IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 99-50860

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CRAIG CLYMORE, AKA CLIFF G. WILSON,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court for the Western District of Texas _____________________

ON PANEL REHEARING _____________________ August 24, 2000

Before WIENER and STEWART, Circuit Judges, and ROSENTHAL, District

Judge*

WIENER, Circuit Judge:

We have granted panel rehearing in this case sua sponte and

now withdraw Parts IV and V of the original panel opinion,

(5th Cir. 2000), and substitute in their place the following:

IV.

REMEDY

The government is required by statute to initiate forfeiture

* District Judge of the Southern District of Texas, sitting by designation. proceedings within five years after it learns of the offense giving

rise to the forfeiture.32 In this case, it is undisputed that more

than five years have passed since the government learned that

Clymore’s truck was being used to smuggle marijuana. Therefore,

unless the statute of limitations running against the government

has been tolled for some reason, the government cannot now cause

Clymore’s property to be forfeited.

The Circuits are split on the proper remedy when there are

allegations that an administrative forfeiture was effected without

notice to the property owner, and the challenge to the forfeiture

proceeding is brought more than five years after the government

learns of the offense. Both the Ninth and Tenth Circuits have held

that the inadequately-noticed forfeiture is void —— that is, the

forfeiture should be vacated and the statute of limitations should

be allowed to run against the government, subject to any

affirmative defenses available to the government against the

running of the statute of limitations (e.g., laches, equitable

tolling).33 The Ninth Circuit reasoned that it is “particularly

weary of civil forfeiture statutes, for they impose ‘quasi-

criminal’ penalties without affording property owners all of the

32

. 33 See United States v. Marolf,

(9th Cir. 1999); Clymore v. United States,

(10th Cir. 1999).

2 procedural protections afforded criminal defendants.”34 In a

similar vein, the Tenth circuit reasoned that “[d]ue process

protections ought to be diligently enforced, and by no means

relaxed, where a party seeks the disfavored remedy of forfeiture.”35

The Second and Sixth Circuits have held, less stringently,

that a deficient forfeiture is merely voidable —— in other words,

that the proper remedy is to restore the plaintiff’s right to

challenge the forfeiture in the district court. In United States

v. Dusenbery,36 the Sixth Circuit explained that treating the prior

forfeiture proceeding as voidable, not void, simply “restore[s] the

right which a timely Rule 41(e) notice would have conferred on the

[property owner],” i.e., “the right to judicially contest the

forfeiture and to put the Government to its proofs under a probable

cause standard.”37

We recently faced this precise issue in Kadonsky v. United

States.38 There we followed the position announced by the Ninth and

Tenth Circuits and held that “a forfeiture accomplished without

34 Marolf,

(quoting United States v. $191,910.00 in U.S. Currency,

(9th Cir. 1994)). 35 Clymore,

. 36

(6th Cir. 1999). 37

. See also Boreo v. Drug Enforcement Admin.,

(2d Cir. 1997). 38

(5th Cir. 2000).

3 adequate notice is void and must be vacated.”39 We explained

further that “the remedy for constitutionally insufficient notice

in forfeiture proceedings is to void and vacate the original

proceeding,”40 and to allow “[the statute of] limitations [to] bar

consideration of the government’s forfeiture claim on the merits

unless the government provides a rationale to equitably toll or

otherwise not apply the statute.”41 We now follow the precedent

announced in Kadonsky and hold that the forfeiture in this case is

void.

The government argues that if we decide, as we have, that its

prior forfeiture proceeding is void, we should nevertheless allow

it to commence a new forfeiture proceeding pursuant to the doctrine

of laches. For the reasons set forth in Part III of this opinion,

however, the doctrine of laches is not available to the government

in this case. The government advances no alternative argument in

support of a tolling of the statute of limitations and,

consequently, we conclude that the government is time-barred from

commencing a new forfeiture proceeding at this juncture.

Clymore urges that in addition to the return of the his pickup

truck’s fair market value, he is entitled to interest. The

government did not address this issue on appeal. We remand the

39 Kadonsky,

. 40

. 41

4 case with instructions that the district court consider whether

Clymore is entitled to recover interest in addition to the return

of the value of his pickup truck, and to enter the judgment,

accordingly.

V.

CONCLUSION

For the foregoing reasons the judgment of the district court

is reversed, and the case remanded for consideration of Clymore’s

claim for interest.

REVERSED and REMANDED with instructions.

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