
USCA1 Opinion

	




                                 NOT FOR PUBLICATION                                 ___________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST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.                                           -2-                                         -2-                 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.                                        _____________    ________________                                         -3-                                         -3-            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                                         -4-                                         -4-            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                                         -5-                                         -5-            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.                 ________________                                         -6-                                         -6-
