     Case: 14-60487   Document: 00513495503    Page: 1   Date Filed: 05/06/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals

                               No. 14-60487
                                                                         Fifth Circuit

                                                                       FILED
                             Summary Calendar                       May 6, 2016
                                                                  Lyle W. Cayce
JUAN ANTONIO VAZQUEZ,                                                  Clerk


                                          Plaintiff-Appellant

v.

UNITED STATES DRUG ENFORCEMENT ADMINISTRATION,

                                          Defendant-Appellee


                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:
      Juan Antonio Vazquez filed an action against the Drug Enforcement
Administration (DEA) seeking to set aside the 2006 forfeiture of more than
$7,000, and citing 28 U.S.C. § 1331 and Federal Rule of Criminal Procedure
41. The district court held that the forfeiture was based on 21 U.S.C. § 881
and that Vazquez’s exclusive remedy for setting aside the forfeiture was found
at 18 U.S.C. § 983(e). The district court granted summary judgment and
dismissed the action as untimely under the five-year limitations period of
§ 983(e)(3). Vazquez appealed, and this court granted him leave to appeal in
forma pauperis (IFP)Vazquez’s property was forfeited pursuant to 21 U.S.C. §
881, and a motion under 18 U.S.C. § 983(e) is the appropriate recourse to set
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aside a forfeiture conducted pursuant to 21 U.S.C. § 881. 1 See 18 U.S.C. §
983(e)(5); 18 U.S.C. § 983(e)(1) (“Any person entitled to written notice in any
nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does
not receive such notice may file a motion to set aside a declaration of forfeiture
. . . .”); 18 U.S.C. § 983(i) (defining “civil forfeiture statute” as “any provision of
Federal law providing for the forfeiture of property other than as a sentence
imposed upon conviction of a criminal offense” and as excluding forfeitures
conducted under Title 19). The procedures set forth in 19 U.S.C. §§ 1602–1621
are incorporated in 21 U.S.C. § 881. See 21 U.S.C. § 881(d); United States v.
Morgan, 84 F.3d 765, 766 n.2 (5th Cir. 1996) (describing how the procedural
provisions set forth in 19 U.S.C. §§ 1602–1621 are incorporated by reference in
21 U.S.C. § 881(d)). Because Vazquez’s property was forfeited under 21 U.S.C.
§ 881, the five-year statute of limitations in 18 U.S.C. § 983(e)(3) applies. 2
Conard v. United States, 470 F. App’x 336, 339 (5th Cir. 2012) 3 (“When CAFRA
was enacted in 2000, its statutory provisions became ‘the exclusive remedy for
seeking to set aside a declaration of forfeiture under a civil forfeiture statute.’”
(quoting 18 U.S.C. § 983(e)(5))).

       1   In his motion to proceed IFP, Vasquez argued that the six-year limitations period
of 28 U.S.C. § 2401(a) applies, apparently relying on Clymore v. United States, 217 F.3d 370,
373 (5th Cir. 2000). He does not repeat that argument in his merits brief. In any event, that
case is distinguishable. Clymore concerned a forfeiture conducted prior to the enactment of
the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), “which overhauled procedures for
most federal civil and nonjudicial forfeiture actions initiated after August 23, 2000, including
those brought against property subject to forfeiture under 18 U.S.C. § 981.” Mesa
Valderrama v. United States, 417 F.3d 1189, 1195 (11th Cir. 2005); see also Arevalo v. United
States, 238 F. App’x 869, 871 (3d Cir. 2007) (“Pre-CAFRA actions involving the forfeiture of
property by the United States without proper notice are subject to a six-year limitation
period.”). Accordingly, the six-year statute of limitations does not apply to Vazquez’s claim.
       2 In his merits brief, Vazquez maintained that that the correct limitations period was
provided by 19 U.S.C. § 1621. However, that statute provides the time limits in which the
Government may seek forfeiture and is accordingly not applicable to Vazquez’s claim to set
aside the forfeiture.
       3 Although Conard is not “controlling precedent,” it “may be [cited as] persuasive

authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).


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                                 No. 14-60487

      We liberally construed Vazquez’s motion to proceed IFP on appeal as
raising equitable tolling. We need not decide whether equitable tolling applies
to a statute such as 18 U.S.C. § 983(e) that itself seems designed to cut off
rights in full after a lengthy period of time for a person who failed to receive
the requisite statutory notice. Cf. Landry v. United States, 600 F. App’x 216,
218 n.4 (5th Cir. 2015) (noting that the litigant in that case sought equitable
tolling but failed to establish its elements). “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
On the record before us, Vazquez was not diligent in pursuing his rights.
Although Vazquez sought return of the money in the weeks immediately
following its seizure, he subsequently waited over two years before inquiring
into the status of the property. With such an extreme delay, it cannot be said
that Vazquez was diligent. See Stroman v. Thaler, 603 F.3d 299, 301–03 (5th
Cir. 2010); see also Manning v. Epps, 688 F.3d 177, 186 (5th Cir. 2012)
(“[C]omplete inactivity” for nineteen months “does not constitute diligence”).
      For the foregoing reasons, we AFFIRM the judgment of the district court.
The motions by Vazquez and the DEA to supplement the record on appeal with
documents related to the adequacy of notice are DENIED.




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