Hispanics in the United States
-- The U.S. Hispanic population ranks as the fifth-largest in the world, behind Mexico, Spain, Colombia and Argentina.
-- There are more than 7.6 million Hispanic households in the United States, averaging 3.6 people per household.
-- In 1995, 74 percent of U.S. Hispanics resided in five states: California, Texas, New York, Florida and Illinois.
-- 77 percent of Hispanics living in the United States were born abroad, and 44 percent have lived in the United States 10 years or less.
-- 58 percent of Hispanics over 18 are employed full time.
-- 6.6 percent of Hispanics over 18 are unemployed.
-- 31 percent of all Hispanic households send money to relatives in their country of origin.
-- The buying power of the U.S. Hispanic market is more than $228 billion, and the three markets with the greatest buying power are Los Angeles, New York and Miami.
-- The average household income for Hispanics increased from $14,712 in 1980 to $29,500 in 1996.
- Sources: U.S. Census Bureau and Rodriguez Communications, a California-based Hispanic marketing company.
Tuesday, May 25, 2004
Friday, May 21, 2004
De Jesus vs. United States of America
JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210
In Pro Per
UNITED STATES DISTRICT COURT OF THE CENTRAL DISTRICT OF CALIFORNIA NINTH CIRCUIT
JUAN DAVID DE JESUS, a United States Citizen
Plaintiff,
vs.
UNITED STATES OF AMERICA
Defendant Case No.: CV 04-1207 NM (FMOx)
PLAINTIFF’S OPPOSSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Dated this 21st day of May, 2004
JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210
I. INTRODUCTION
P. Greg Parham, Special Assistant United States Attorney filed on behalf of the United States (Defendant) a Motion to Dismiss Plaintiff’s Complaint. The Motion is dated April 23, 2004. The Defendant contends that the court lacks subject matter jurisdiction and that the Plaintiff has failed to state a claim upon which relief can be granted.
The Plaintiff, Juan David De Jesus, opposes the Defendant’s Motion to Dismiss based on the contention that the court does possess subject matter jurisdiction and that the Plaintiff has clearly stated a claim upon which relief can be granted. Moreover, the Plaintiff denies being involved in any criminal activity.
Furthermore, the counsel for the Defendant did not follow Local Rule 7-3 which clearly states that, “counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution.” Counsel for the Defendant informed the Plaintiff only of his intentions to move to dismiss but failed to discuss any potential resolution.
In the introduction, the Defendant prefaces its statement by saying that the Plaintiff’s aircraft was seized by the Department of Homeland Security on September 10, 2003 during the course of an illegal alien smuggling investigation concerning the plaintiff. The plaintiff denies any connection to alien smuggling. The United States is well aware of the Plaintiff’s contentions.
Even though the Defendant claims Sovereign Immunity, the Plaintiff will show that this doctrine does not apply in this case. The concept of Equitable Relief does not apply in this circumstance because the Plaintiff has not requested a monetary award for damages. The Plaintiff has been previously denied an Injunction and a Restraining Order where the concept of Equitable Relief would apply.
The Plaintiff’s complaint should not be dismissed in its entirety because there are several issues addressed and not just the issue of the Plaintiff’s aircraft.
This document presented by the Defendant used in Exhibit B is full misstatements, ambiguities and contradictions; and the testimonies of those individuals giving the statements are not supported by a sworn statement at the end of the document.
II. STATEMENT OF FACTS
The Government is being unjustly enriched and is holding specific property of the plaintiff. This is a point that the court must address.
The Government has committed Fraud and Misrepresentation of material facts as well as perjury in its document labeled as Exhibit B.
In the Defendant’s introductory statement in Section II, (Statement of Facts), the Defendant cites McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988) as support for its contention that extrinsic evidence may be considered. This is a misuse of the principle considering that the Supreme Court has held that extrinsic evidence goes to impeach a witness to expose biases, prejudices, or ulterior motives as they may relate to issues or personalities in the case at hand, only then, evidence will be allowed. United States v. Abel, 469 U.S. 45, 54 (1984).
The Plaintiff contends that his aircraft is not subject to forfeiture because the Plaintiff has shown ample evidence pursuant to Section 274 (8 U.S.C. 1324) and Section 983 in both the Personal Interview with the Department of Homeland Security on December 10, 2003 and with the Plaintiff’s Petition for Remission or Mitigation of Forfeiture. The Plaintiff has not, knowingly or in reckless disregard of the law, committed any crimes.
III. ARGUMENT
The Government claims Sovereign Immunity. But the Government cannot claim this right because it is intended to be used when the United States is requested to withdraw money from the Treasury. My suit is not one for money rather one of principle. Sovereign immunity is a legal doctrine which, under some circumstances, protects the federal, state, and tribal governments within the United States from lawsuits which would cause those governments to pay out money, real estate, or goods from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not just a few individuals (such as the people who file lawsuits). If, through lawsuit, a plaintiff can collect money from the government for some wrong the government has done him, the public treasury will be reduced for the benefit of that one person. There will then be less money to provide services to all the other citizens of the government. All the citizens will suffer because of the drain on the public treasury caused by a single citizen. Courts have said that when someone claiming to have been injured by the government or its employees' files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. Many contend that this is not a decision for the courts. The Plaintiff’s case must be distinguished in that the Plaintiff is not seeking an award for monetary damages.
Even though the Plaintiff is not requesting award of monetary damages in the present complaint, the Plaintiff does not waive his right to do so in the future. The “BIVENS ACTIONS” allows for Damages remedies for constitutional violations committed by federal agents and became available in 1971. The Supreme Court had long held that federal courts had the power to grant relief not expressly authorized by statute as well as the power to adjust remedies to grant relief made necessary by the particular circumstances of the case at hand. However, it was not until the Court's decision in Bivens v. 6 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages. In the case of Bivens vs. six employees of the US Department of Justice, the Plaintiff alleged that Federal Agents had arrested him and searched his home without a warrant or probable cause in violation of the 4th amendment's ban against unreasonable searches and seizures. The Court upheld the reasonableness of the complaint in the face of a motion to dismiss for failure to state a cause of action. They rejected the argument that a State Tort action provided an adequate and exclusive judicial remedy.
A Bivens claim can be based on conspiracy of federal agents by showing:
(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and
(2) an actual deprivation of those constitutional rights resulting from the agreement.
It is the Plaintiff’s contention that the above two acts have occurred. Furthermore, 28 USCS § 1346 (2004) provides that:
(b) (1) Subject to the provisions of chapter 171 of this title [28 USCS §§ 2671 et seq.], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Moreover, the Plaintiff contends that the Defendant has committed intrinsic and extrinsic fraud along with other wrongful acts. The Defendant has submitted to the court, marked as Exhibit B, a statement that is misleading, conspiratorial and filled with error and conjecture. In a single word, the statement that is false. The Defendant has signed this document under penalty of perjury with the express intention of misleading the court, which constitutes the commission of intrinsic fraud. The Defendant has fraudulently kept the Plaintiff from accessing information and obtaining evidence that would further the Plaintiff’s cause and seeking justice, thus constituting extrinsic fraud. Given that the Department of Homeland Security has a history of placing false statements within its documents to further its position, an act which I have personal knowledge and which can be substantiated by evidence, this makes the Plaintiff’s plea for a trial all the more urgent. The Department of Homeland Security has a history of violating the constitutional rights of the inhabitants of this land as well as sidestepping the safeguards of the constitution. The Plaintiff further contends that the Defendant has committed Fraud and Abuse of Process as well as intentional and negligent infliction of emotional distress.
One should not blindly follow a system that, instead of awakening a sense of justice and truth, lulls the American people into a sleep which disallows their freedom. The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
Many state supreme courts over the last decade have limited or abolished the defense of sovereign immunity, by finding that the doctrine was court made, and declaring it to be unfair. Most state legislatures in the United Sates have given up or waived some portion of their sovereign immunity. Waiver of some immunity is commonly done for public policy reasons.
Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people (emphasis added). The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State."
Despite its pernicious nature and logically indefensible character, the purpose of my opposition is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect as pertains to the Plaintiff’s particular case. The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent) and Federal sovereign immunity is a defense to liability rather than a right to be free from trial. The Plaintiff has not asked for an award of monetary damages.
Federal Tort Claims Act (1948) which removes the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts. The United States of America provides for Congressional Withdrawal of Immunity. The Constitution delegates to Congress power to legislate to affect the government in some permissible ways. At least in some instances when Congress does so, it may subject the government themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon government powers and which expressly provide for congressional implementing legislation. Thus, ''the Eleventh Amendment and the principle of sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.''
Congress waived sovereign immunity for a wide range of tort claims when it enacted the Federal Tort Claims Act. The FTCA permits a tort suit against the United States 'where injury to person or property is "caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.' Tort Actions Against Government Officials .--In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the State and to obtain damages for the period of withholding. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws. The reach of the rule is evident in Scheuer v. Rhodes, in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a State alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no ''executive immunity'' from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.
28 U.S.C. §[1346[b] - Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The Federal Tort Claims Act [FTCA] allows for the recovery of attorney fees as damages for abuse of process and malicious prosecution if "the law of the place" where the tort occurred so provides, the U.S. Circuit Court for the District of Columbia said on Sept. 2. Tri-State Hospital Supply Corp. v. U.S., No. 02-5045.
The U.S. Department of Justice sued Tri-State, a company that imported surgical instruments from Pakistan, for allegedly falsifying customs forms. After the DOJ dropped its fraud claim, the jury returned a verdict in Tri-State's favor on the remaining negligence claim. Tri-State then sued the DOJ under the FTCA, alleging malicious prosecution and abuse of process and seeking $3.2 million in compensation for the attorney fees it spent defending itself. But ruling that it lacked subject-matter jurisdiction, a D.C. federal court dismissed the case. Reversing, the circuit court noted that the FTCA grants exclusive jurisdiction to the district courts over civil actions against the U.S. seeking money damages for injury or loss of property under circumstances where the country, if it were a private person, would be liable to the claimant "in accordance with the law of the place where the act or omission occurred." It ruled that damages incurred in defending a suit later found to be malicious or abusive may be characterized as damages for "injury of loss of property."
Pursuant to 42 U.S.C. Sec. 1983 (Civil Action for the Deprivation of Rights), Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Generally, the United States can be held liable under the FTCA when liability would attach to a private actor under the law of the place where the tort occurred. Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). However, the United States may be liable " 'for the performance of some activities that private persons do not perform,' . . . when a state or municipal entity would be held liable under the law where the activity occurred." Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (quoting Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995)). In such instances, liability attaches if the United States breaches "a mandatory duty for which a cause of action lies." Id.
Taking all of the allegations of the Plaintiff’s complaint as true, and construing these facts in the light most favorable to the nonmoving party of the Motion to Dismiss (Plaintiff), as the court must when reviewing entry of final judgment on a 12(b)(1) and 12(b)(6) motion to dismiss, see United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n.1 (9th Cir. 1999), in deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 91 L. Ed. 2d 202, 106 S. Ct. 2505 [1986]; Van v. City of New York, 72 F.3d 1040, 1048-49 [2d Cir. 1995], The Plaintiff holds that the Defendant has failed to carry its burden here.
The Defendant claims that the Plaintiff’s exclusive forum for addressing Plaintiff’s claims is the Civil In Rem Forfeiture Action. The Plaintiff disagrees. The cases cited by the Defendant in support of its supposition do not apply to the Plaintiff’s case and the Plaintiff’s case is thus differentiated based on the following federal codes:
Section 274.1 (8 U.S.C. 1324) (h) (2) describes the date of an action to be the date of postmark if filed by mail.
Section 274 (8 U.S.C. 1324) (b) (1) states:
(A) That no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited unless it shall appear that the owner of other person in charge of such conveyance was a consenting party or privy to the illegal act. (The Plaintiff was not a consenting party or privy to an illegal act.)
Section 274.1 (8 U.S.C. 1324) (o) The term “record” means an arrest for a related crime followed by a conviction, except that a single arrest and conviction and the expiration of any sentence imposed as a result of the conviction, all of which occurred more than ten years prior to the date a claimant acquired a property interest in the seized or forfeited conveyance, is not considered a record. Also related 28 CFR Part 9.2 (q). (The Plaintiff does not have a record).
Section 274.5 (8 U.S.C. 1324)(c)(2,3) The owner of a seized conveyance shall be informed of the right to request a personal interview with an immigration officer and to present evidence to establish;
(2) That the conveyance is not subject to forfeiture; or
(3) That the conveyance was used in an act to which the owner was not privy, or did not consent, and the owner took all reasonable steps to prevent the illegal use of the conveyance (The Plaintiff requested and attended a personal interview with the Department of Homeland Security and provided overwhelming evidence of Plaintiff’s claim).
Section 274.6 Proof of property interest (Provided by Plaintiff).
Section 274.8 Notice to owner and lien holder of seizure.
One hundred sixth Congress of the United States of America on January 24, 2000 states:
§ 983 (a) (1)(A)(i) In any nonjudicial civil forfeiture proceeding under a civil forfeiture stature, 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 seizure. (The Defendant denied the Plaintiff due process by exceeding this limit).
§ 983 (a) (1) (F) (i) If the government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time (Again the Defendant denied the Plaintiff due process by not obeying this statute).
§ 983 (a) (3)(B) The Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
§ 983 (f) Release of Seized Property (3)(A) If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized (By this statute the Plaintiff challenges the Defendant’s argument that the Civil In Rem Forfeiture Action is the exclusive forum for addressing the Plaintiff’s complaint).
The Plaintiff’s complaint was initiated before the Defendant’s In Rem Forfeiture Action and thus takes precedence. The Defendant states that “Equity always has been hesitant to act if its remedy would disrupt an ongoing grand jury investigation.” The only way Justice could disrupt is if there is Injustice to be disrupted. The Defendant mentions an ongoing grand jury investigation. The Plaintiff has not knowingly or intentionally been involved in any criminal activity. The Defendant had the obligation of returning the aircraft on two separate occasions, as mentioned above, and failed to do so, violating the Plaintiff’s right under the federal law and the Constitution. The value of the aircraft has diminished enormously due to the lack of the Defendant to follow federal code. The aircraft is not subject to forfeiture because the Plaintiff did not violate 8 U.S.C. §1324(a)(1)(A)(ii) by knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the united States in violation of law.
The Defendant violated federal code by not returning the aircraft to the defendant as prescribed by 18 U.S.C. §983(a) (1) (F) which states, “If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.” In short, the Defendant is set on stealing the Plaintiff’s property.
IV. CONCLUSION
As set forth extensively above, even if the Defendant is successful in retaining the Plaintiff’s property under the argument it has presented, the court must not dismiss the Plaintiff’s complaint in its entirety because there are too many issues that must be addressed. Members from both the House of Congress and the House of Senate are investing the Department of Homeland Security because of the abuses mentioned above. This is a matter to which the American people cannot close their eyes.
V. VERIFICATION
I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Any discrepancies or faults in this document are not intentional and would be the result of lack of knowledge and experience in the subject matter.
Executed on May 21, 2004 by:
Juan David De Jesus
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210
In Pro Per
UNITED STATES DISTRICT COURT OF THE CENTRAL DISTRICT OF CALIFORNIA NINTH CIRCUIT
JUAN DAVID DE JESUS, a United States Citizen
Plaintiff,
vs.
UNITED STATES OF AMERICA
Defendant Case No.: CV 04-1207 NM (FMOx)
PLAINTIFF’S OPPOSSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Dated this 21st day of May, 2004
JUAN DAVID DE JESUS
411 NORTH PALM DRIVE #14
BEVERLY HILLS, CA 90210
I. INTRODUCTION
P. Greg Parham, Special Assistant United States Attorney filed on behalf of the United States (Defendant) a Motion to Dismiss Plaintiff’s Complaint. The Motion is dated April 23, 2004. The Defendant contends that the court lacks subject matter jurisdiction and that the Plaintiff has failed to state a claim upon which relief can be granted.
The Plaintiff, Juan David De Jesus, opposes the Defendant’s Motion to Dismiss based on the contention that the court does possess subject matter jurisdiction and that the Plaintiff has clearly stated a claim upon which relief can be granted. Moreover, the Plaintiff denies being involved in any criminal activity.
Furthermore, the counsel for the Defendant did not follow Local Rule 7-3 which clearly states that, “counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution.” Counsel for the Defendant informed the Plaintiff only of his intentions to move to dismiss but failed to discuss any potential resolution.
In the introduction, the Defendant prefaces its statement by saying that the Plaintiff’s aircraft was seized by the Department of Homeland Security on September 10, 2003 during the course of an illegal alien smuggling investigation concerning the plaintiff. The plaintiff denies any connection to alien smuggling. The United States is well aware of the Plaintiff’s contentions.
Even though the Defendant claims Sovereign Immunity, the Plaintiff will show that this doctrine does not apply in this case. The concept of Equitable Relief does not apply in this circumstance because the Plaintiff has not requested a monetary award for damages. The Plaintiff has been previously denied an Injunction and a Restraining Order where the concept of Equitable Relief would apply.
The Plaintiff’s complaint should not be dismissed in its entirety because there are several issues addressed and not just the issue of the Plaintiff’s aircraft.
This document presented by the Defendant used in Exhibit B is full misstatements, ambiguities and contradictions; and the testimonies of those individuals giving the statements are not supported by a sworn statement at the end of the document.
II. STATEMENT OF FACTS
The Government is being unjustly enriched and is holding specific property of the plaintiff. This is a point that the court must address.
The Government has committed Fraud and Misrepresentation of material facts as well as perjury in its document labeled as Exhibit B.
In the Defendant’s introductory statement in Section II, (Statement of Facts), the Defendant cites McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988) as support for its contention that extrinsic evidence may be considered. This is a misuse of the principle considering that the Supreme Court has held that extrinsic evidence goes to impeach a witness to expose biases, prejudices, or ulterior motives as they may relate to issues or personalities in the case at hand, only then, evidence will be allowed. United States v. Abel, 469 U.S. 45, 54 (1984).
The Plaintiff contends that his aircraft is not subject to forfeiture because the Plaintiff has shown ample evidence pursuant to Section 274 (8 U.S.C. 1324) and Section 983 in both the Personal Interview with the Department of Homeland Security on December 10, 2003 and with the Plaintiff’s Petition for Remission or Mitigation of Forfeiture. The Plaintiff has not, knowingly or in reckless disregard of the law, committed any crimes.
III. ARGUMENT
The Government claims Sovereign Immunity. But the Government cannot claim this right because it is intended to be used when the United States is requested to withdraw money from the Treasury. My suit is not one for money rather one of principle. Sovereign immunity is a legal doctrine which, under some circumstances, protects the federal, state, and tribal governments within the United States from lawsuits which would cause those governments to pay out money, real estate, or goods from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not just a few individuals (such as the people who file lawsuits). If, through lawsuit, a plaintiff can collect money from the government for some wrong the government has done him, the public treasury will be reduced for the benefit of that one person. There will then be less money to provide services to all the other citizens of the government. All the citizens will suffer because of the drain on the public treasury caused by a single citizen. Courts have said that when someone claiming to have been injured by the government or its employees' files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. Many contend that this is not a decision for the courts. The Plaintiff’s case must be distinguished in that the Plaintiff is not seeking an award for monetary damages.
Even though the Plaintiff is not requesting award of monetary damages in the present complaint, the Plaintiff does not waive his right to do so in the future. The “BIVENS ACTIONS” allows for Damages remedies for constitutional violations committed by federal agents and became available in 1971. The Supreme Court had long held that federal courts had the power to grant relief not expressly authorized by statute as well as the power to adjust remedies to grant relief made necessary by the particular circumstances of the case at hand. However, it was not until the Court's decision in Bivens v. 6 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages. In the case of Bivens vs. six employees of the US Department of Justice, the Plaintiff alleged that Federal Agents had arrested him and searched his home without a warrant or probable cause in violation of the 4th amendment's ban against unreasonable searches and seizures. The Court upheld the reasonableness of the complaint in the face of a motion to dismiss for failure to state a cause of action. They rejected the argument that a State Tort action provided an adequate and exclusive judicial remedy.
A Bivens claim can be based on conspiracy of federal agents by showing:
(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and
(2) an actual deprivation of those constitutional rights resulting from the agreement.
It is the Plaintiff’s contention that the above two acts have occurred. Furthermore, 28 USCS § 1346 (2004) provides that:
(b) (1) Subject to the provisions of chapter 171 of this title [28 USCS §§ 2671 et seq.], the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Moreover, the Plaintiff contends that the Defendant has committed intrinsic and extrinsic fraud along with other wrongful acts. The Defendant has submitted to the court, marked as Exhibit B, a statement that is misleading, conspiratorial and filled with error and conjecture. In a single word, the statement that is false. The Defendant has signed this document under penalty of perjury with the express intention of misleading the court, which constitutes the commission of intrinsic fraud. The Defendant has fraudulently kept the Plaintiff from accessing information and obtaining evidence that would further the Plaintiff’s cause and seeking justice, thus constituting extrinsic fraud. Given that the Department of Homeland Security has a history of placing false statements within its documents to further its position, an act which I have personal knowledge and which can be substantiated by evidence, this makes the Plaintiff’s plea for a trial all the more urgent. The Department of Homeland Security has a history of violating the constitutional rights of the inhabitants of this land as well as sidestepping the safeguards of the constitution. The Plaintiff further contends that the Defendant has committed Fraud and Abuse of Process as well as intentional and negligent infliction of emotional distress.
One should not blindly follow a system that, instead of awakening a sense of justice and truth, lulls the American people into a sleep which disallows their freedom. The Court must not forget that personal liberty is the indispensable ingredient of the American experience. Otherwise, in its zeal to constrain overarching federal power, the Court might frustrate the responsibility of the national government under the 14th Amendment to secure individual rights.
Many state supreme courts over the last decade have limited or abolished the defense of sovereign immunity, by finding that the doctrine was court made, and declaring it to be unfair. Most state legislatures in the United Sates have given up or waived some portion of their sovereign immunity. Waiver of some immunity is commonly done for public policy reasons.
Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism. The 10th Amendment restricts national powers by limiting them to functions enumerated in the Constitution. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people (emphasis added). The 14th Amendment increases those powers by authorizing congressional intervention when states violate individual rights. And the 11th Amendment states in relevant part that "The Judicial power of the United States shall not . . . extend to any suit . . . against [a] State by Citizens of another State."
Despite its pernicious nature and logically indefensible character, the purpose of my opposition is not to argue for abolition of the doctrine but, rather, to discuss its operation, scope and effect as pertains to the Plaintiff’s particular case. The interest served by federal sovereign immunity (the United States' freedom from paying damages without Congressional consent) and Federal sovereign immunity is a defense to liability rather than a right to be free from trial. The Plaintiff has not asked for an award of monetary damages.
Federal Tort Claims Act (1948) which removes the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts. The United States of America provides for Congressional Withdrawal of Immunity. The Constitution delegates to Congress power to legislate to affect the government in some permissible ways. At least in some instances when Congress does so, it may subject the government themselves to suit at the initiation of individuals to implement the legislation. The clearest example arises from the Reconstruction Amendments, which are direct restrictions upon government powers and which expressly provide for congressional implementing legislation. Thus, ''the Eleventh Amendment and the principle of sovereignty which it embodies . . . are necessarily limited, by the enforcement provisions of Sec. 5 of the Fourteenth Amendment.''
Congress waived sovereign immunity for a wide range of tort claims when it enacted the Federal Tort Claims Act. The FTCA permits a tort suit against the United States 'where injury to person or property is "caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.' Tort Actions Against Government Officials .--In Tindal v. Wesley, 130 the Court adopted the rule of United States v. Lee, 131 a tort suit against federal officials, to permit a tort action against state officials to recover real property held by them and claimed by the State and to obtain damages for the period of withholding. The immunity of a State from suit has long been held not to extend to actions against state officials for damages arising out of willful and negligent disregard of state laws. The reach of the rule is evident in Scheuer v. Rhodes, in which the Court held that plaintiffs were not barred by the Eleventh Amendment or other immunity doctrines from suing the governor and other officials of a State alleging that they deprived plaintiffs of federal rights under color of state law and seeking damages, when it was clear that plaintiffs were seeking to impose individual and personal liability on the officials. There was no ''executive immunity'' from suit, the Court held; rather, the immunity of state officials is qualified and varies according to the scope of discretion and responsibilities of the particular office and the circumstances existing at the time the challenged action was taken.
28 U.S.C. §[1346[b] - Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The Federal Tort Claims Act [FTCA] allows for the recovery of attorney fees as damages for abuse of process and malicious prosecution if "the law of the place" where the tort occurred so provides, the U.S. Circuit Court for the District of Columbia said on Sept. 2. Tri-State Hospital Supply Corp. v. U.S., No. 02-5045.
The U.S. Department of Justice sued Tri-State, a company that imported surgical instruments from Pakistan, for allegedly falsifying customs forms. After the DOJ dropped its fraud claim, the jury returned a verdict in Tri-State's favor on the remaining negligence claim. Tri-State then sued the DOJ under the FTCA, alleging malicious prosecution and abuse of process and seeking $3.2 million in compensation for the attorney fees it spent defending itself. But ruling that it lacked subject-matter jurisdiction, a D.C. federal court dismissed the case. Reversing, the circuit court noted that the FTCA grants exclusive jurisdiction to the district courts over civil actions against the U.S. seeking money damages for injury or loss of property under circumstances where the country, if it were a private person, would be liable to the claimant "in accordance with the law of the place where the act or omission occurred." It ruled that damages incurred in defending a suit later found to be malicious or abusive may be characterized as damages for "injury of loss of property."
Pursuant to 42 U.S.C. Sec. 1983 (Civil Action for the Deprivation of Rights), Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Generally, the United States can be held liable under the FTCA when liability would attach to a private actor under the law of the place where the tort occurred. Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). However, the United States may be liable " 'for the performance of some activities that private persons do not perform,' . . . when a state or municipal entity would be held liable under the law where the activity occurred." Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc., 107 F.3d 1368, 1371 (9th Cir. 1997) (quoting Hines v. United States, 60 F.3d 1442, 1448 (9th Cir. 1995)). In such instances, liability attaches if the United States breaches "a mandatory duty for which a cause of action lies." Id.
Taking all of the allegations of the Plaintiff’s complaint as true, and construing these facts in the light most favorable to the nonmoving party of the Motion to Dismiss (Plaintiff), as the court must when reviewing entry of final judgment on a 12(b)(1) and 12(b)(6) motion to dismiss, see United States v. One 1997 Mercedes E420, 175 F.3d 1129, 1131 n.1 (9th Cir. 1999), in deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 91 L. Ed. 2d 202, 106 S. Ct. 2505 [1986]; Van v. City of New York, 72 F.3d 1040, 1048-49 [2d Cir. 1995], The Plaintiff holds that the Defendant has failed to carry its burden here.
The Defendant claims that the Plaintiff’s exclusive forum for addressing Plaintiff’s claims is the Civil In Rem Forfeiture Action. The Plaintiff disagrees. The cases cited by the Defendant in support of its supposition do not apply to the Plaintiff’s case and the Plaintiff’s case is thus differentiated based on the following federal codes:
Section 274.1 (8 U.S.C. 1324) (h) (2) describes the date of an action to be the date of postmark if filed by mail.
Section 274 (8 U.S.C. 1324) (b) (1) states:
(A) That no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited unless it shall appear that the owner of other person in charge of such conveyance was a consenting party or privy to the illegal act. (The Plaintiff was not a consenting party or privy to an illegal act.)
Section 274.1 (8 U.S.C. 1324) (o) The term “record” means an arrest for a related crime followed by a conviction, except that a single arrest and conviction and the expiration of any sentence imposed as a result of the conviction, all of which occurred more than ten years prior to the date a claimant acquired a property interest in the seized or forfeited conveyance, is not considered a record. Also related 28 CFR Part 9.2 (q). (The Plaintiff does not have a record).
Section 274.5 (8 U.S.C. 1324)(c)(2,3) The owner of a seized conveyance shall be informed of the right to request a personal interview with an immigration officer and to present evidence to establish;
(2) That the conveyance is not subject to forfeiture; or
(3) That the conveyance was used in an act to which the owner was not privy, or did not consent, and the owner took all reasonable steps to prevent the illegal use of the conveyance (The Plaintiff requested and attended a personal interview with the Department of Homeland Security and provided overwhelming evidence of Plaintiff’s claim).
Section 274.6 Proof of property interest (Provided by Plaintiff).
Section 274.8 Notice to owner and lien holder of seizure.
One hundred sixth Congress of the United States of America on January 24, 2000 states:
§ 983 (a) (1)(A)(i) In any nonjudicial civil forfeiture proceeding under a civil forfeiture stature, 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 seizure. (The Defendant denied the Plaintiff due process by exceeding this limit).
§ 983 (a) (1) (F) (i) If the government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time (Again the Defendant denied the Plaintiff due process by not obeying this statute).
§ 983 (a) (3)(B) The Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
§ 983 (f) Release of Seized Property (3)(A) If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized (By this statute the Plaintiff challenges the Defendant’s argument that the Civil In Rem Forfeiture Action is the exclusive forum for addressing the Plaintiff’s complaint).
The Plaintiff’s complaint was initiated before the Defendant’s In Rem Forfeiture Action and thus takes precedence. The Defendant states that “Equity always has been hesitant to act if its remedy would disrupt an ongoing grand jury investigation.” The only way Justice could disrupt is if there is Injustice to be disrupted. The Defendant mentions an ongoing grand jury investigation. The Plaintiff has not knowingly or intentionally been involved in any criminal activity. The Defendant had the obligation of returning the aircraft on two separate occasions, as mentioned above, and failed to do so, violating the Plaintiff’s right under the federal law and the Constitution. The value of the aircraft has diminished enormously due to the lack of the Defendant to follow federal code. The aircraft is not subject to forfeiture because the Plaintiff did not violate 8 U.S.C. §1324(a)(1)(A)(ii) by knowingly or in reckless disregard of the fact that an alien has come to, entered, or remains in the united States in violation of law.
The Defendant violated federal code by not returning the aircraft to the defendant as prescribed by 18 U.S.C. §983(a) (1) (F) which states, “If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.” In short, the Defendant is set on stealing the Plaintiff’s property.
IV. CONCLUSION
As set forth extensively above, even if the Defendant is successful in retaining the Plaintiff’s property under the argument it has presented, the court must not dismiss the Plaintiff’s complaint in its entirety because there are too many issues that must be addressed. Members from both the House of Congress and the House of Senate are investing the Department of Homeland Security because of the abuses mentioned above. This is a matter to which the American people cannot close their eyes.
V. VERIFICATION
I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Any discrepancies or faults in this document are not intentional and would be the result of lack of knowledge and experience in the subject matter.
Executed on May 21, 2004 by:
Juan David De Jesus
Wednesday, May 19, 2004
Rule C. Actions in Rem: Special Provisions.
Rule C. Actions in Rem: Special Provisions.: "FEDERAL RULES FOR CIVIL PROCEDURE"
Federal Forfeiture Manual - Table of Contents
Federal Forfeiture Manual - Table of Contents: "The Center for Forfeiture Law
Federal Forfeiture Practice Manual "
Federal Forfeiture Practice Manual "
11.10 CIVIL IN REM FORFEITURE ACTIONS (N.J.S.A. 2C:64-1)
11.10 CIVIL IN REM FORFEITURE ACTIONS (N.J.S.A. 2C:64-1): "11.10 CIVIL IN REM FORFEITURE ACTIONS (N.J.S.A. 2C:64-1) (11/00) "
Tuesday, May 18, 2004
Notes on Title 18 Chapter 46 Section 983
TITLE 18 > PART I > CHAPTER 46 > Sec. 983.
Notes on Sec. 983.
SOURCE
Added and amended Pub. L. 106-185, Sec. 2(a), 9, Apr. 25, 2000, 114 Stat. 202, 216
Pub. L. 106-561, Sec. 3(a), Dec. 21, 2000, 114 Stat. 2791
Pub. L. 107-56, title III, Sec. 316(d), Oct. 26, 2001, 115 Stat. 310.
REFERENCES IN TEXT
The Supplemental Rules for Certain Admiralty and Maritime Claims, referred to in subsecs. (a)(3)(A), (4)(A) and (f)(7)(A)(ii), are set out as part of the Federal Rules of Civil Procedure in the Appendix to Title 28, Judiciary and Judicial Procedure. The Federal Rules of Civil Procedure, referred to in subsec. (h)(2), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Tariff Act of 1930, referred to in subsec. (i)(2)(A), is act June 17, 1930, ch. 497, 46 Stat. 590, as amended, which is classified generally to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs Duties. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables. The Internal Revenue Code of 1986, referred to in subsec. (i)(2)(B), is classified generally to Title 26, Internal Revenue Code. The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (i)(2)(C), is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended, which is classified generally to chapter 9 (Sec. 301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section 301 of Title 21 and Tables.
The Trading with the Enemy Act, referred to in subsec. (i)(2)(D), is act Oct. 6, 1917, ch. 106, 40 Stat. 411, as amended, which is classified to sections 1 to 6, 7 to 39 and 41 to 44 of Title 50, Appendix, War and National Defense. For complete classification of this Act to the Code, see Tables. The International Emergency Economic Powers Act, referred to in (i)(2)(D), is title II of Pub. L. 95-223, Dec. 28, 1977, 91 Stat. 1626, as amended, which is classified generally to chapter 35 (Sec. 1701 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1701 of Title 50 and Tables.
The Federal Rules of Evidence, referred to in subsec. (j)(4), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure
AMENDMENTS
2001 - Subsec. (i)(2)(D). Pub. L. 107-56 inserted ''or the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq.)'' before semicolon. 2000 - Subsec. (a)(2)(C)(ii). Pub. L. 106-561 struck out ''(and provide customary documentary evidence of such interest if available) and state that the claim is not frivolous'' after ''such property''. Subsec. (j). Pub. L. 106-185, Sec. 9, added subsec. (j).
TERMINATION DATE OF 2001 AMENDMENT
Amendments by title III of Pub. L. 107-56 to terminate effective on and after the first day of fiscal year 2005 if Congress enacts a joint resolution that such amendments no longer have the force of law, see section 303 of Pub. L. 107-56, set out as a Four-Year Congressional Review; Expedited Consideration note under section 5311 of Title 31, Money and Finance
EFFECTIVE DATE OF 2000 AMENDMENT
Pub. L. 106-561, Sec. 3(b), Dec. 21, 2000, 114 Stat. 2791, provided that: ''The amendment made by this section (amending this section) shall take effect as if included in the amendment made by section 2(a) of Public Law 106-185.'
EFFECTIVE DATE
Section applicable to any forfeiture proceeding commenced on or after the date that is 120 days after Apr. 25, 2000, see section 21 of Pub. L. 106-185, set out as an Effective Date of 2000 Amendment note under section 1324 of Title 8, Aliens and Nationality
ANTI-TERRORIST FORFEITURE PROTECTION
Pub. L. 107-56, title III, Sec. 316(a)-(c), Oct. 26, 2001, 115 Stat. 309, provided that: ''(a) Right to Contest. - An owner of property that is confiscated under any provision of law relating to the confiscation of assets of suspected international terrorists, may contest that confiscation by filing a claim in the manner set forth in the Federal Rules of Civil Procedure (Supplemental Rules for Certain Admiralty and Maritime Claims) (28 App. U.S.C.), and asserting as an affirmative defense that - ''(1) the property is not subject to confiscation under such provision of law; or ''(2) the innocent owner provisions of section 983(d) of title 18, United States Code, apply to the case. ''(b) Evidence. - In considering a claim filed under this section, a court may admit evidence that is otherwise inadmissible under the Federal Rules of Evidence (28 App. U.S.C.), if the court determines that the evidence is reliable, and that compliance with the Federal Rules of Evidence may jeopardize the national security interests of the United States.
''(c) Clarifications. - ''(1) Protection of rights. - The exclusion of certain provisions of Federal law from the definition of the term 'civil forfeiture statute' in section 983(i) of title 18, United States Code, shall not be construed to deny an owner of property the right to contest the confiscation of assets of suspected international terrorists under - ''(A) subsection (a) of this section; ''(B) the Constitution; or ''(C) subchapter II of chapter 5 of title 5, United States Code (commonly known as the 'Administrative Procedure Act'). ''(2) Savings clause. - Nothing in this section shall limit or otherwise affect any other remedies that may be available to an owner of property under section 983 of title 18, United States Code, or any other provision of law.'
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 981 of this title; title 28 section 2467
Notes on Sec. 983.
SOURCE
Added and amended Pub. L. 106-185, Sec. 2(a), 9, Apr. 25, 2000, 114 Stat. 202, 216
Pub. L. 106-561, Sec. 3(a), Dec. 21, 2000, 114 Stat. 2791
Pub. L. 107-56, title III, Sec. 316(d), Oct. 26, 2001, 115 Stat. 310.
REFERENCES IN TEXT
The Supplemental Rules for Certain Admiralty and Maritime Claims, referred to in subsecs. (a)(3)(A), (4)(A) and (f)(7)(A)(ii), are set out as part of the Federal Rules of Civil Procedure in the Appendix to Title 28, Judiciary and Judicial Procedure. The Federal Rules of Civil Procedure, referred to in subsec. (h)(2), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Tariff Act of 1930, referred to in subsec. (i)(2)(A), is act June 17, 1930, ch. 497, 46 Stat. 590, as amended, which is classified generally to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs Duties. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables. The Internal Revenue Code of 1986, referred to in subsec. (i)(2)(B), is classified generally to Title 26, Internal Revenue Code. The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (i)(2)(C), is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended, which is classified generally to chapter 9 (Sec. 301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section 301 of Title 21 and Tables.
The Trading with the Enemy Act, referred to in subsec. (i)(2)(D), is act Oct. 6, 1917, ch. 106, 40 Stat. 411, as amended, which is classified to sections 1 to 6, 7 to 39 and 41 to 44 of Title 50, Appendix, War and National Defense. For complete classification of this Act to the Code, see Tables. The International Emergency Economic Powers Act, referred to in (i)(2)(D), is title II of Pub. L. 95-223, Dec. 28, 1977, 91 Stat. 1626, as amended, which is classified generally to chapter 35 (Sec. 1701 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1701 of Title 50 and Tables.
The Federal Rules of Evidence, referred to in subsec. (j)(4), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure
AMENDMENTS
2001 - Subsec. (i)(2)(D). Pub. L. 107-56 inserted ''or the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq.)'' before semicolon. 2000 - Subsec. (a)(2)(C)(ii). Pub. L. 106-561 struck out ''(and provide customary documentary evidence of such interest if available) and state that the claim is not frivolous'' after ''such property''. Subsec. (j). Pub. L. 106-185, Sec. 9, added subsec. (j).
TERMINATION DATE OF 2001 AMENDMENT
Amendments by title III of Pub. L. 107-56 to terminate effective on and after the first day of fiscal year 2005 if Congress enacts a joint resolution that such amendments no longer have the force of law, see section 303 of Pub. L. 107-56, set out as a Four-Year Congressional Review; Expedited Consideration note under section 5311 of Title 31, Money and Finance
EFFECTIVE DATE OF 2000 AMENDMENT
Pub. L. 106-561, Sec. 3(b), Dec. 21, 2000, 114 Stat. 2791, provided that: ''The amendment made by this section (amending this section) shall take effect as if included in the amendment made by section 2(a) of Public Law 106-185.'
EFFECTIVE DATE
Section applicable to any forfeiture proceeding commenced on or after the date that is 120 days after Apr. 25, 2000, see section 21 of Pub. L. 106-185, set out as an Effective Date of 2000 Amendment note under section 1324 of Title 8, Aliens and Nationality
ANTI-TERRORIST FORFEITURE PROTECTION
Pub. L. 107-56, title III, Sec. 316(a)-(c), Oct. 26, 2001, 115 Stat. 309, provided that: ''(a) Right to Contest. - An owner of property that is confiscated under any provision of law relating to the confiscation of assets of suspected international terrorists, may contest that confiscation by filing a claim in the manner set forth in the Federal Rules of Civil Procedure (Supplemental Rules for Certain Admiralty and Maritime Claims) (28 App. U.S.C.), and asserting as an affirmative defense that - ''(1) the property is not subject to confiscation under such provision of law; or ''(2) the innocent owner provisions of section 983(d) of title 18, United States Code, apply to the case. ''(b) Evidence. - In considering a claim filed under this section, a court may admit evidence that is otherwise inadmissible under the Federal Rules of Evidence (28 App. U.S.C.), if the court determines that the evidence is reliable, and that compliance with the Federal Rules of Evidence may jeopardize the national security interests of the United States.
''(c) Clarifications. - ''(1) Protection of rights. - The exclusion of certain provisions of Federal law from the definition of the term 'civil forfeiture statute' in section 983(i) of title 18, United States Code, shall not be construed to deny an owner of property the right to contest the confiscation of assets of suspected international terrorists under - ''(A) subsection (a) of this section; ''(B) the Constitution; or ''(C) subchapter II of chapter 5 of title 5, United States Code (commonly known as the 'Administrative Procedure Act'). ''(2) Savings clause. - Nothing in this section shall limit or otherwise affect any other remedies that may be available to an owner of property under section 983 of title 18, United States Code, or any other provision of law.'
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 981 of this title; title 28 section 2467
Title 46 Section 983
TITLE 18 > PART I > CHAPTER 46 > Sec. 983. Prev | Next
Sec. 983. - General rules for civil forfeiture proceedings
(a) Notice; Claim; Complaint. -
(1)
(A)
(i)
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.
(ii)
No notice is required if, before the 60-day period expires, the Government files a civil judicial forfeiture action against the property and provides notice of that action as required by law.
(iii)
If, before the 60-day period expires, the Government does not file a civil judicial forfeiture action, but does obtain a criminal indictment containing an allegation that the property is subject to forfeiture, the Government shall either -
(I)
send notice within the 60 days and continue the nonjudicial civil forfeiture proceeding under this section; or
(II)
terminate the nonjudicial civil forfeiture proceeding, and take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute.
(iv)
In a case in which the property is seized by a State or local law enforcement agency and turned over to a Federal law enforcement agency for the purpose of forfeiture under Federal law, notice shall be sent not more than 90 days after the date of seizure by the State or local law enforcement agency.
(v)
If the identity or interest of a party is not determined until after the seizure or turnover but is determined before a declaration of forfeiture is entered, notice shall be sent to such interested party not later than 60 days after the determination by the Government of the identity of the party or the party's interest.
(B)
A supervisory official in the headquarters office of the seizing agency may extend the period for sending notice under subparagraph (A) for a period not to exceed 30 days (which period may not be further extended except by a court), if the official determines that the conditions in subparagraph (D) are present.
(C)
Upon motion by the Government, a court may extend the period for sending notice under subparagraph (A) for a period not to exceed 60 days, which period may be further extended by the court for 60-day periods, as necessary, if the court determines, based on a written certification of a supervisory official in the headquarters office of the seizing agency, that the conditions in subparagraph (D) are present.
(D)
The period for sending notice under this paragraph may be extended only if there is reason to believe that notice may have an adverse result, including -
(i)
endangering the life or physical safety of an individual;
(ii)
flight from prosecution;
(iii)
destruction of or tampering with evidence;
(iv)
intimidation of potential witnesses; or
(v)
otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(E)
Each of the Federal seizing agencies conducting nonjudicial forfeitures under this section shall report periodically to the Committees on the Judiciary of the House of Representatives and the Senate the number of occasions when an extension of time is granted under subparagraph (B).
(F)
If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.
(2)
(A)
Any person claiming property seized in a nonjudicial civil forfeiture proceeding under a civil forfeiture statute may file a claim with the appropriate official after the seizure.
(B)
A claim under subparagraph (A) may be filed not later than the deadline set forth in a personal notice letter (which deadline may be not earlier than 35 days after the date the letter is mailed), except that if that letter is not received, then a claim may be filed not later than 30 days after the date of final publication of notice of seizure.
(C)
A claim shall -
(i)
identify the specific property being claimed;
(ii)
state the claimant's interest in such property; and
(iii)
be made under oath, subject to penalty of perjury.
(D)
A claim need not be made in any particular form. Each Federal agency conducting nonjudicial forfeitures under this section shall make claim forms generally available on request, which forms shall be written in easily understandable language.
(E)
Any person may make a claim under subparagraph (A) without posting bond with respect to the property which is the subject of the claim.
(3)
(A)
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.
(B)
If the Government does not -
(i)
file a complaint for forfeiture or return the property, in accordance with subparagraph (A); or
(ii)
before the time for filing a complaint has expired -
(I)
obtain a criminal indictment containing an allegation that the property is subject to forfeiture; and
(II)
take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute, the Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
(C)
In lieu of, or in addition to, filing a civil forfeiture complaint, the Government may include a forfeiture allegation in a criminal indictment. If criminal forfeiture is the only forfeiture proceeding commenced by the Government, the Government's right to continued possession of the property shall be governed by the applicable criminal forfeiture statute.
(D)
No complaint may be dismissed on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property.
(4)
(A)
In any case in which the Government files in the appropriate United States district court a complaint for forfeiture of property, any person claiming an interest in the seized property may file a claim asserting such person's interest in the property in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims, except that such claim may be filed not later than 30 days after the date of service of the Government's complaint or, as applicable, not later than 30 days after the date of final publication of notice of the filing of the complaint.
(B)
A person asserting an interest in seized property, in accordance with subparagraph (A), shall file an answer to the Government's complaint for forfeiture not later than 20 days after the date of the filing of the claim.
(b) Representation. -
(1)
(A)
If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the person is represented by counsel appointed under section 3006A of this title in connection with a related criminal case, the court may authorize counsel to represent that person with respect to the claim.
(B)
In determining whether to authorize counsel to represent a person under subparagraph (A), the court shall take into account such factors as -
(i)
the person's standing to contest the forfeiture; and
(ii)
whether the claim appears to be made in good faith.
(2)
(A)
If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the property subject to forfeiture is real property that is being used by the person as a primary residence, the court, at the request of the person, shall insure that the person is represented by an attorney for the Legal Services Corporation with respect to the claim.
(B)
(i)
At appropriate times during a representation under subparagraph (A), the Legal Services Corporation shall submit a statement of reasonable attorney fees and costs to the court.
(ii)
The court shall enter a judgment in favor of the Legal Services Corporation for reasonable attorney fees and costs submitted pursuant to clause (i) and treat such judgment as payable under section 2465 of title 28, United States Code, regardless of the outcome of the case.
(3)
The court shall set the compensation for representation under this subsection, which shall be equivalent to that provided for court-appointed representation under section 3006A of this title.
(c) Burden of Proof. -
In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property -
(1)
the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;
(2)
the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and
(3)
if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.
(d) Innocent Owner Defense. -
(1)
An innocent owner's interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.
(2)
(A)
With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term ''innocent owner'' means an owner who -
(i)
did not know of the conduct giving rise to forfeiture; or
(ii)
upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.
(B)
(i)
For the purposes of this paragraph, ways in which a person may show that such person did all that reasonably could be expected may include demonstrating that such person, to the extent permitted by law -
(I)
gave timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and
(II)
in a timely fashion revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.
(ii)
A person is not required by this subparagraph to take steps that the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical danger.
(3)
(A)
With respect to a property interest acquired after the conduct giving rise to the forfeiture has taken place, the term ''innocent owner'' means a person who, at the time that person acquired the interest in the property -
(i)
was a bona fide purchaser or seller for value (including a purchaser or seller of goods or services for value); and
(ii)
did not know and was reasonably without cause to believe that the property was subject to forfeiture.
(B)
An otherwise valid claim under subparagraph (A) shall not be denied on the ground that the claimant gave nothing of value in exchange for the property if -
(i)
the property is the primary residence of the claimant;
(ii)
depriving the claimant of the property would deprive the claimant of the means to maintain reasonable shelter in the community for the claimant and all dependents residing with the claimant;
(iii)
the property is not, and is not traceable to, the proceeds of any criminal offense; and
(iv)
the claimant acquired his or her interest in the property through marriage, divorce, or legal separation, or the claimant was the spouse or legal dependent of a person whose death resulted in the transfer of the property to the claimant through inheritance or probate,
except that the court shall limit the value of any real property interest for which innocent ownership is recognized under this subparagraph to the value necessary to maintain reasonable shelter in the community for such claimant and all dependents residing with the claimant.
(4)
Notwithstanding any provision of this subsection, no person may assert an ownership interest under this subsection in contraband or other property that it is illegal to possess.
(5)
If the court determines, in accordance with this section, that an innocent owner has a partial interest in property otherwise subject to forfeiture, or a joint tenancy or tenancy by the entirety in such property, the court may enter an appropriate order -
(A)
severing the property;
(B)
transferring the property to the Government with a provision that the Government compensate the innocent owner to the extent of his or her ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets; or
(C)
permitting the innocent owner to retain the property subject to a lien in favor of the Government to the extent of the forfeitable interest in the property.
(6)
In this subsection, the term ''owner'' -
(A)
means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest; and
(B)
does not include -
(i)
a person with only a general unsecured interest in, or claim against, the property or estate of another;
(ii)
a bailee unless the bailor is identified and the bailee shows a colorable legitimate interest in the property seized; or
(iii)
a nominee who exercises no dominion or control over the property.
(e) Motion To Set Aside Forfeiture. -
(1)
Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person's interest in the property, which motion shall be granted if -
(A)
the Government knew, or reasonably should have known, of the moving party's interest and failed to take reasonable steps to provide such party with notice; and
(B)
the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.
(2)
(A)
Notwithstanding the expiration of any applicable statute of limitations, if the court grants a motion under paragraph (1), the court shall set aside the declaration of forfeiture as to the interest of the moving party without prejudice to the right of the Government to commence a subsequent forfeiture proceeding as to the interest of the moving party.
(B)
Any proceeding described in subparagraph (A) shall be commenced -
(i)
if nonjudicial, within 60 days of the entry of the order granting the motion; or
(ii)
if judicial, within 6 months of the entry of the order granting the motion.
(3)
A motion under paragraph (1) may be filed not later than 5 years after the date of final publication of notice of seizure of the property.
(4)
If, at the time a motion made under paragraph (1) is granted, the forfeited property has been disposed of by the Government in accordance with law, the Government may institute proceedings against a substitute sum of money equal to the value of the moving party's interest in the property at the time the property was disposed of.
(5)
A motion filed under this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.
(f) Release Of Seized Property. -
(1)
A claimant under subsection (a) is entitled to immediate release of seized property if -
(A)
the claimant has a possessory interest in the property;
(B)
the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;
(C)
the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;
(D)
the claimant's likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding; and
(E)
none of the conditions set forth in paragraph (8) applies.
(2)
A claimant seeking release of property under this subsection must request possession of the property from the appropriate official, and the request must set forth the basis on which the requirements of paragraph (1) are met.
(3)
(A)
If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized.
(B)
The petition described in subparagraph (A) shall set forth -
(i)
the basis on which the requirements of paragraph (1) are met; and
(ii)
the steps the claimant has taken to secure release of the property from the appropriate official.
(4)
If the Government establishes that the claimant's claim is frivolous, the court shall deny the petition. In responding to a petition under this subsection on other grounds, the Government may in appropriate cases submit evidence ex parte in order to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending criminal trial.
(5)
The court shall render a decision on a petition filed under paragraph (3) not later than 30 days after the date of the filing, unless such 30-day limitation is extended by consent of the parties or by the court for good cause shown.
(6)
If -
(A)
a petition is filed under paragraph (3); and
(B)
the claimant demonstrates that the requirements of paragraph (1) have been met,
the district court shall order that the property be returned to the claimant, pending completion of proceedings by the Government to obtain forfeiture of the property.
(7)
If the court grants a petition under paragraph (3) -
(A)
the court may enter any order necessary to ensure that the value of the property is maintained while the forfeiture action is pending, including -
(i)
permitting the inspection, photographing, and inventory of the property;
(ii)
fixing a bond in accordance with rule E(5) of the Supplemental Rules for Certain Admiralty and Maritime Claims; and
(iii)
requiring the claimant to obtain or maintain insurance on the subject property; and
(B)
the Government may place a lien against the property or file a lis pendens to ensure that the property is not transferred to another person.
(8)
This subsection shall not apply if the seized property -
(A)
is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized;
(B)
is to be used as evidence of a violation of the law;
(C)
by reason of design or other characteristic, is particularly suited for use in illegal activities; or
(D)
is likely to be used to commit additional criminal acts if returned to the claimant.
(g) Proportionality. -
(1)
The claimant under subsection (a)(4) may petition the court to determine whether the forfeiture was constitutionally excessive.
(2)
In making this determination, the court shall compare the forfeiture to the gravity of the offense giving rise to the forfeiture.
(3)
The claimant shall have the burden of establishing that the forfeiture is grossly disproportional by a preponderance of the evidence at a hearing conducted by the court without a jury.
(4)
If the court finds that the forfeiture is grossly disproportional to the offense it shall reduce or eliminate the forfeiture as necessary to avoid a violation of the Excessive Fines Clause of the Eighth Amendment of the Constitution.
(h) Civil Fine. -
(1)
In any civil forfeiture proceeding under a civil forfeiture statute in which the Government prevails, if the court finds that the claimant's assertion of an interest in the property was frivolous, the court may impose a civil fine on the claimant of an amount equal to 10 percent of the value of the forfeited property, but in no event shall the fine be less than $250 or greater than $5,000.
(2)
Any civil fine imposed under this subsection shall not preclude the court from imposing sanctions under rule 11 of the Federal Rules of Civil Procedure.
(3)
In addition to the limitations of section 1915 of title 28, United States Code, in no event shall a prisoner file a claim under a civil forfeiture statute or appeal a judgment in a civil action or proceeding based on a civil forfeiture statute if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous or malicious, unless the prisoner shows extraordinary and exceptional circumstances.
(i) Civil Forfeiture Statute Defined. -
In this section, the term ''civil forfeiture statute'' -
(1)
means any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense; and
(2)
does not include -
(A)
the Tariff Act of 1930 or any other provision of law codified in title 19;
(B)
the Internal Revenue Code of 1986;
(C)
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.);
(D)
the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.) or the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq.); or
(E)
section 1 of title VI of the Act of June 15, 1917 (40 Stat. 233; 22 U.S.C. 401).
(j) Restraining Orders; Protective Orders. -
(1)
Upon application of the United States, the court may enter a restraining order or injunction, require the execution of satisfactory performance bonds, create receiverships, appoint conservators, custodians, appraisers, accountants, or trustees, or take any other action to seize, secure, maintain, or preserve the availability of property subject to civil forfeiture -
(A)
upon the filing of a civil forfeiture complaint alleging that the property with respect to which the order is sought is subject to civil forfeiture; or
(B)
prior to the filing of such a complaint, if, after notice to persons appearing to have an interest in the property and opportunity for a hearing, the court determines that -
(i)
there is a substantial probability that the United States will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and
(ii)
the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered.
(2)
An order entered pursuant to paragraph (1)(B) shall be effective for not more than 90 days, unless extended by the court for good cause shown, or unless a complaint described in paragraph (1)(A) has been filed.
(3)
A temporary restraining order under this subsection may be entered upon application of the United States without notice or opportunity for a hearing when a complaint has not yet been filed with respect to the property, if the United States demonstrates that there is probable cause to believe that the property with respect to which the order is sought is subject to civil forfeiture and that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall expire not more than 10 days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered under this paragraph shall be held at the earliest possible time and prior to the expiration of the temporary order.
(4)
The court may receive and consider, at a hearing held pursuant to this subsection, evidence and information that would be inadmissible under the Federal Rules of Evidence
Sec. 983. - General rules for civil forfeiture proceedings
(a) Notice; Claim; Complaint. -
(1)
(A)
(i)
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.
(ii)
No notice is required if, before the 60-day period expires, the Government files a civil judicial forfeiture action against the property and provides notice of that action as required by law.
(iii)
If, before the 60-day period expires, the Government does not file a civil judicial forfeiture action, but does obtain a criminal indictment containing an allegation that the property is subject to forfeiture, the Government shall either -
(I)
send notice within the 60 days and continue the nonjudicial civil forfeiture proceeding under this section; or
(II)
terminate the nonjudicial civil forfeiture proceeding, and take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute.
(iv)
In a case in which the property is seized by a State or local law enforcement agency and turned over to a Federal law enforcement agency for the purpose of forfeiture under Federal law, notice shall be sent not more than 90 days after the date of seizure by the State or local law enforcement agency.
(v)
If the identity or interest of a party is not determined until after the seizure or turnover but is determined before a declaration of forfeiture is entered, notice shall be sent to such interested party not later than 60 days after the determination by the Government of the identity of the party or the party's interest.
(B)
A supervisory official in the headquarters office of the seizing agency may extend the period for sending notice under subparagraph (A) for a period not to exceed 30 days (which period may not be further extended except by a court), if the official determines that the conditions in subparagraph (D) are present.
(C)
Upon motion by the Government, a court may extend the period for sending notice under subparagraph (A) for a period not to exceed 60 days, which period may be further extended by the court for 60-day periods, as necessary, if the court determines, based on a written certification of a supervisory official in the headquarters office of the seizing agency, that the conditions in subparagraph (D) are present.
(D)
The period for sending notice under this paragraph may be extended only if there is reason to believe that notice may have an adverse result, including -
(i)
endangering the life or physical safety of an individual;
(ii)
flight from prosecution;
(iii)
destruction of or tampering with evidence;
(iv)
intimidation of potential witnesses; or
(v)
otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(E)
Each of the Federal seizing agencies conducting nonjudicial forfeitures under this section shall report periodically to the Committees on the Judiciary of the House of Representatives and the Senate the number of occasions when an extension of time is granted under subparagraph (B).
(F)
If the Government does not send notice of a seizure of property in accordance with subparagraph (A) to the person from whom the property was seized, and no extension of time is granted, the Government shall return the property to that person without prejudice to the right of the Government to commence a forfeiture proceeding at a later time. The Government shall not be required to return contraband or other property that the person from whom the property was seized may not legally possess.
(2)
(A)
Any person claiming property seized in a nonjudicial civil forfeiture proceeding under a civil forfeiture statute may file a claim with the appropriate official after the seizure.
(B)
A claim under subparagraph (A) may be filed not later than the deadline set forth in a personal notice letter (which deadline may be not earlier than 35 days after the date the letter is mailed), except that if that letter is not received, then a claim may be filed not later than 30 days after the date of final publication of notice of seizure.
(C)
A claim shall -
(i)
identify the specific property being claimed;
(ii)
state the claimant's interest in such property; and
(iii)
be made under oath, subject to penalty of perjury.
(D)
A claim need not be made in any particular form. Each Federal agency conducting nonjudicial forfeitures under this section shall make claim forms generally available on request, which forms shall be written in easily understandable language.
(E)
Any person may make a claim under subparagraph (A) without posting bond with respect to the property which is the subject of the claim.
(3)
(A)
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.
(B)
If the Government does not -
(i)
file a complaint for forfeiture or return the property, in accordance with subparagraph (A); or
(ii)
before the time for filing a complaint has expired -
(I)
obtain a criminal indictment containing an allegation that the property is subject to forfeiture; and
(II)
take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute, the Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.
(C)
In lieu of, or in addition to, filing a civil forfeiture complaint, the Government may include a forfeiture allegation in a criminal indictment. If criminal forfeiture is the only forfeiture proceeding commenced by the Government, the Government's right to continued possession of the property shall be governed by the applicable criminal forfeiture statute.
(D)
No complaint may be dismissed on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property.
(4)
(A)
In any case in which the Government files in the appropriate United States district court a complaint for forfeiture of property, any person claiming an interest in the seized property may file a claim asserting such person's interest in the property in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims, except that such claim may be filed not later than 30 days after the date of service of the Government's complaint or, as applicable, not later than 30 days after the date of final publication of notice of the filing of the complaint.
(B)
A person asserting an interest in seized property, in accordance with subparagraph (A), shall file an answer to the Government's complaint for forfeiture not later than 20 days after the date of the filing of the claim.
(b) Representation. -
(1)
(A)
If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the person is represented by counsel appointed under section 3006A of this title in connection with a related criminal case, the court may authorize counsel to represent that person with respect to the claim.
(B)
In determining whether to authorize counsel to represent a person under subparagraph (A), the court shall take into account such factors as -
(i)
the person's standing to contest the forfeiture; and
(ii)
whether the claim appears to be made in good faith.
(2)
(A)
If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil forfeiture statute is financially unable to obtain representation by counsel, and the property subject to forfeiture is real property that is being used by the person as a primary residence, the court, at the request of the person, shall insure that the person is represented by an attorney for the Legal Services Corporation with respect to the claim.
(B)
(i)
At appropriate times during a representation under subparagraph (A), the Legal Services Corporation shall submit a statement of reasonable attorney fees and costs to the court.
(ii)
The court shall enter a judgment in favor of the Legal Services Corporation for reasonable attorney fees and costs submitted pursuant to clause (i) and treat such judgment as payable under section 2465 of title 28, United States Code, regardless of the outcome of the case.
(3)
The court shall set the compensation for representation under this subsection, which shall be equivalent to that provided for court-appointed representation under section 3006A of this title.
(c) Burden of Proof. -
In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property -
(1)
the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;
(2)
the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and
(3)
if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.
(d) Innocent Owner Defense. -
(1)
An innocent owner's interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.
(2)
(A)
With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term ''innocent owner'' means an owner who -
(i)
did not know of the conduct giving rise to forfeiture; or
(ii)
upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.
(B)
(i)
For the purposes of this paragraph, ways in which a person may show that such person did all that reasonably could be expected may include demonstrating that such person, to the extent permitted by law -
(I)
gave timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and
(II)
in a timely fashion revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.
(ii)
A person is not required by this subparagraph to take steps that the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical danger.
(3)
(A)
With respect to a property interest acquired after the conduct giving rise to the forfeiture has taken place, the term ''innocent owner'' means a person who, at the time that person acquired the interest in the property -
(i)
was a bona fide purchaser or seller for value (including a purchaser or seller of goods or services for value); and
(ii)
did not know and was reasonably without cause to believe that the property was subject to forfeiture.
(B)
An otherwise valid claim under subparagraph (A) shall not be denied on the ground that the claimant gave nothing of value in exchange for the property if -
(i)
the property is the primary residence of the claimant;
(ii)
depriving the claimant of the property would deprive the claimant of the means to maintain reasonable shelter in the community for the claimant and all dependents residing with the claimant;
(iii)
the property is not, and is not traceable to, the proceeds of any criminal offense; and
(iv)
the claimant acquired his or her interest in the property through marriage, divorce, or legal separation, or the claimant was the spouse or legal dependent of a person whose death resulted in the transfer of the property to the claimant through inheritance or probate,
except that the court shall limit the value of any real property interest for which innocent ownership is recognized under this subparagraph to the value necessary to maintain reasonable shelter in the community for such claimant and all dependents residing with the claimant.
(4)
Notwithstanding any provision of this subsection, no person may assert an ownership interest under this subsection in contraband or other property that it is illegal to possess.
(5)
If the court determines, in accordance with this section, that an innocent owner has a partial interest in property otherwise subject to forfeiture, or a joint tenancy or tenancy by the entirety in such property, the court may enter an appropriate order -
(A)
severing the property;
(B)
transferring the property to the Government with a provision that the Government compensate the innocent owner to the extent of his or her ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets; or
(C)
permitting the innocent owner to retain the property subject to a lien in favor of the Government to the extent of the forfeitable interest in the property.
(6)
In this subsection, the term ''owner'' -
(A)
means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest; and
(B)
does not include -
(i)
a person with only a general unsecured interest in, or claim against, the property or estate of another;
(ii)
a bailee unless the bailor is identified and the bailee shows a colorable legitimate interest in the property seized; or
(iii)
a nominee who exercises no dominion or control over the property.
(e) Motion To Set Aside Forfeiture. -
(1)
Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person's interest in the property, which motion shall be granted if -
(A)
the Government knew, or reasonably should have known, of the moving party's interest and failed to take reasonable steps to provide such party with notice; and
(B)
the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.
(2)
(A)
Notwithstanding the expiration of any applicable statute of limitations, if the court grants a motion under paragraph (1), the court shall set aside the declaration of forfeiture as to the interest of the moving party without prejudice to the right of the Government to commence a subsequent forfeiture proceeding as to the interest of the moving party.
(B)
Any proceeding described in subparagraph (A) shall be commenced -
(i)
if nonjudicial, within 60 days of the entry of the order granting the motion; or
(ii)
if judicial, within 6 months of the entry of the order granting the motion.
(3)
A motion under paragraph (1) may be filed not later than 5 years after the date of final publication of notice of seizure of the property.
(4)
If, at the time a motion made under paragraph (1) is granted, the forfeited property has been disposed of by the Government in accordance with law, the Government may institute proceedings against a substitute sum of money equal to the value of the moving party's interest in the property at the time the property was disposed of.
(5)
A motion filed under this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.
(f) Release Of Seized Property. -
(1)
A claimant under subsection (a) is entitled to immediate release of seized property if -
(A)
the claimant has a possessory interest in the property;
(B)
the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;
(C)
the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;
(D)
the claimant's likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding; and
(E)
none of the conditions set forth in paragraph (8) applies.
(2)
A claimant seeking release of property under this subsection must request possession of the property from the appropriate official, and the request must set forth the basis on which the requirements of paragraph (1) are met.
(3)
(A)
If not later than 15 days after the date of a request under paragraph (2) the property has not been released, the claimant may file a petition in the district court in which the complaint has been filed or, if no complaint has been filed, in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized.
(B)
The petition described in subparagraph (A) shall set forth -
(i)
the basis on which the requirements of paragraph (1) are met; and
(ii)
the steps the claimant has taken to secure release of the property from the appropriate official.
(4)
If the Government establishes that the claimant's claim is frivolous, the court shall deny the petition. In responding to a petition under this subsection on other grounds, the Government may in appropriate cases submit evidence ex parte in order to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending criminal trial.
(5)
The court shall render a decision on a petition filed under paragraph (3) not later than 30 days after the date of the filing, unless such 30-day limitation is extended by consent of the parties or by the court for good cause shown.
(6)
If -
(A)
a petition is filed under paragraph (3); and
(B)
the claimant demonstrates that the requirements of paragraph (1) have been met,
the district court shall order that the property be returned to the claimant, pending completion of proceedings by the Government to obtain forfeiture of the property.
(7)
If the court grants a petition under paragraph (3) -
(A)
the court may enter any order necessary to ensure that the value of the property is maintained while the forfeiture action is pending, including -
(i)
permitting the inspection, photographing, and inventory of the property;
(ii)
fixing a bond in accordance with rule E(5) of the Supplemental Rules for Certain Admiralty and Maritime Claims; and
(iii)
requiring the claimant to obtain or maintain insurance on the subject property; and
(B)
the Government may place a lien against the property or file a lis pendens to ensure that the property is not transferred to another person.
(8)
This subsection shall not apply if the seized property -
(A)
is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized;
(B)
is to be used as evidence of a violation of the law;
(C)
by reason of design or other characteristic, is particularly suited for use in illegal activities; or
(D)
is likely to be used to commit additional criminal acts if returned to the claimant.
(g) Proportionality. -
(1)
The claimant under subsection (a)(4) may petition the court to determine whether the forfeiture was constitutionally excessive.
(2)
In making this determination, the court shall compare the forfeiture to the gravity of the offense giving rise to the forfeiture.
(3)
The claimant shall have the burden of establishing that the forfeiture is grossly disproportional by a preponderance of the evidence at a hearing conducted by the court without a jury.
(4)
If the court finds that the forfeiture is grossly disproportional to the offense it shall reduce or eliminate the forfeiture as necessary to avoid a violation of the Excessive Fines Clause of the Eighth Amendment of the Constitution.
(h) Civil Fine. -
(1)
In any civil forfeiture proceeding under a civil forfeiture statute in which the Government prevails, if the court finds that the claimant's assertion of an interest in the property was frivolous, the court may impose a civil fine on the claimant of an amount equal to 10 percent of the value of the forfeited property, but in no event shall the fine be less than $250 or greater than $5,000.
(2)
Any civil fine imposed under this subsection shall not preclude the court from imposing sanctions under rule 11 of the Federal Rules of Civil Procedure.
(3)
In addition to the limitations of section 1915 of title 28, United States Code, in no event shall a prisoner file a claim under a civil forfeiture statute or appeal a judgment in a civil action or proceeding based on a civil forfeiture statute if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous or malicious, unless the prisoner shows extraordinary and exceptional circumstances.
(i) Civil Forfeiture Statute Defined. -
In this section, the term ''civil forfeiture statute'' -
(1)
means any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense; and
(2)
does not include -
(A)
the Tariff Act of 1930 or any other provision of law codified in title 19;
(B)
the Internal Revenue Code of 1986;
(C)
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.);
(D)
the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.) or the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq.); or
(E)
section 1 of title VI of the Act of June 15, 1917 (40 Stat. 233; 22 U.S.C. 401).
(j) Restraining Orders; Protective Orders. -
(1)
Upon application of the United States, the court may enter a restraining order or injunction, require the execution of satisfactory performance bonds, create receiverships, appoint conservators, custodians, appraisers, accountants, or trustees, or take any other action to seize, secure, maintain, or preserve the availability of property subject to civil forfeiture -
(A)
upon the filing of a civil forfeiture complaint alleging that the property with respect to which the order is sought is subject to civil forfeiture; or
(B)
prior to the filing of such a complaint, if, after notice to persons appearing to have an interest in the property and opportunity for a hearing, the court determines that -
(i)
there is a substantial probability that the United States will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and
(ii)
the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered.
(2)
An order entered pursuant to paragraph (1)(B) shall be effective for not more than 90 days, unless extended by the court for good cause shown, or unless a complaint described in paragraph (1)(A) has been filed.
(3)
A temporary restraining order under this subsection may be entered upon application of the United States without notice or opportunity for a hearing when a complaint has not yet been filed with respect to the property, if the United States demonstrates that there is probable cause to believe that the property with respect to which the order is sought is subject to civil forfeiture and that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall expire not more than 10 days after the date on which it is entered, unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order entered under this paragraph shall be held at the earliest possible time and prior to the expiration of the temporary order.
(4)
The court may receive and consider, at a hearing held pursuant to this subsection, evidence and information that would be inadmissible under the Federal Rules of Evidence
Monday, May 10, 2004
Sunday, May 09, 2004
Thursday, May 06, 2004
JOSE LOUIS NAVARRO, Plaintiff - Appellant, v. CITY OF SOUTH GATE, a Municipal Corporation; GEORGE TROXCIL, individually; GEORGE TROXCIL, in his official capacity as Chief of Police; ALBERT CARRILLO; A. LOPEZ, Defendants - Appellees.
No. 02-55395
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
81 Fed. Appx. 192; 2003 U.S. App. LEXIS 23421
June 4, 2003, Argued and Submitted, Pasadena, California
November 14, 2003, Filed
I. Fourth Amendment
The officers' failure to further investigate the possibility of self-defense -- indeed, their failure even to acknowledge the evidence in support of such a claim -- might not be fatal to their claim of qualified immunity if self-defense were merely an affirmative defense on which Navarro had the burden of proof. See Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003) [**8] ("[A] law enforcement officer is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent." (internal quotation marks omitted)). In this case, however, Navarro was arrested for a crime that is statutorily defined so that negation of self-defense is an element of the offense on which the prosecution bears the burden of proof. Cal. Penal Code § 246.3 (West 2003); People v. Alonzo, 13 Cal. App. 4th 535, 538, 16 Cal. Rptr. 2d 656 (1993); California Jury Instructions, Criminal Instruction 9.03.3 (7th ed. 2003). By failing to investigate material exculpatory evidence that negated an element of the offense, the officers did not consider the totality of the circumstances, and therefore they did not act reasonably in concluding that probable cause existed to arrest Navarro. n3 See Broam, 320 F.3d at 1032 ("An officer is not entitled to a qualified immunity defense ... where exculpatory evidence is ignored that would negate a finding of probable cause.").
A lack of evidence on a particular element, however, is quite a different matter from the presence of evidence that affirmatively suggests that an element cannot be met. Defendants have cited no authority for the proposition that officers may ignore exculpatory evidence on an element of the offense in making probable cause determinations.
Given the clearly established nature of both the law defining the offense at issue and the requirement that officers consider the totality of the circumstances (exculpatory as well as inculpatory), as well as the presence of strong evidence indicating that Navarro acted in self-defense, a reasonable officer would not have sought to arrest Navarro without first considering whether the discharge of the firearm was privileged. This is particularly the case in light of the fact that the officers' investigation took nearly two weeks to finish and did not present the difficulty of drawing fine legal distinctions under exigent circumstances. [*196] Cf. Graves v. City of Coeur D'Alene, 339 F.3d 828, 846-47 (9th Cir. 2003).
II. Eighth Amendment
Navarro next contends the district court erred in granting summary judgment on his two Eighth Amendment claims.
First, Navarro contends the officers submitted an inaccurate criminal history print-out, which resulted in a $ 55,000 increase in bail. We agree [**10] that a material dispute of fact would exist if Navarro had presented evidence that the inaccurate criminal history report was before the court when the court set bail. However, we find no such evidence in the record.
Navarro points only to a certified copy of the clerk's docket from Los Angeles Municipal Court. The docket notes that during the bail hearing, "[a] copy of the complaint and the arrest report [was] given to defendant's counsel." Even presuming the court also had the complaint and arrest report before it, there is no evidence that the inaccurate criminal history was attached to either of these two documents. As the district court noted, Navarro has not submitted certified copies of either the arrest report or the complaint from which we could determine their contents. Thus, Navarro has not put forth evidence sufficient to create a triable issue of fact.
In sum, we reverse the summary judgment on Navarro's [**14] Fourth Amendment claim and remand for further proceedings. However, we affirm the grant of summary judgment on his Eighth and First Amendment claims.
Each party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED in part and REMANDED.
No. 02-55395
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
81 Fed. Appx. 192; 2003 U.S. App. LEXIS 23421
June 4, 2003, Argued and Submitted, Pasadena, California
November 14, 2003, Filed
I. Fourth Amendment
The officers' failure to further investigate the possibility of self-defense -- indeed, their failure even to acknowledge the evidence in support of such a claim -- might not be fatal to their claim of qualified immunity if self-defense were merely an affirmative defense on which Navarro had the burden of proof. See Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003) [**8] ("[A] law enforcement officer is not required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent." (internal quotation marks omitted)). In this case, however, Navarro was arrested for a crime that is statutorily defined so that negation of self-defense is an element of the offense on which the prosecution bears the burden of proof. Cal. Penal Code § 246.3 (West 2003); People v. Alonzo, 13 Cal. App. 4th 535, 538, 16 Cal. Rptr. 2d 656 (1993); California Jury Instructions, Criminal Instruction 9.03.3 (7th ed. 2003). By failing to investigate material exculpatory evidence that negated an element of the offense, the officers did not consider the totality of the circumstances, and therefore they did not act reasonably in concluding that probable cause existed to arrest Navarro. n3 See Broam, 320 F.3d at 1032 ("An officer is not entitled to a qualified immunity defense ... where exculpatory evidence is ignored that would negate a finding of probable cause.").
A lack of evidence on a particular element, however, is quite a different matter from the presence of evidence that affirmatively suggests that an element cannot be met. Defendants have cited no authority for the proposition that officers may ignore exculpatory evidence on an element of the offense in making probable cause determinations.
Given the clearly established nature of both the law defining the offense at issue and the requirement that officers consider the totality of the circumstances (exculpatory as well as inculpatory), as well as the presence of strong evidence indicating that Navarro acted in self-defense, a reasonable officer would not have sought to arrest Navarro without first considering whether the discharge of the firearm was privileged. This is particularly the case in light of the fact that the officers' investigation took nearly two weeks to finish and did not present the difficulty of drawing fine legal distinctions under exigent circumstances. [*196] Cf. Graves v. City of Coeur D'Alene, 339 F.3d 828, 846-47 (9th Cir. 2003).
II. Eighth Amendment
Navarro next contends the district court erred in granting summary judgment on his two Eighth Amendment claims.
First, Navarro contends the officers submitted an inaccurate criminal history print-out, which resulted in a $ 55,000 increase in bail. We agree [**10] that a material dispute of fact would exist if Navarro had presented evidence that the inaccurate criminal history report was before the court when the court set bail. However, we find no such evidence in the record.
Navarro points only to a certified copy of the clerk's docket from Los Angeles Municipal Court. The docket notes that during the bail hearing, "[a] copy of the complaint and the arrest report [was] given to defendant's counsel." Even presuming the court also had the complaint and arrest report before it, there is no evidence that the inaccurate criminal history was attached to either of these two documents. As the district court noted, Navarro has not submitted certified copies of either the arrest report or the complaint from which we could determine their contents. Thus, Navarro has not put forth evidence sufficient to create a triable issue of fact.
In sum, we reverse the summary judgment on Navarro's [**14] Fourth Amendment claim and remand for further proceedings. However, we affirm the grant of summary judgment on his Eighth and First Amendment claims.
Each party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED in part and REMANDED.
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