United States v. An Article of Device "Theramatic," Etc., and Ralph B. Cloward, Claimant-Appellant

Cloward, a Honolulu neurosurgeon, seeks the return of a diathermy machine seized by the government as “misbranded” within the meaning of section 304(a) of the Food, Drug, and Cosmetic Act (the Act), 21 U.S.C. § 334 (a). The seizure was conducted pursuant to 21 U.S.C. § 334 (b), which directs that the procedures for seizure under the Act “shall conform, as nearly as may be, to the procedure in admiralty,” and rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims, Fed.R.Civ.P.Supp. Rule C. When this case was before us on a prior appeal, we held that the seizure of the device in Cloward’s office violated the fourth amendment and we reversed the district court decision in favor of the government. United States v. Device Labeled “Theramatic”, 641 F.2d 1289 (9th Cir.1981). On remand, the district court granted the government’s motion for summary judgment and again ordered destruction of the device. On this appeal, Cloward contends that the district court lacked jurisdiction, that insufficient untainted evidence existed to support the finding of forfeiture, and that the seizure provisions under rule C violate the due process clause of the fifth amendment. We…