Marolf

Opinion by Judge PRO; Concurrence by Judge RYMER.

Gary Marolf appeals the denial of his motion under Federal Rule of Criminal Procedure 41(e) for return of the 1981 AMAL/MANGO 23 dual-masted, 55-foot motor-sailboat “Asmara” or its monetary equivalent. See United States v. Marolf, 973 F.Supp. 1139 (C.D.Cal.1997). We affirm the district court’s conclusion that the administrative forfeiture was constitutionally defective because of lack of notice to Marolf, and therefore hold that the administrative forfeiture is void. Marolf is thus entitled to his property unless the government may still initiate forfeiture proceedings. In this case, it may not because the five-year statute of limitations for doing so has run. See 19 U.S.C. § 1621 . 1 The district court properly considered the application of laches to Marolfs action, and did not abuse its discretion in concluding that laches was inapplicable in this case. As there are no other grounds to excuse the government’s failure to perfect the forfeiture within the statute of limitations period, we reverse the district court’s adjudication of the forfeiture action and remand for a determination of the sum due Marolf.

BACKGROUND

On July…

concurring:

I agree that the judgment must be reversed, but write separately to explain why the five-year statute of limitations that applies to government forfeiture proceedings is relevant to Marolf s action.

Marolf was entitled to notice so that he could timely file a claim and have a hearing on probable cause and ownership. Because he did not get proper notice, he was deprived of that opportunity. For this reason, the forfeiture is void and cannot stand. See Clymore v. United States, 164 F.3d 569, 573 (10th Cir.1999) (voiding defectively-noticed forfeiture); Muhammed v. DEA, Asset Forfeiture Unit, 92 F.3d 648, 654 (8th Cir.1996) (same); Barrera-Montenegro v. United States, 74 F.3d 657, 661 (5th Cir.1996) (same). Nevertheless, the government could go back to square one by providing proper notice and recommencing forfeiture proceedings-so long as it does so within the statutory period. Under these circumstances, a court could well do equity by going directly to the merits and holding the hearing to which the claimant would have been entitled had notice been properly given to begin with. The problem in this case is that the period of limitations has passed. As Marolf argues,…