United States v. 1996 Freightliner Fld Tractor VIN 1FUYDXYB0TP822291

634 F.3d 1113, 2011 U.S. App. LEXIS 4750, 2011 WL 833324

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2011
• Docket: 09-15821
• Status: Published

Opinions

Opinion by Judge KLEINFELD; Concurrence by Judge THOMAS.

OPINION

KLEINFELD, Circuit Judge:

We address the government’s time limit for filing forfeiture complaints.

I. Facts

Regalado got caught driving a ton of marijuana across the border, hidden under a load of rotten tomatoes. He claimed lack of knowledge, but was convicted in a jury trial. The indictment on which he was convicted charged that he “did knowingly and intentionally possess with intent to distribute.”

Before trial, the Justice Department sent Regalado notice that the government had seized his truck, a Freightliner big rig, and the refrigerated trailer he had hauled with it, for forfeiture. His attorney sent timely notices of his claim as owner of the tractor and as bailee of the trailer.

After Regalado was convicted, the government filed a complaint for forfeiture. Regalado filed a verified claim for the truck and trailer, alleging that he was the owner of one and bailee of the other, and that the government’s complaint was untimely. On cross-motions for summary judgment, the district court ruled in favor of the government, and Regalado appeals.

II. Analysis

The only issue before us is timeliness. The applicable statute and regulation can arguably be read to give the government sixty days from a claim of ownership to file a complaint, in which case the government filed too late, or ninety days, in which case its complaint was timely. Regalado’s claim was received May 5, 2008, and the government’s in rem complaint was filed July 30, 2008.

The forfeiture was pursuant to 21 U.S.C. § 881(a)(4), making conveyances used to transport illegal controlled substances forfeitable.¹ That statute generally imports other statutes for purposes of setting out the procedure.² The relevant provisions are at 18 U.S.C. § 983.³

Under 18 U.S.C. § 983, the government generally has ninety days after a claim has been filed to file a complaint for forfeiture.⁴ We conclude that this time limit controls, and the government’s complaint was timely.

But there is another provision of law giving the government only sixty days, which would, if applicable, make its complaint in this case untimely. That provision, in a regulation, provides that the government must file its forfeiture complaint within sixty days of the filing of the claim and cost bond, or else the court generally must order return of the conveyance and bond.⁵

Regalado argues that because the regulation specifically addresses forfeiture of conveyances, and the statute addresses forfeitures generally, the more specific provision controls. The argument is not persuasive because 21 U.S.C. § 881, the statute making 18 U.S.C. § 981 applicable, is itself addressed to conveyances.⁶ The government argues that because 18 U.S.C. § 983(a)(1) says “any,” and the ninety day time limit is in Section 983(a)(3), the ninety day limit applies. That argument is unpersuasive because the word “any” is in a sentence requiring the government to send its notice within sixty days of the seizure, not the ninety day time limit for complaints.

The government also argues that because Regalado did not file a cost bond, he is not entitled to the sixty day time limit of the regulation.⁷ This argument is correct. The regulation requiring the government to file its complaint within sixty days runs the sixty-day window not merely from filing of the claim, but from “filing of the claim and cost bond.” Regalado filed only a claim, not a cost bond.

Arguably the regulation is no longer in effect, because the statute it was issued to effectuate, 21 U.S.C. § 888, was repealed, and the statute repealing 21 U.S.C. § 888 instituted the ninety-day time limit.⁸ But the government conceded at oral argument that the regulation remains in effect, so we have no reason here to question whether it remains in effect. Generally, the government is bound by the regulations it imposes on itself.⁹

We need not decide whether the statute “preempts” the regulation, as the government argues, because they are not in conflict. We look at the words to see what they mean, and at their practical application to see whether rational lawmakers might have intended that meaning.¹⁰ The statute and regulation can be read together to provide a consistent and coherent rational scheme. If the claimant to a conveyance files a cost bond as well as a claim, then the government has only sixty days to file a complaint. The claimant need not file a cost bond though. If the claimant files a claim but does not file a cost bond, then the government has ninety days to file a complaint.

This reading follows the literal meaning of the words. Instead of assuming that the Justice Department clumsily overlooked its own regulation, this reading attributes practical sense so that rational lawmakers might have intended it. A commercial renting company might want to bail out a conveyance its customer had used while the forfeiture litigation went forward, because the bond expense would be offset by subsequent rental revenue. But if an individual without the money or the loss of revenue concerns of a rental company, perhaps a friend who had loaned the vehicle ignorant of how it was to be used, sought its return, he could still do so without the burden of a bond he might not be able to afford. For all we know, the Justice Department kept the regulation even though the statute it had been issued to effectuate had been repealed, just so that commercial rental businesses would retain an expedited means of getting their cars, trucks, boats, and planes back.

Regalado did not file a cost bond. The government therefore was entitled to ninety days under 18 U.S.C. § 983. It filed within that time.

AFFIRMED.

1 . Section 881 provides in relevant part:

(a) Subject property. The following shall be subject to forfeiture to the United States and no property right shall exist in them:

(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) ["All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter.’’], (2) ["All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or listed chemical in violation of this subchapter.”], or (9)["A11 listed chemicals, all drug manufacturing equipment, all tableting machines, all encapsulating machines, and all gelatin capsules, which have been imported, exported, manufactured, possessed, distributed, dispensed, acquired, or intended to be distributed, dispensed, acquired, imported, or exported, in violation of this subchapter or subchapter II of this chapter.”]

21 U.S.C. § 881(a)(4).

2 . 21 U.S.C. § 881(d). That section provides in full:

The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer.

Id.

3 . 18 U.S.C. § 983. See United States v. 144, 774 Pounds of Blue King Crab, 410 F.3d 1131, 1134 (9th Cir.2005) ("[18 U.S.C. § 983] sets forth the procedures used in all civil forfeitures under federal law unless the particular forfeiture statute is specifically exempted in 18 U.S.C. § 983(i)(2).”).

4 . 18 U.S.C. § 983(a)(3)(A). That section provides in full:

Not later than 90 days after a claim has been filed, the Government shall file a complaint for forfeiture in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims or return the property pending the filing of a complaint, except that a court in the district in which the complaint will be filed may extend the period for filing a complaint for good cause shown or upon agreement of the parties.

5 . 21 C.F.R. § 1316.97. That section provides in full:

(a) The United States Attorney shall file a complaint for forfeiture of the conveyance within 60 days of the filing of the claim and cost bond.

(b) Upon the failure of the United States Attorney to file a complaint for forfeiture of a conveyance within 60 days unless the court extends the 60-day period following a showing of good cause, or unless the owner and the United States Attorney agree to such an extension, the court shall order the return of the conveyance and the return of any bond.

6 . Section 881(a)(4) makes “conveyances” subject to forfeiture; Section 881(b) makes Section 981(b) the applicable seizure procedure.

7 . 21 C.F.R. § 1316.97.

8 . Civil Asset Forfeiture Reform Act of 2000, Pub.L. No. 106-185 (April 25, 2000).

9 . See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Church of Scientology of Cal. v. United States, 920 F.2d 1481, 1487 (9th Cir.1990) ("Pursuant to the Accardi doctrine, an administrative agency is required to adhere to its own internal operating procedures.”).

10 . See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958); 2 Henry M. Hart Jr. & Albert M. Sacks, The Legal Process 1414 — 15 (tent. ed. 1958) ("In determining the more immediate purpose which ought to be attributed to a statute, and to any subordinate provision of it which may be involved, a court should try to put itself in imagination in the position of the legislature which enacted the measure.... It should assume, unless the contrary unmistakably appears, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably.... The court should then proceed to [ask] ... Why would reasonable men, confronted with the law as it was, have enacted this new law to replace it? ... The most reliable guides to an answer will be found in the instances of unquestioned application of the statute. Even in the case of a new statute there almost invariably are such instances, in which, because of the perfect fit of words and context, the meaning seems unmistakable____ What is crucial here is the realization that law is being made, and that law is not supposed to be irrational.”).