USCA1 Opinion

NOT FOR PUBLICATION

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UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-1936

UNITED STATES,

Appellee,

v.

BILLY RAY MCDOWELL, JR.,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Campbell, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________

____________________

Billy Ray McDowell, Jr. on brief pro se.

_______________________

Guillermo Gil, United States Attorney, and Joseph J. Frattallo

_____________
____________________
Assistant United States Attorney, on brief for appellee.

____________________

June 9, 1997
____________________

Per Curiam.
__________

Billy Ray McDowell

was convicted of

drug

trafficking offenses in June

in the

cellular

district court

telephone,

for the

and a

each of which he claims

his

arrest in

these items

U.S.C.

1988.

In March 1996,

return of

briefcase

he moved

$4000 in

containing documents,

were seized from him at the

February 1988;

were later

according to

time of

the government,

administratively forfeited.

881 (providing for

cash, a

forfeiture of property or

See 21
___

money

used to facilitate or traceable to a drug offense); 19 U.S.C.

1607-09 (outlining administrative forfeiture procedure for

items worth

$500,000 or

less).

In

his collateral

attack,

McDowell claims that he received no notice of the forfeitures

and alleges that they

violated his right to due

should be invalidated.

See United States

___ _____________

process and

v. Giraldo,
_______

45

F.3d 509, 511-12 (1st Cir. 1995) (per curiam).

The short

district court

forfeitures

response submitted

was apparently

were

suggestion, the

in

fact

by the government

intended to suggest

valid.

government simply

But

asked

to "take notice" of the fact that the

been

"administratively

forfeited,"

declarations of forfeiture for

recited that notice had been

The

to

in the

that the

support

this

the district court

cash and telephone had

as

evidenced

by

these two items, which merely

sent to all interested persons.

government also reported that it

recollection of a seized briefcase.

-2-2-

had neither record nor

The district court denied the defendant's motion, citing

the

"facts" provided by

the Government--facts pertaining to

the administrative forfeiture proceedings and not the

of the forfeiture.

repeat

the

The defendant now appeals.

arguments

advanced below,

with

merits

The parties

the government

adding the contention that the district court in

Puerto Rico

lacked jurisdiction to decide the motion because the property

was seized in Texas.

1.

With

defendant

appears

concedes

that

to

to

the

have an

cell phone

almost

and

cash,

the

hopeless

case.

He

that the seizure occurred at the time of the arrest

led to

airport

respect

his

locker

conviction, as

which he

thought

he

attempted to

contained

See
___

1006 (1st

Cir.

McDowell, 918
________

1990).

recited in the first appellate

this

exact

case also reveal that

amount of the

from other

On the

the drugs, separately

that he repeatedly

coconspirators by phone.

surface, the

opinion in

McDowell carried $4000 cash, the

delivery fee for

funds, and

an

cocaine.

United States v.
______________

The facts

F.2d 1004,

open

communicated with

McDowell, 918 F.2d at 1006.

________

government's case

looks extremely

strong.

F.3d

See United States v. One Lot of U.S. Currency, 103

___ _____________
_________________________

1048, 1053-54

government

property

shows

has a

(1st

Cir. 1997)

probable

cause

sufficient

defendant fails to rebut);

to

nexus to

(forfeiture proper

believe

that

if

seized

illegal activity,

and

United States v. One Lot of U.S.

_____________
________________

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Currency,
________

believe

927 F.2d 30, 32 (1st Cir. 1991) (probable cause to

that cash and car were forfeitable where cash amount

equaled the

promised purchase

price in a

sting transaction

and the defendant drove the car to the airport meeting place,

apparently

drugs).

planning to

Nothing in the

use

it to

transport the

purchased

defendant's papers explains

how he

expects to avoid forfeiture, even if the prior administrative

proceedings were procedurally defective.

Nevertheless,

this is only

our own reconstruction; the

government has not made, and the

defendant has not answered,

such

should

claim; and

not

there is

turn square

no

corners

reason why

even

if it

the government

is

defending

against a

dubious collateral attack on a

forfeiture.

Here,

the record contains no response to the defendant's allegation

that he had not received adequate notice, which in some cases

might

negate a

512,

and the

property was

forfeiture's validity,

government did

Giraldo, 45
_______

not attempt

plainly forfeitable,

giving

to show

F.3d at

that the

the defendant

an

opportunity to answer.

There

show

what

is some conflict

when the

in the law

defendant makes

as to

who needs to

claim like

the one

before us.

Compare United States v. Deninno,

_______ ______________
_______

Cir. 1996)

1997).

with Boero
____ _____

v. DEA,
___

103 F.3d 82,

111 F.3d 301,

85-86 (10th

306 (2d

We see no reason to lay down any general rule.

Cir.

But

-4-4-

in the present case we think that an adequate answer needs to

be

provided

by

substantive--before

the

government--whether

defendant's

motion

may

procedural

be

or

summarily

denied.

2.

As

to

McDowell's

further

allegation

that

briefcase containing documents

government

it

was improperly forfeited, the

says that it has no record

of such an item.

But

points to no inventory list or similar evidence; nor does

it provide

any other explanation for

the defendant's

version of

the divergence between

the events and

the government's

records.

The

since

government

may

have an

this delay might help explain

gaps in the government's evidence.

United States, 712 F.2d 717,

______________

for

laches defense

the defendant waited eight years to file a motion that

could have been made promptly;

the

excellent

return of

However, as

property

719-20 (1st Cir. 1983) (motion

subject to

the government did

Cf. Angel-Torres v.
___ ____________

equitable

principles).

not assert laches

below and

the district court made

no relevant findings, we

decline to

affirm the denial of the motion with respect to the briefcase

on that ground.

3.

The government belatedly

defendant brought

his claim in

says on

appeal that

the wrong court.

the

We do not

think that this minimally briefed case is a vehicle for us to

determine

where

post-conviction

-5-5-

motion

for

return

of

property

should

be made

related criminal

question on

trial

v. Giovanelli,
__________

(venue

proper

in

47 F.3d

only

the property

occurred in

which other

States
______

Covington,
_________

if

different

circuits disagree.

998 F.2d 116,

prosecuting

974,

(venue

proper

States
______

v. Garcia, 65 F.3d
______

Compare United
_______ ______

and
___

Cir. 1995)

in prosecuting

district)

17, 20-21 (4th

While

and the

districts--a

118-19 (2d

district)

975 (8th

proper only in seizing district).

is free to hear

seizure

Cir. 1993)

Thompson
________

v.

(per curiam)

with
____

United
______

Cir. 1995) (venue

the district

the government's argument on this

court

point, it

may be simpler to assume jurisdiction arguendo, assuming that

________

the

government

answer

has

an adequate

to defendant's

ourselves to affirm

claim.

substantive

In

or procedural

any event,

the dismissal based on

we

decline

a venue argument

never presented to the district court.

The district court's judgment

remanded
________

for

further

opinion.

It is so ordered.
________________

proceedings

is vacated and the matter

_______

consistent

with

this

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