                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            APR 11 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30218

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00226-BR-1

 v.
                                                 MEMORANDUM*
GERALD LEROY BARNES, II,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                       Argued and Submitted March 10, 2016
                                Portland, Oregon

Before: FISHER, BERZON, and WATFORD, Circuit Judges.

      Gerald Leroy Barnes, II appeals the district court’s denial of his request for

return of several firearms seized by the U.S. Drug Enforcement Administration

(“DEA”) during an investigation. Those firearms were subsequently forfeited to

the government.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Barnes contends that the DEA sent him inadequate notice before forfeiting

his firearms, in that the notice failed adequately to inform him of the consequences

of petitioning for remission of the firearms, rather than filing a claim for their

return. He also contends that his letter in response to the forfeiture notice satisfied

the requirements for both a petition for remission and a claim, and that therefore

the United States should not have construed his letter as solely a petition for

remission.

       The notice sent to Barnes is quite problematic. It does not identify the main

distinction between the two different routes for forfeiture. Remission assumes the

validity of the forfeiture, and the forfeiting agency returns the forfeited property

only if it decides, within its discretion, to excuse the grounds for forfeiture. See 28

C.F.R. § 9.1 et seq. By contrast, the filing of a claim is in the nature of a legal,

substantive challenge to the merits of the forfeiture. See 18 U.S.C. § 983(a)(2).

The only indication of this distinction in the notice is the word “remission,” not

commonly used or understood to mean a discretionary act of grace, and the

addition of the word “(pardon)” immediately following “remission” in the

sentence, which is awkwardly located and not explained. The government could

have much more clearly stated this most important distinction in the notice, as it

did in its letter forfeiting Barnes’ property, yet it did not.


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       In addition, the notice states that a property owner seeking relief from

forfeiture may file a petition for remission “and/or” a claim but does not explain

what happens when the property owner does so. For instance, the notice does not

explain that the filing of a claim terminates the administrative forfeiture. See

Malladi Drugs & Pharms., Ltd. v. Tandy, 552 F.3d 885, 889 n.1 (D.C. Cir. 2009)

(“[A]s a practical matter, filing a claim to contest the forfeiture in court ends the

administrative forfeiture from which an owner would petition for remission.”).

The notice also fails to explain what happens to the petition for remission if a claim

is filed. Does the filing of a claim moot the petition for remission? Cf.

Conservation Force v. Salazar, 646 F.3d 1240, 1242–43 (9th Cir. 2011)

(describing remission and a claim as “alternative . . . remedies” (quoting Malladi,

552 F.3d at 890)). Or does the petition remain viable notwithstanding the filing of

a claim? See 28 C.F.R. § 9.3(a) (stating that petitions for remission “shall be

considered any time after notice until the property has been forfeited” (emphasis

added)).

       Nonetheless, despite the notice’s inadequacies, the record makes clear that

Barnes, in fact, meant to request remission, not to file a claim. His letters to the

DEA expressly requested “remission” of the firearms. When the DEA responded

to his first letter, it explicitly characterized Barnes’ letter as a petition for


                                              3
remission, a characterization Barnes did not correct in his further communications.

In addition, Barnes had access to a lawyer during the forfeiture process, and some

evidence in the record indicates that he discussed the process with his then-

attorney. Moreover, nowhere has Barnes asserted that he was actually confused

about the fact that he was filing a petition for discretionary relief from forfeiture,

rather than a claim of a legal or factual right to not have his property forfeited. His

declaration, filed with the district court in support of his motion for return of

property, does not attest to such confusion. Finally, because Barnes was not taken

to have filed a claim, his petition went forward. For these reasons, any inadequacy

in the notice was harmless, and Barnes’ contention that the DEA should not have

construed his letters as solely requests for remission is not persuasive.

      To the extent that Barnes also seeks equitable relief, that relief is not

available to him, for the reasons discussed above.

      AFFIRMED.




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