United States of America v. Booker T. Duke

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1323
United States of America,
Plaintiff-Appellee,
v.
Booker T. Duke,
Defendant-Appellant,
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 92-134-CR-01-D/F--S. Hugh Dillin, Judge.
Submitted August 22, 2000--Decided October 12, 2000
Before Bauer, Posner, and Manion, Circuit Judges.
Posner, Circuit Judge. Duke appeals from the
denial of his motion under Fed. R. Crim. P. 41(e)
for the return of currency, vehicles, and parcels
of real property that had been forfeited as an
incident to criminal proceedings brought against
him in the early 1990s. The real estate had been
forfeited pursuant to a default judgment entered
after Duke, though he had been served with
process, failed to respond to the government’s
complaint or file a claim of ownership of the
property. As a result, he never became a party to
the forfeiture action, United States v. 8136 S.
Dobson Street, 125 F.3d 1076, 1082 (7th Cir.
1997), and so has no standing to seek relief from
the judgment under Fed. R. Civ. P. 60(b), the
only available route, since Fed. R. Crim. P.
41(e) is inapplicable to civil forfeitures. Fed.
R. Crim. P. 54(b)(5).
Some of the property, though, was forfeited in
administrative proceedings, and this presents a
more interesting question. Most of it had been
seized pursuant to a search warrant executed
before Duke’s criminal trial. After the trial, in
which Duke was convicted, the DEA ordered the
property forfeited. That was back in September of
1993 and it was not until October of last year,
more than six years after the forfeiture, that
Duke filed his motion under Rule 41(e) for the
return of the property on the ground of

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irregularities in the forfeiture proceeding. The
district court ruled that the motion was
untimely.
Although Congress has now fixed a five-year
statute of limitations for challenges to
administrative forfeitures, 18 U.S.C. sec.
983(e)(3), this new provision is limited to
proceedings begun on or after August 23, 2000,
Civil Asset Forfeiture Reform Act of 2000, Pub.
L. 106-185, sec. 21; there is no congressional
statute of limitations expressly applicable to
earlier administrative forfeitures. For that
matter, it is not even clear what the
jurisdictional basis is for a challenge to such a
forfeiture, since, if it is deemed civil, it is
taken out from under Fed. R. Crim. P. 41(e) by
Rule 54(b)(5). We have held that the correct
jurisdictional basis is 28 U.S.C. sec. 1331, the
general federal-question statute, Willis v.
United States, 787 F.2d 1089, 1093 (7th Cir.
1986), and the other circuits to have addressed
the issue agree. E.g., United States v. Giraldo,
45 F.3d 509, 511 (1st Cir. 1995). It is true that
if Duke were contending that the government had
confiscated his property in violation of the
just-compensation clause of the Fifth Amendment,
the district court would have jurisdiction only
if he were seeking no more than $10,000 in
compensation. 28 U.S.C. sec. 1346(a)(2). That
statute would also provide the jurisdictional
basis for his suit if it were one to quiet title
to the real estate that the government seized.
See 28 U.S.C. sec. 1346(f). But it seems that
he’s seeking merely to replevy the property,
without making a constitutional or other claim
encompassed by section 1346(a)(2) and without
seeking a determination of title--though if he
were seeking such a determination, the statute of
limitations would be twelve years, albeit only
with respect to his claim for the real estate.
See 28 U.S.C. sec. 2409a(g).
This romp through Title 28 has not revealed an
applicable statute of limitations, and in such
cases we are told to borrow a limitations period
from the federal or state statute that is most
like the statute or common law doctrine under
which the plaintiff is proceeding. We agree with
Polanco v. DEA, 158 F.3d 647, 652-54 (2d Cir.
1998), that the closest analogy is a civil suit
challenging federal administrative action. Duke’s
claim for the return of his property is civil in
character and he is challenging a federal
administrative action, namely the action of the
DEA in declaring the property forfeited to the
United States. Civil suits challenging federal
administrative action are subject to a six-year
statute of limitations. 28 U.S.C. sec. 2401(a).

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But we must decide when the six years started to
run. Duke argues that he didn’t know that his
property had been forfeited in September 1993
because he had not been given the notice of
forfeiture required by 19 U.S.C. sec. 1607(a).
The record is silent on whether he had been given
the statutory notice; but even if he hadn’t been,
the suit would be untimely. The federal common
law rule on when a statute of limitations begins
to run is that it is when the plaintiff
discovers, or by exercise of due diligence would
have discovered, that he has been injured and who
caused the injury. E.g., United States v.
Kubrick, 444 U.S. 111, 120-21 (1979); Fries v.
Chicago & Northwestern Transportation Co., 909
F.2d 1092, 1095 (7th Cir. 1990); Oshiver v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1386 (3d Cir. 1994). When the only question is
when the injury was discovered, however, it is
usually enough just to ask when the plaintiff
discovered it, not when he should have discovered
it, e.g., Goodhand v. United States, 40 F.3d 209,
212 (7th Cir. 1994); Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 450 (7th Cir. 1990); Union
Pacific R.R. v. Beckham, 138 F.3d 325, 330 (8th
Cir. 1998); Sprint Communications Co. v. FCC, 76
F.3d 1221, 1226 (D.C. Cir. 1996), as the category
of injuries of which people culpably are unaware
is small. The duty of diligence generally comes
into play only when the issue is when the
plaintiff learned or should be penalized for
having failed to learn that the defendant was the
source of the injury. To know you’ve been injured
and make no effort to find out by whom is laxity
that must be penalized in order to secure the
objectives of statutes of limitations.
This, however, turns out to be the unusual,
though not unprecedented, case in which the
plaintiff was culpable for failing to discover
that he had been injured. See Sellars v. Perry,
80 F.3d 243, 246 (7th Cir. 1996); Cathedral of
Joy Baptist Church v. Village of Hazel Crest, 22
F.3d 713, 718-19 (7th Cir. 1994); Rotella v.
Pederson, 144 F.3d 892, 896 (5th Cir. 1998). Duke
was injured when the forfeiture took place, and
so the only question is when he should be charged
with discovery of it. The property in question
had been seized before trial pursuant to a search
warrant. The government regarded the property as
proceeds and instrumentalities of crime, as Duke
well knew, and thus as forfeitable. Having been
convicted at trial, he could hardly have expected
the property to be returned to him, see Williams
v. DEA, 51 F.3d 732, 736 (7th Cir. 1995), but in
any event the record is replete with evidence
that he knew long before September 1993 that the
government meant to keep the property. The
discovery rule does not permit the victim of an
alleged wrong to postpone the running of the

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statute of limitations by willfully closing his
eyes, ostrich-like, to a known probability that
he has been injured, even if he is not certain. A
plaintiff who either knew that he was injured or
should have known is deemed to have "discovered"
the injury for purposes of the statute of
limitations.
For completeness we note that even though the
statute of limitations began to run in September
1993, its running might have been arrested by the
doctrine of equitable tolling had Duke through no
fault of his own been unable to sue within six
years. E.g., Taliani v. Chrans, 189 F.3d 597,
597-98 (7th Cir. 1999); Chapple v. National
Starch & Chemical Co., 178 F.3d 501, 505-06 (7th
Cir. 1999); Santa Maria v. Pacific Bell, 202 F.3d
1170, 1178 (9th Cir. 2000); Shisler v. United
States, 199 F.3d 848, 851-52 (6th Cir. 1999). It
would have been arrested for as long as (though
no longer than) he would have required in the
exercise of due diligence to file his suit. Duke
alludes to the doctrine but cannot argue with a
straight face that it took him more than six
years to find out that his property had been
forfeited. He failed to display the diligence
that the doctrine of equitable tolling requires
of those who would use it to extend the statute
of limitations. E.g., Elmore v. Henderson, No.
99-3783, 2000 WL 1297714, at *4 (7th Cir. Sept.
14, 2000); Warren v. Garvin, 219 F.3d 111, 113-14
(2d Cir. 2000); Graham-Humphreys v. Memphis
Brooks Museum of Art, Inc., 209 F.3d 552, 562
(6th Cir. 2000).
Affirmed.

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