United States v. Graham

57 F. App'x 549

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 24, 2003
• Docket: 01-1954
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Emmett Madison Graham, Jr., appeals from the district court’s order granting the Government’s motion for summary judgment for forfeiture of Graham’s interest in 28.60 and 6.05 acre parcels of property based upon drug-related activity conducted on them. Graham first argues that a prior vacatur of a criminal forfeiture of the 6.05 acre parcel bars the civil forfeiture action. We find no such bar. There was no double jeopardy violation because civil forfeitures, like the one here under 21 U.S.C. § 881(a)(7) (2000), do not constitute punishment for double jeopardy purposes. United States v. Ursery, 518 U.S. 267, 270-71, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996).

Next, Graham argued that the Government did not timely file the civil forfeiture action. The district court did not address the timeliness issue in its order. Under 19 U.S.C. § 1621 (2000), a forfeiture complaint must be filed “within five years after the time when the alleged offense was discovered____” * Graham argues that the main reliance on forfeiting the property is a home invasion effected in January 1993. The Government did not file the civil forfeiture action until September 24, 1999— more than five years after the home invasion. The Government’s forfeiture claim relied upon the sworn declarations of Stephen Netherland, Criminal Specialist, North Carolina Bureau of Investigation.

After a careful review of the record before us, we find that Stephen Nether-land’s declarations do not clearly state all the necessary dates to determine the timeliness of the Government’s filing. Particularly inconclusive is the date on which government agents first learned from Kenneth Spence that his home had been invaded by a group, of which Graham was part, and that Spence found his stolen marijuana on Graham’s property. We note the civil forfeiture record also does not contain any trial testimony from Netherland, nor does it contain the relevant portions of Richard Crowell Arp, Jr.’s testimony regarding his cooperation with Netherland.

For these reasons, we find it necessary to remand the case to the district court for a determination of whether the Government timely filed the civil forfeiture action. We deny Graham’s motion to proceed in forma pauperis as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED.

* Although § 1621 addresses forfeitures effected under the customs laws, 21 U.S.C. § 881(d) (2000) specifically adopts the provisions regarding forfeiture for customs violations. This includes the five-year limitations period. See United States v. James Daniel Good, 510 U.S. 43, 63, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993).