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United States v. Mendez

United States Court of Appeals, Eighth Circuit

June 30, 2017

United States of America, Plaintiff- Appellee,
v.
Felipe Mendez, Jr., Defendant-Appellant.

          Submitted: January 9, 2017

         Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before COLLOTON, MURPHY, and MELLOY, Circuit Judges.

          COLLOTON, CIRCUIT JUDGE.

         This appeal concerns the timeliness of a motion under Federal Rule of Criminal Procedure 41(g) for the return of seized property. Felipe Mendez was arrested after a traffic stop in July 2004, and police seized various items of property. After a jury later convicted Mendez of a drug trafficking conspiracy, the district court entered judgment in January 2006, and this court affirmed on direct appeal in July 2007. Mendez moved for the return of seized property in January 2016. The district court[1]concluded that the motion was barred by the statute of limitations, and that Mendez was not entitled to equitable tolling. We agree and affirm.

         I.

         Police arrested Mendez after a traffic stop on July 8, 2004. They seized the automobile that Mendez was driving, $4, 800 cash and other items from the car, and $2, 273 from Mendez's person. The police also seized another $10, 632 cash in connection with Mendez's arrest, although the record does not specify where it was found.

         A grand jury in August 2004 charged Mendez with conspiracy to distribute methamphetamine. He was convicted by a jury and sentenced to 420 months in prison. The district court entered judgment on January 19, 2006, and this court affirmed the judgment on July 5, 2007. The car and the $10, 632 were forfeited by court order to the State of Iowa; the rest of the seized items remained with the government.

         In 2009, Mendez moved to vacate his sentence under 28 U.S.C. § 2255. The district court denied Mendez's motion in March 2012. The district court denied a certificate of appealability in June 2012, and this court did the same in October 2012. More than a year later, in November 2013, the district court received a letter from Mendez. Enclosed with the mailing was a copy of an earlier letter that Mendez claimed to have sent in January 2013. The earlier letter, which does not appear on the docket, asked the court to send Mendez documents related to the forfeiture order so that he could prepare an unspecified motion. The court heard nothing further from Mendez until January 25, 2016, when Mendez filed a motion for return of property under Federal Rule of Criminal Procedure 41(g).

         Mendez sought an order directing the government to return personal property, including the three blocks of cash ($4, 800, $2, 273, and $10, 632), the automobile, and some personal effects. Mendez argued that the government had no justification to retain the property because the criminal prosecution had concluded, post-conviction appeals had been exhausted, and the property was not subject to forfeiture. Mendez claimed that "[s]ince as early as February 2014, " he had "made ample attempts to negotiate a return of the property with the Government."

         The district court denied Mendez's motion as untimely. The court applied the six-year statute of limitations set forth in 28 U.S.C. § 2401(a) and reasoned that the limitations period began at the conclusion of the criminal proceedings-on January 19, 2006, when the district court entered judgment. The court observed that even if the limitations period began to run in July 2007, at the conclusion of Mendez's direct appeal, the Rule 41(g) motion would still be late. The court declined to apply equitable tolling. The court also observed that even if the motion were timely, Mendez could not recover the property that was forfeited to the State of Iowa. Mendez then moved unsuccessfully for reconsideration and for an evidentiary hearing on equitable tolling. We review de novo the district court's conclusion that Mendez's motion was time-barred and not eligible for equitable tolling. Zarecor v. Morgan Keegan & Co., 801 F.3d 882, 886 (8th Cir. 2015); Earl v. Fabian, 556 F.3d 717, 722 (8th Cir. 2009).

         II.

         Rule 41(g) provides that a person "aggrieved . . . by the deprivation of property may move for the property's return." The rule does not specify a statute of limitations. Other courts have applied the catch-all provision of 28 U.S.C. § 2401(a), which states that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." Although a motion is filed under Criminal Rule 41(g), when the filing comes after the termination of criminal proceedings, it is treated as a civil action for equitable relief. See Bertin v. United States, 478 F.3d 489, 493 (2d Cir. 2007).

         The parties agree on the six-year limitations period, but they dispute when Mendez's right of action accrued. The statute starts to run when the movant knew, or in the exercise of reasonable diligence should have known, that he had a claim. See Loudner v. United States, 108 F.3d 896, 900 (8th Cir. 1997). In this ...


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