Submitted: January 9, 2017
from United States District Court for the Southern District
of Iowa - Des Moines
COLLOTON, MURPHY, and MELLOY, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
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 courtconcluded that the motion was barred by
the statute of limitations, and that Mendez was not entitled
to equitable tolling. We agree and affirm.
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.
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.
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).
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."
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).
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.
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 ...