if the prior administrative

proceedings were procedurally defective.  

     Nevertheless,  this is only  our own reconstruction; the

government has not made, and the  defendant has not answered,

such  a  claim; and  there is  no  reason why  the government

should  not  turn square  corners  even  if it  is  defending

against a  dubious collateral attack on a  forfeiture.  Here,

the record contains no response to the defendant's allegation

that he had not received adequate notice, which in some cases

might  negate a  forfeiture's validity,  Giraldo, 45  F.3d at                                                            

512,  and the  government did  not attempt  to show  that the

property was  plainly forfeitable,  giving  the defendant  an

opportunity to answer.

     There  is some conflict  in the law  as to  who needs to

show  what  when the  defendant makes  a  claim like  the one

before us.

Compare United  States v. Deninno,  103 F.3d 82,  85-86 (10th                                             

Cir. 1996)  with Boero  v. DEA,  111 F.3d 301,  306 (2d  Cir.                                          

1997).  We see no reason to lay down any general rule.  But

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in the present case we think that an adequate answer needs to

be   provided  by   the  government--whether   procedural  or

substantive--before  defendant's  motion  may   be  summarily

denied.

     2.   As   to  McDowell's   further  allegation   that  a

briefcase containing documents  was improperly forfeited, the

government  says that it has no record  of such an item.  But

it  points to no inventory list or similar evidence; nor does

it provide  any other explanation for  the divergence between

the defendant's  version of  the events and  the government's

records.  

     The  government  may  have an  excellent  laches defense

since  the defendant waited eight years to file a motion that

could have been made promptly;  this delay might help explain

the  gaps in the government's evidence.   Cf. Angel-Torres v.                                                                      

United  States, 712 F.2d 717,  719-20 (1st Cir. 1983) (motion                          

for  return of  property  subject to  equitable  principles).

However, as  the government did  not assert laches  below and

the district court made  no relevant findings, we  decline to

affirm the denial of the motion with respect to the briefcase

on that ground.

     3.   The government belatedly  says on  appeal that  the

defendant brought  his claim in  the wrong court.   We do not

think that this minimally briefed case is a vehicle for us to

determine  where  a  post-conviction  motion  for  return  of

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property  should  be made  if  the property  seizure  and the

related criminal  trial  occurred in  different  districts--a

question on  which other  circuits disagree.   Compare United                                                                         

States  v. Giovanelli,  998 F.2d 116,  118-19 (2d  Cir. 1993)                                 

(venue  proper  in  prosecuting  district)  and  Thompson  v.                                                                     

Covington,  47 F.3d  974,  975 (8th  Cir. 1995)  (per curiam)                     

(venue  proper  only  in prosecuting  district)  with  United                                                                         

States  v. Garcia, 65 F.3d  17, 20-21 (4th  Cir. 1995) (venue                             

proper only in seizing district).  While  the district  court

is free to hear  the government's argument on this  point, it

may be simpler to assume jurisdiction arguendo, assuming that                                                          

the  government  has  an adequate  substantive  or procedural

answer  to defendant's  claim.    In  any event,  we  decline

ourselves to affirm  the dismissal based on  a venue argument

never presented to the district court.

     The district court's judgment  is vacated and the matter                                                          

remanded   for  further  proceedings   consistent  with  this                    

opinion.

     It is so ordered.                                 

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