USCA1 Opinion

October 11, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1160

UNITED STATES,

Appellee,

v.

BRYON S. MISEPH,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

__________________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

Bryon Miseph on brief pro se.

____________
Donald K. Stern, United States
________________

Attorney, and

C. Jeffrey Kind
_______________

Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
__________

sentenced to

In October 1993, defendant Bryon Miseph was

a combined 100-month prison

term following his

guilty

plea

fourteen

P.

to

cocaine

and

firearms

Nearly

months later, he filed a motion under Fed. R. Crim.

41(e) for the return

been taken from his

that the

items

unrelated

to

firearms that had

residence following his arrest--claiming

had

his

of some eighteen

been unlawfully

criminal

seized

activity.

government stated that, after

parties

offenses.

had been provided and

and

In

had

response,

been

the

notice to all known interested

no claim had

been filed, the

property had been administratively forfeited and subsequently

destroyed.

forfeiture and

court denied

Evidence

attesting

the destruction

to

declaration

was provided.

the motion the following

property was no longer

the

of

The district

day--finding that the

in existence and that, in

any event,

it

had been "lawfully seized

appeals,

claiming

forfeiture.

order,

that

he

and forfeited."

never received

Defendant now

notice

of

the

He notes in this regard that, pursuant to court

he

had been

confined

under "house

arrest"

in his

parents' residence in East Falmouth, Massachusetts during the

relevant period.

The issue before

acknowledges

entertain

that

us is

district

collateral due

forfeitures.

See,
___

a narrow one.

court

has

process attacks

e.g., United States

____ _____________

The

government

jurisdiction

to

on administrative

v. Giraldo, 45
_______

F.3d

509,

511 (1st Cir. 1995)

also

acknowledges that

question here did not

that the

motion could

(per curiam) (listing

the destruction

of the

cases).

It

property in

render such an action moot--suggesting

have

been treated

as an

"equitable

claim for damages," see, e.g., Rufu v. United States, 20 F.3d

___ ____ ____
_____________

63, 65 (2d Cir.

1994); United States v. Martinson,

_____________
_________

809 F.2d

1364, 1366-69 (9th Cir. 1987), and noting that a civil action

for damages would in any event lie, see, e.g., Mora v. United
___ ____ ____
______

States, 955 F.2d 156,

______

v.

Mosquera,
________

curiam).

845

160 (2d Cir. 1992); cf.

___

F.2d

The government

41(e) motion

prejudice

1122,

defendant

Cir.

1988)

simply contends that,

was properly

to

1126 (1st

United States
_____________

denied, we should

filing

(per

as the Rule

affirm without

separate

action

for

appropriate relief.

We

agree.

Defendant

challenge for the

district

abuse

the

court's ruling

To be

district

address

the

raised

first time only on

of discretion

court.

has

obviously

based upon

sure, it might have

court

appeal.

cannot be

due

As

process

such, the

considered an

the record then

before the

been better practice

afforded defendant

government's

his

an

opposition before

opportunity

ruling.

had

to

Yet

defendant (who claims that he first learned of the forfeiture

and

destruction

by

reading

such

opposition)

could

have

presented his due process challenge to the lower court by way

of

a timely motion for reconsideration, but failed to do so.

-3-

Under these circumstances, we

think it appropriate to affirm

the

district

defendant's

court's

assertion

order,

of

albeit

his

independent action under 28 U.S.C.

Affirmed.
_________

due

without prejudice

process

1331.

claim

in

to

an

-4-