United States v. Molina-Escobar

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 99-21007 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FRANCISCO ALBERTO MOLINA-ESCOBAR,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Southern District of Texas (H-91-CR-151-2) _________________________ August 14, 2000

Before SMITH and DENNIS, Circuit Francisco Molina-Escobar (“Molina”) ap- Judges, and HARMON, District Judge.* peals the denial of a request for return of cur- rency.” Construing his pro se petition as a PER CURIAM:** FED. R. CIV. P. 60(b) motion, and finding no error, we affirm. * District Judge of the Southern District of Texas, sitting by designation. ** (...continued) ** Pursuant to 5TH CIR. R. 47.5, the court has published and is not precedent except under the determined that this opinion should not be limited circumstances set forth in 5TH CIR. R. (continued...) 47.5.4.

I. limitation is inapplicable only when the movant At Molina’s arrest for conspiracy to possess asserts that the judgment is void under rule with intent to distribute cocaine, the 60(b)(4), which occurs only if the rendering government seized $19,001. Molina pleaded court lacked jurisdiction of the subject matter guilty, and the court entered a judgment of or of the parties, or if it acted in a manner conviction in April 1992. In 1994, Molina inconsistent with due process. See New York filed a “Motion for Return of Seized Life Ins. Co. v. Brown, 84 F.3d 137, 142-43 Property,” purportedly pursuant to FED. R. (5th Cir. 1996). Although Molina does not CRIM. P. 41(e). The court denied the motion, contest jurisdiction, we note that district finding t hat the money had been courts have jurisdiction over collateral attacks administratively forfeited following notice to on administrative forfeitures. See United Molina and his attorney. States v. Arreola-Ramos, 60 F.3d 188, 191 (5th Cir. 1995).1 Molina does not claim that In June 1999, Molina filed a “Petition for the court denied him due process. Return of U.S. Currency” on the ground that the government had failed to give him notice Not only does Molina fail to demonstrate of the forfeiture. Because the court had that the summary judgment was error, but his previously decided this issue, it denied the rule 60(b) request that the court reconsider the petition, holding that the proper means for lack-of-notice argument was not filed within a contesting the denial would have been by an reasonable timeSSno reason justifies a lapse of appeal. five years before reasserting identical arguments.2 II. Once a criminal proceeding has ended, rule AFFIRMED. 41(e) is not the appropriate vehicle to obtain allegedly improperly forfeited property. See United States v. Robinson, 78 F.3d 172, 174 1 Although there is disagreement over the basis (5th Cir. 1996). Because, however, pro se for this jurisdiction, the federal circuits agree that pleadings are liberally construed as seeking the it exists: “[T]he federal courts have universally proper remedy, Molina’s original motion is upheld jurisdiction to review whether an treated as a civil complaint, and the denial of administrative forfeiture satisfied statutory and due that motion as a summary judgment. See id. process requirements.” United States v. Woodall, Although it is not evident under what authority 12 F.3d 791, 793 (8th Cir. 1993). Molina brings the current petition, we once 2 again construe his pro se pleadings as seeking See Lairsey v. Advance Abrasives Co., 542 the pro per remedy, namely a FED. R. CIV. P. F.2d 928, 930 (5th Cir. 1976) (“‘What constitutes reasonable time must of necessity depend upon the 60(b) motion for relief from judgment. facts in each individual case.’ The courts consider whether the party opposing the motion has been Depending on the asserted ground for re- prejudiced by the delay in seeking relief and they lief, a rule 60(b) motion must either be made consider whether the moving party had some good within a “reasonable time,” which may or may reason for his failure to take appropriate action not be bounded by one year, or can be brought sooner.”) (quoting 11 CHARLES A. WRIGHT ET AL., without a time limitation. See rule 60(b). The FEDERAL PRACTICE AND PROCEDURE § 2866, at 228-29 (2d ed. 1995)).