United States v. Eight Thousand Eight Hundred Fifty Dollars ($8,850.00) in United States Currency, Mary Josephine Vasquez, Claimant-Appellant

645 F.2d 836 UNITED STATES of America, Plaintiff-Appellee, v. EIGHT THOUSAND EIGHT HUNDRED FIFTY DOLLARS ($8,850.00) IN UNITED STATES CURRENCY, Defendant, Mary Josephine Vasquez, Claimant-Appellant. No. 78-2066. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 2, 1980. Decided May 22, 1981. Paul L. Gabbert, Los Angeles, Cal., for claimant-appellant; Victor Sherman, Los Angeles, Cal., on brief. Charles W. Kircher, Jr., Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before CHOY and ALARCON, Circuit Judges, and SOLOMON, * District Judge. CHOY, Circuit Judge: I. Introduction 1 Claimant Mary Josephine Vasquez (Vasquez) appeals from a judgment forfeiting $8,850 in United States currency which she failed to declare when she entered the United States. We find that the Government unjustifiably delayed institution of forfeiture proceedings in violation of Vasquez's due process right. Accordingly, we reverse the judgment of forfeiture. II. Facts 2 On September 10, 1975, Vasquez flew from Canada to Los Angeles, California. Her customs declaration stated that she was not…

dissenting:

I respectfully dissent.

My colleagues have overruled Ivers v. United States, 581 F.2d 1362 (9th Cir. 1978), sub silentio without a decent or public burial.

Until today the law of this circuit has been that prejudice is a necessary element of a procedural due process claim based on delay. Just two years ago, this court stated, in summarizing its reasons for affirming a judgment forfeiting currency seized by the government,

Three years ago, this court at least implicitly recognized that a showing of prejudice is essential to a claim of violation of procedural due process in the following comment: “Because of the fast depreciating nature of an automobile, the Government’s claim that no prejudice to the claimant resulted from the untimeliness of the Government’s action is clearly without merit.” United States v. One 1970 Ford Pickup Serial No. F10YRG53615, 564 F.2d 864, 866 (9th Cir. 1977).

Appellant presented no evidence that the delay bringing the forfeiture proceedings to trial in any way interfered with the presentation of her defense in the forfeiture proceedings. Instead we are told in her brief that, “[fjinally, there can be no question that appellant was…

I. Introduction

Claimant Mary Josephine Vasquez (Vasquez) appeals from a judgment forfeiting $8,850 in United States currency which she failed to declare when she entered the United States. We find that the Government unjustifiably delayed institution of forfeiture proceedings in violation of Vasquez’s due process right. Accordingly, we reverse the judgment of forfeiture.

II. Facts

On September 10, 1975, Vasquez flew from Canada to Los Angeles, California. Her customs declaration stated that she was not carrying more than $5,000 in currency and she repeated this statement to a customs inspector. During a pat-down, an inspector found and seized $8,850 that Vasquez had concealed.

On September 25, 1975, Vasquez filed a petition for remission or mitigation of forfeiture. In October 1975, the petition was referred to the Office of Investigation of Customs and its investigation was assigned to Special Agent Janet Pompeo (Pompeo). Pompeo believed a criminal indictment might be warranted and in early November

1975, she opened a criminal file.

On November 13, 1975, Pompeo spoke to Vasquez’s attorney, Victor Sherman (Sherman), and attempted to arrange an interview with Vasquez in San…