                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2007

Arevalo v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2813




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-2813
                                   ________________


                                JOSE LUIS AREVALO,

                                           Appellant

                                              v.

                           UNITED STATES OF AMERICA

                      ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                             (D.C. Misc. No. 05-mc-00110)
                       District Judge: Honorable Robert F. Kelly
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  August 14, 2007

         Before: RENDELL, HARDIMAN AND COWEN, CIRCUIT JUDGES

                               (Filed: August 22, 2007)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Appellant, Jose Luis Arevalo, appeals the judgment of the United States District

Court for the Eastern District of Pennsylvania dismissing his motion pursuant to Fed. R.

Crim. P. 41(g). For the reasons that follow, we will vacate and remand.
       On July 13, 1999, the United States Customs Service (“the Government”) seized

$459,370 in United States currency and other personal property. The Government

published a notice of the seizure in the Philadelphia Inquirer on May 10, May 17, and

May 24, 2000. No claim for return of the seized property was filed. On May 31, 2000,

the Government administratively forfeited the seized property.

       On May 30, 2005, Arevalo filed a motion pursuant to Fed. R. Crim. P. 41(g)

seeking the return of seized property.1 In the alternative, Arevalo’s motion asserted that,

if the property had been forfeited, the Government failed to give him proper notice of the

forfeiture proceedings in violation of the Due Process Clause. The Government

responded, arguing that Arevalo’s motion should be dismissed as untimely, and the

District Court entered a memorandum and order dismissing the motion on that basis.

Arevalo appeals.2

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

de novo review over a District Court’s order dismissing an action on statute of limitation

grounds. Lake v. Arnold, 232 F.3d 360, 365 (3d Cir. 2000).

       First, we address the characterization of Arevalo’s “motion.” Although Arevalo


  1
    Arevalo’s motion is dated May 30, 2005. Because Arevalo was incarcerated at the
time he filed his pro se motion, we deem his motion filed on that date. See Houston v.
Lack, 487 U.S. 266, 275 (1988).
  2
    Arevalo has submitted an affidavit attesting that he submitted a timely notice of
appeal to prison officials for mailing to the District Court on February 16, 2006. He also
submitted a copy of that notice of appeal. Accordingly, we deem his notice of appeal
timely. See Houston, 487 U.S. at 275.
                                             2
characterized his action as a Rule 41(g) motion and the District Court’s memorandum and

order refers to it as such, we have held that when the property in question has already

been forfeited, we will construe a Rule 41(g) motion as a civil action in equity. United

States v. McGlory, 202 F.3d 664, 670 (3d Cir. 2000) (en banc). Accordingly, we will

treat Arevalo’s “motion” as an equitable civil action.

       The Government asserts that Arevalo’s action is barred by the five-year statute of

limitation set forth in the Civil Asset Forfeiture Reform Act (“CAFRA”), 18 U.S.C. §

983(e)(3). CAFRA became effective on August 23, 2000, and codified a uniform statute

of limitation for filing an action that challenges a forfeiture proceeding. Id.. CAFRA’s

limitation period runs from the date of the final publication of notice of seizure of the

property. Id. Accordingly, if CAFRA applies, Arevalo’s action was filed after the

expiration of the limitation period.3

       We have held that “CAFRA does not apply retroactively to civil forfeiture

proceedings commenced before August 23, 2000.” United States v. One “Piper” Aztec,

321 F.3d 355, 359 (3d Cir. 2003). We have also held that “the commencement of a

forfeiture proceeding can mean only the point when the government first files its

complaint for forfeiture in rem under 18 U.S.C. § 981(b) . . . . The proceeding

commences with the government’s action and ends when the final appeal is exhausted.

No other interpretation is sensible.” Id.


  3
     Here, the final publication was on May 24, 2000. Arevalo did not file his civil action
until May 30, 2005, six days after the expiration of the limitation period.
                                              3
       Arevalo argues that, because the challenged forfeiture proceeding was commenced

prior to CAFRA’s effective date, CAFRA’s limitation period should not apply. We

agree. The forfeiture proceeding Arevalo seeks to challenge commenced prior to

CAFRA’s effective date; accordingly, CAFRA does not apply.

       The Government argues that, because the administrative portion of the forfeiture

proceeding had concluded, Arevalo’s action should be construed as a new proceeding

subject to CAFRA’s limitation period. Although Arevalo’s civil action commenced after

CAFRA’s effective date, CAFRA applies only to a forfeiture proceeding that commenced

on or after August 23, 2000. One “Piper” Aztec, 321 F.3d at 359. Thus, regardless of

when Arevalo filed his civil action, because the challenged forfeiture proceeding

commenced prior to CAFRA’s effective date, CAFRA’s limitation period does not apply.

       Pre-CAFRA actions involving the forfeiture of property by the United States

without proper notice are subject to a six-year limitation period. See 28 U.S.C. § 2401(a);

Menkarell v. Bureau of Narcotics, 463 F.2d 88, 91 (3d Cir. 1972); United States v. One

Toshiba Color Television, 213 F.3d 147, 158 (3d Cir. 2000) (en banc). The earliest time

that Arevalo’s claim could have accrued was July 13, 1999, when the property was

seized. See Ikelionwu v. United States, 150 F.3d 233, 238 (2d Cir. 1998). Arevalo filed

his action on May 30, 2005, less than six years later. Accordingly, his action is not barred

by § 2401(a)’s limitation period.

       For the foregoing reasons, we will vacate the District Court’s order and remand for

further proceedings.

                                             4
