
USCA1 Opinion

	




          October 11, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                              ____________________        No. 95-1160                                     UNITED STATES,                                      Appellee,                                          v.                                   BRYON S. MISEPH,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Bryon Miseph on brief pro se.            ____________            Donald K.  Stern, United States  Attorney, and  C. Jeffrey Kinder,            ________________                                _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  In October 1993, defendant Bryon Miseph was                 __________            sentenced to  a combined 100-month prison  term following his            guilty  plea  to  cocaine  and  firearms  offenses.    Nearly            fourteen  months later, he filed a motion under Fed. R. Crim.            P.  41(e) for the return  of some eighteen  firearms that had            been taken from his  residence following his arrest--claiming            that the  items  had  been unlawfully  seized  and  had  been            unrelated  to  his  criminal  activity.    In  response,  the            government stated that, after  notice to all known interested            parties  had been provided and  no claim had  been filed, the            property had been administratively forfeited and subsequently            destroyed.    Evidence  attesting   to  the  declaration   of            forfeiture and  the destruction  was provided.   The district            court denied  the motion the following  day--finding that the            property was no longer  in existence and that, in  any event,            it  had been "lawfully seized  and forfeited."  Defendant now            appeals,  claiming  that  he  never received  notice  of  the            forfeiture.   He notes in this regard that, pursuant to court            order,  he  had been  confined  under "house  arrest"  in his            parents' residence in East Falmouth, Massachusetts during the            relevant period.                 The issue before  us is  a narrow one.   The  government            acknowledges  that  a  district  court  has  jurisdiction  to            entertain  collateral due  process attacks  on administrative            forfeitures.  See,  e.g., United States  v. Giraldo, 45  F.3d                          ___   ____  _____________     _______            509,  511 (1st Cir. 1995)  (per curiam) (listing  cases).  It            also  acknowledges that  the destruction  of the  property in            question here did not  render such an action moot--suggesting            that the  motion could  have  been treated  as an  "equitable            claim for damages," see, e.g., Rufu v. United States, 20 F.3d                                ___  ____  ____    _____________            63, 65 (2d Cir.  1994); United States v. Martinson,  809 F.2d                                    _____________    _________            1364, 1366-69 (9th Cir. 1987), and noting that a civil action            for damages would in any event lie, see, e.g., Mora v. United                                                ___  ____  ____    ______            States, 955 F.2d 156,  160 (2d Cir. 1992); cf.  United States            ______                                     ___  _____________            v.  Mosquera,  845  F.2d  1122,  1126 (1st  Cir.  1988)  (per                ________            curiam).   The government  simply contends that,  as the Rule            41(e) motion  was properly  denied, we should  affirm without            prejudice  to   defendant  filing   a  separate   action  for            appropriate relief.                 We  agree.    Defendant   has  raised  his  due  process            challenge for the  first time only on  appeal.  As  such, the            district  court's ruling  obviously  cannot be  considered an            abuse  of discretion  based upon  the record then  before the            court.  To be  sure, it might have  been better practice  had            the  district  court  afforded defendant  an  opportunity  to            address  the  government's  opposition before  ruling.    Yet            defendant (who claims that he first learned of the forfeiture            and  destruction  by  reading  such  opposition)  could  have            presented his due process challenge to the lower court by way            of  a timely motion for reconsideration, but failed to do so.                                         -3-            Under these circumstances, we  think it appropriate to affirm            the  district  court's  order,  albeit  without prejudice  to            defendant's  assertion  of  his   due  process  claim  in  an            independent action under 28 U.S.C.   1331.                 Affirmed.                   _________                                         -4-
