FILED

NOT FOR PUBLICATION JAN 31 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVE BENTLEY, a single man and No. 09-16111 THOMAS RAY BENTLEY, a married man, D.C. No. 2:08-cv-01796-ECV

Plaintiffs - Appellants,

MEMORANDUM*

v.

BUREAU OF ALCOHOL, TOBACCO,

FIREARMS, AND EXPLOSIVES, a principal law enforcement agency within the United States Department of Justice; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona Edward C. Voss, Magistrate Judge, Presiding

Argued and Submitted April 14, 2010 San Francisco, California

Before: KLEINFELD and THOMAS, Circuit Judges, and STAFFORD,** Senior District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William H. Stafford Jr., Senior United States District Judge for the Northern District of Florida, sitting by designation. The district court did not abuse its discretion in taking judicial notice of the

state court judgment. Fed. R. Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d

668, 689 (9th Cir. 2001).

Similarly, we now take judicial notice of the Arizona Court of Appeals’

decision affirming Steve Bentley’s criminal conviction for possession of the

weapons. “We may take judicial notice of court filings and other matters of public

record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th

Cir. 2006). The facts as stated therein are dispositive.

The Arizona Court of Appeals’ opinion confirms that Steve Bentley

“admitted having a key to the storage locker on his key ring” and that “the access

code to the storage facility . . . [was] in his wallet.” State v. Bentley, No. 1 CA-CR

09-0260, 2010 WL 2638504, at *1 (Ariz. Ct. App. July 1, 2010). Likewise,

although the initial storage-locker agreement was signed solely by his father,

Thomas Bentley, there was paperwork in Steve Bentley’s automobile “evidencing

that Bentley was vacating [this initial] Unit . . . and transferring the account to Unit

2160. The paperwork identified [Steve] Bentley and his father as [its] authorized

users.” Id. at *2. The key, access code, and paperwork establish that Steve

2 Bentley had access to and constructive possession of the weapons. United States v.

Cousins, 427 F.2d 382, 384 (9th Cir. 1970).

Ordinarily, we must accept a complaint’s factual allegations as true and

construe them in the light most favorable to the plaintiffs for the purposes of

deciding a motion to dismiss. Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir.

2002). “However, we need not accept as true allegations contradicting documents

that are referenced in the complaint or that are properly subject to judicial notice.”

Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). The doctrine of

collateral estoppel bars us from re-litigating the factual dispute of whether Steve

Bentley possessed the weapons. See Reyn’s Pasta Bella, 442 F.3d at 746 (quoting

Kourtis v. Cameron, 419 F.3d 989, 994 (9th Cir. 2005)). The jury found beyond a

reasonable doubt that Steve Bentley, not Thomas Bentley, was in possession of the

forfeited weapons. State v. Bentley, No. 1 CA-CR 09-0260, 2010 WL 2638504, at

*2 (Ariz. Ct. App. July 1, 2010).

Had the weapons been pledged as collateral to secure Thomas Bentley’s loan

to his son, then a possessory lien might compel a different result. See United

States v. Casterline, 103 F.3d 76, 79 (9th Cir. 1996) (“Ownership without physical

3 access to, or dominion and control over, the firearm does not constitute possession.

If the felon owns a firearm, but does not actually possess or have dominion and

control over it, then he does not possess the firearm for purposes of 18 U.S.C. §

922(g).”). The pledgor does not possess the property he pawned, unless and until

the pawnshop releases it. But Steve Bentley retained actual or constructive

possession of the guns.

In light of Steve Bentley’s previous convictions and admissions, he has no

legal right to possess these weapons and they are therefore contraband. 18 U.S.C.

§ 922(g). We decline to accept the Bentleys’ suggestion that the district court must

allow them to amend, because no amendment could save their claim. Steckman v.

Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998).

We also assume, without deciding, that the ATF’s notice to the father,

Thomas Bentley, was constitutionally inadequate. Taylor v. Westly, 488 F.3d

1197, 1201 (9th Cir. 2007). But even if we treated the father as having made a

timely claim against the ATF for the seized weapons, his claim would still fail

because his alleged security interest, perfected neither by recording nor by

possession, would be subordinate to the government’s claim. A.R.S. § 47-9313.

4 Nor can Thomas Bentley fit within 18 U.S.C. § 983(d)’s “innocent owner”

exception, because he had knowledge “of the conduct giving rise to forfeiture”

when he allowed his son to possess or constructively possess the guns. 18 U.S.C. §

983(d)(2)(A)(i).

AFFIRMED.

5

FILED

JAN 31 2011 Page 1 of 5

WILLIAM STAFFORD, District Judge, concurring. MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

While I concur in the result reached by the majority, I write separately to

explain why I think the district court should be affirmed.

On December 29, 2007, the Bureau of Alcohol, Tobacco, Firearms and

Explosives (the "Bureau") seized 79 firearms from a storage room in Gilbert,

Arizona. After receiving notice of administrative forfeiture proceedings against

the seized property, Steve and Thomas Bentley, using the same law firm, filed

separate claims with the Bureau, challenging the forfeiture and seeking return of

the firearms. The Bentleys' claims were denied by the Bureau on the basis that the

claims were not received before the statutory claim period expired. The Bentleys

thereafter filed a complaint in federal district court, alleging that the Bureau failed

to give them proper notice of seizure in violation of their due process rights. The

district court dismissed the action without elaboration. Because our review is de

novo, we can affirm the district court's dismissal on any ground supported by the

record.

The Capital Asset Forfeiture Reform Act of 2000 ("CAFRA"), 18 U.S.C. §

983, sets forth "the exclusive remedy for seeking to set aside a declaration of

forfeiture under a civil forfeiture statute. Id. at § 983(e)(5). That remedy is limited

as follows: Page 2 of 5

(1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person's interest in the property, which motion shall be granted if-

(A) the Government knew, or reasonably should have known, of the moving party's interest and failed to take reasonable steps to provide such party with notice; and

(B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.

18 U.S.C. § 983(e)(1)(A) (emphasis added).

By the statute's terms, relief is available only in instances where the injured

party did not receive adequate notice to challenge the proceeding. It follows that

the court's review is limited to determining whether the government followed

proper procedural safeguards. Consideration of the merits of a non-judicial

forfeiture is beyond the purview of the court's review. See e.g., Mesa Valderrama

v. United States, 417 F.3d 1189, 1196 (11th Cir. 2005) (explaining that, under §

983(e), the court has jurisdiction to review the procedures but not the merits of a

non-judicial forfeiture); United States v. Steven, No. CR 04-00289 WBS, 2009 WL

55919, at 1 (E.D. Cal. Jan. 07, 2009) (same).

The Bentleys maintain that the Bureau failed to provide them with proper

notice of the forfeiture proceeding. To succeed with their claim, they must show Page 3 of 5

not

only that the Bureau failed to take reasonable steps to notify them but also that they

did not know or have reason to know of the seizure within sufficient time to file a

timely claim. United States v. McClendon, 10 Fed. Appx. 341, 344 (7th Cir. 2001)

(unpublished); see also Upshaw v. United States Customs Serv., 153 F. Supp. 2d

46, 51 (D. Mass. 2001) (rejecting argument based on lack of written notice because

the claimant had actual notice of the non-judicial forfeiture proceedings within

sufficient time to submit a timely claim); United States v. $10,000.00 in United

States Currency, No. 06cv2439-L(AJB), 2007 WL 2330318, at *4 (S. D. Cal.

Aug. 13, 2007) (noting that a person with actual notice of the seizure who did not

receive a written notice and did not timely file a claim loses his or her right to set

aside a forfeiture).

18 U.S.C. § 983(a)(2)(B) provides that a person seeking the return of

forfeited property may file a claim “not later than the deadline set forth in a

personal notice letter . . . , except that if that letter is not received, then a claim may

be filed not later than 30 days after the date of final publication of notice of

seizure.” A claim is "filed" when it is received by the seizing agency, not when it

is mailed. United States v. $65,930.00 in U.S. Currency, No. 3:03CV01625

(RNC), 2006 WL 923704, at *2 (D. Conn. Mar. 28, 2006). Page 4 of 5

An exhibit to the Bentleys' complaint reveals that the Bureau published

notice of the seizure in The Wall Street Journal—a newspaper of national

circulation—on January 17, 24, and 31, 2008. Assuming, for the sake of argument,

that the Bureau failed to give both Thomas and Steve Bentley proper written notice

of the forfeiture, the time for filing a claim lapsed on March 1, 2008, thirty days

after final publication in The Wall Street Journal.1 Attachments to their complaint

affirmatively establish that both Bentleys had to have had actual notice of the

seizure no later than Tuesday, February 26, 2008, the day their law firm first wrote

a letter to the Bureau asserting a claim to the seized weapons. Thomas's and

Steve's claims were received by the Bureau on March 4 and 6, 2008, respectively.

Because it is receipt by the Bureau and not posting by the claimants that

determines "filing," the Bentleys' claims were clearly late, even if we assume that

they were entitled to rely on the time-filing period triggered by notice in The Wall

Street Journal.

In sum, I would affirm because the Bureau properly denied the Bentleys'

claims as being untimely filed, and the district court correctly dismissed the

Bentleys' complaint for failure to state a due process claim. See, e.g., Nunley v.

Dep't of Justice, 425 F.3d 1132, 1139 (8th Cir. 2005) (explaining that "a person

1 Because there were 29 days in February in 2008, the thirty-day period following January 31, 2008, ended on March 1, 2008. Page 5 of 5

cannot complain about the constitutionality of the methods used to provide notice

[of forfeiture] when he or she has received actual notice (assuming it is timely), for

he or she has suffered no harm").