                                                                                  FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                           December 3, 2014
                       UNITED STATES COURT OF APPEALS                    Elisabeth A. Shumaker
                                                                             Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                           No. 14-6078
                                                      (D.C. No. 5:09-CR-00091-C-1)
 EDWARD KATSUAKI SHIGEMURA,                                   (W.D. Okla.)

               Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

       This is the third appeal in which Appellant Edward Shigemura seeks the return of

cash or other property seized at the time of his arrest in February 2009. In this case,

Appellant appeals the district court’s denial of his motion to recall a declaration of

administrative forfeiture of $62,368.93—the sum total of the cash seized following a


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
search of Appellant, the car he was driving, and the passengers in his car.

       On February 24, 2009, the Oklahoma Highway Patrol stopped Appellant after a

trooper observed him committing a traffic violation. State troopers searched Appellant,

the car he was driving, and the car’s two passengers. During the search, the state troopers

found a total of $62,368.93 in currency, five loaded handguns, a rifle, and other items

suggestive of criminal activity, including a police scanner, flex cuffs, duct tape, leather

and latex gloves, pocket knives, and a hat with the letters “FBI” on it.

       State authorities turned the cash over to the federal government pursuant to a

seizure warrant “as money furnished or intended to be furnished in exchange for a

controlled substance under 21 U.S.C. § 881(a)(6).” United States v. Shigemura, 664 F.3d

310, 311 (10th Cir. 2011). On May 7, 2009, the FBI provided written notice to Appellant

that he could file a claim to contest the intended administrative forfeiture of the cash.

Appellant never filed a claim, and the FBI issued a declaration of forfeiture on September

29, 2009.

       Meanwhile, Appellant was tried and convicted on one count of being a felon in

possession of a firearm. The evidence introduced at his trial did not include any mention

of the large amounts of cash found during the search. However, evidence of the cash was

relevant at sentencing, where the district court found that Appellant’s trip was “made for

the purpose of dealing in illegal drugs” and that the “funds were being transported in

connection with a drug felony.” (R. Vol. III at 275.) The court accordingly imposed a

sentencing enhancement for possession of a firearm in connection with another felony.

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Appellant’s conviction and sentence were affirmed on appeal. See United States v.

Kitchell, 653 F.3d 1206 (10th Cir. 2011).

       Fourteen months after the FBI issued the declaration of forfeiture, Appellant filed

a motion under Rule 41(g) of the Federal Rules of Criminal Procedure, in which he

sought the return of $44,853.39—the money recovered from his person and his vehicle,

but not from his passengers—as well as various items of personal property seized at the

time of his arrest. We affirmed the district court’s conclusion that it lacked jurisdiction to

consider Appellant’s 41(g) motion as it related to the forfeiture of the cash. However, we

remanded for the district court to consider whether any of Appellant’s personal property

was in the possession of the federal government and might be recoverable under Rule

41(g). See Shigemura, 664 F.3d at 312-13.

       On remand, the district court ordered the government to return the two items it had

in its possession: a cell phone and a pair of running shoes. Appellant claimed the

government had lost other personal property turned over by the Oklahoma Highway

Patrol, and he accordingly filed an administrative claim for $452 to the FBI, which denied

his claim as untimely. Appellant then filed a claim in the district court under the Federal

Tort Claims Act, seeking $452 in damages for loss of personal property. The district

court concluded that Appellant’s FTCA claim failed because Appellant’s personal

property was not seized for the purpose of forfeiture, or at least not solely for this

purpose. See 28 U.S.C. § 2680(c); see also Foster v. United States, 522 F.3d 1071, 1075

(9th Cir. 2008) (holding that the FTCA waiver of sovereign immunity under § 2680(c)’s

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“applies only to property seized solely for the purpose of forfeiture”). We affirmed this

conclusion on appeal. See Shigemura v. United States, 504 F. App’x 678, 680 (10th Cir.

2012).

         Appellant subsequently filed the motion underlying this appeal—a motion to recall

the administrative declaration of forfeiture of the $62,368.93 in cash recovered during the

search of Appellant, his car, and his passengers. As the basis for this relief, he contended

the government violated his due process rights when it failed to provide him with notice

of the intended forfeiture within sixty days of the seizure. For support, he relied on 18

U.S.C. § 983(a)(1)(A)(i), which provides:

         Except as provided in clauses (ii) through (v), in any nonjudicial civil
         forfeiture proceeding under a civil forfeiture statute, with respect to which
         the Government is required to send written notice to interested parties, such
         notice shall be sent in a manner to achieve proper notice as soon as
         practicable, and in no case more than 60 days after the date of the seizure.

         The district court denied Appellant’s motion to recall the declaration, holding that

Appellant was relying on the wrong portion of the statute to determine the length of the

notice period. Under one of the enumerated exceptions to § 983(a)(1)(A)(i), a ninety-day

notice period applies “[i]n a case in which the property is seized by a State or local law

enforcement agency and turned over to the Federal law enforcement agency for the

purpose of forfeiture under Federal law.” 18 U.S.C. § 983(a)(1)(A)(iv). Here, the cash

was seized by the state highway patrol and then turned over to the FBI, which provided

notice of the forfeiture to Appellant seventy-two days after the initial seizure of the cash.

The district court accordingly rejected Appellant’s argument that he did not receive

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timely notice of the intended forfeiture.

       On appeal, Appellant argues the longer notice period provided by §

983(a)(1)(A)(iv) is not applicable for three reasons: (1) because Appellant was ultimately

tried only on federal charges, the state troopers were acting as agents of the federal

government at the time of Appellant’s arrest, and thus the cash was not “seized by a State

or local enforcement agency”; (2) as the district court concluded in denying Appellant’s

earlier FTCA claims, Appellant’s property was not seized or turned over to the federal

government “for the purpose of forfeiture”; and (3) under the rule of lenity and principles

of strict scrutiny, we should apply the statutory provision that will disfavor forfeiture by

forcing the government to comply with a shorter notice period. Appellant also argues the

district court violated his procedural rights by issuing a decision before Appellant had had

time to reply to the government’s response brief.

       We conclude that none of these arguments entitle Appellant to relief. First, even

assuming that 18 U.S.C. § 983(a)(1)(A)(iv) is inapplicable when state law enforcement

officers act as agents of the federal government, there is no evidence of such an agency

relationship in this case. The fact Appellant was ultimately prosecuted only on federal

charges does not retroactively transform the Oklahoma Highway Patrol’s independent

decision to search Appellant’s car and seize the relevant evidence into a search and

seizure by the federal government for purposes of § 983. Second, unlike the personal

property that formed the basis for the district court’s decision in Appellant’s FTCA case,

the cash at issue in this appeal was in fact turned over to the federal government for the

                                             -5-
purpose of forfeiture. As we explained in Shigemura, 664 F.3d at 311, “[b]efore trial, the

federal government obtained a seizure warrant for the $62,368.93 as money furnished or

intended to be furnished in exchange for a controlled substance under 21 U.S.C. §

881(a)(6),” which provides for the forfeiture of certain types of property used in criminal

activities. The declaration of administrative forfeiture also notes that the cash was turned

over to the FBI was for the purpose of “civil forfeiture.” (R. Vol. I at 96.) We

accordingly agree with the district court that the ninety-day notice period applied because,

as required for § 983(a)(1)(A)(iv) to apply, the property at issue in this appeal was seized

by a state or local law enforcement agency and then turned over to a federal law

enforcement agency for the purpose of forfeiture under federal law. Finally, we are not

persuaded that either the rule of lenity or principles of strict scrutiny are applicable to this

appeal. Cf. Russello v. United States, 464 U.S. 16, 29 (1983) (holding that the rule of

lenity does not apply to the RICO forfeiture provision because the language of that

provision is clear). We thus see no error in the district court’s denial of Appellant’s

motion to recall the declaration of forfeiture.

       As for Appellant’s procedural objection to the district court’s decision, under all of

the circumstances of this case, “[w]e find neither prejudice to [Appellant] nor an abuse of

the district court’s discretion in ruling before the filing of a reply brief.” Walter v.

Morton, 33 F.3d 1240, 1244 (10th Cir. 1994).




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      The district court’s ruling is AFFIRMED. We GRANT Appellant’s motion to

proceed in forma pauperis on appeal.

                                             Entered for the Court



                                             Monroe G. McKay
                                             Circuit Judge




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