United States v. Molina-Escobar

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-21007
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANCISCO ALBERTO MOLINA-ESCOBAR,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-91-CR-151-2)
_________________________
August 14, 2000
Before SMITH and DENNIS, Circuit
Judges, and HARMON, District Judge.*
PER CURIAM:**
Francisco Molina-Escobar (“Molina”) ap-
peals the denial of a request for return of cur-
rency.” Construing his pro se petition as a
FED. R. CIV. P. 60(b) motion, and finding no
error, we affirm.
* District Judge of the Southern District of
Texas, sitting by designation.
** Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
(continued...)
**(...continued)
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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2
I.
At Molina’s arrest for conspiracy to possess
with intent to distribute cocaine, the
government seized $19,001. Molina pleaded
guilty, and the court entered a judgment of
conviction in April 1992. In 1994, Molina
filed a “Motion for Return of Seized
Property,” purportedly pursuant to FED. R.
CRIM. P. 41(e). The court denied the motion,
finding t hat the money had been
administratively forfeited following notice to
Molina and his attorney.
In June 1999, Molina filed a “Petition for
Return of U.S. Currency” on the ground that
the government had failed to give him notice
of the forfeiture. Because the court had
previously decided this issue, it denied the
petition, holding that the proper means for
contesting the denial would have been by an
appeal.
II.
Once a criminal proceeding has ended, rule
41(e) is not the appropriate vehicle to obtain
allegedly improperly forfeited property. See
United States v. Robinson, 78 F.3d 172, 174
(5th Cir. 1996). Because, however, pro se
pleadings are liberally construed as seeking the
proper remedy, Molina’s original motion is
treated as a civil complaint, and the denial of
that motion as a summary judgment. See id.
Although it is not evident under what authority
Molina brings the current petition, we once
again construe his pro se pleadings as seeking
the pro per remedy, namely a FED. R. CIV. P.
60(b) motion for relief from judgment.
Depending on the asserted ground for re-
lief, a rule 60(b) motion must either be made
within a “reasonable time,” which may or may
not be bounded by one year, or can be brought
without a time limitation. See rule 60(b). The
limitation is inapplicable only when the movant
asserts that the judgment is void under rule
60(b)(4), which occurs only if the rendering
court lacked jurisdiction of the subject matter
or of the parties, or if it acted in a manner
inconsistent with due process. See New York
Life Ins. Co. v. Brown, 84 F.3d 137, 142-43
(5th Cir. 1996). Although Molina does not
contest jurisdiction, we note that district
courts have jurisdiction over collateral attacks
on administrative forfeitures. See United
States v. Arreola-Ramos, 60 F.3d 188, 191
(5th Cir. 1995).1 Molina does not claim that
the court denied him due process.
Not only does Molina fail to demonstrate
that the summary judgment was error, but his
rule 60(b) request that the court reconsider the
lack-of-notice argument was not filed within a
reasonable timeSSno reason justifies a lapse of
five years before reasserting identical
arguments.2
AFFIRMED.
1 Although there is disagreement over the basis
for this jurisdiction, the federal circuits agree that
it exists: “[T]he federal courts have universally
upheld jurisdiction to review whether an
administrative forfeiture satisfied statutory and due
process requirements.” United States v. Woodall,
12 F.3d 791, 793 (8th Cir. 1993).
2 See Lairsey v. Advance Abrasives Co., 542
F.2d 928, 930 (5th Cir. 1976) (“‘What constitutes
reasonable time must of necessity depend upon the
facts in each individual case.’ The courts consider
whether the party opposing the motion has been
prejudiced by the delay in seeking relief and they
consider whether the moving party had some good
reason for his failure to take appropriate action
sooner.”) (quoting 11 CHARLES A. WRIGHT ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 2866,
at 228-29 (2d ed. 1995)).

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