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United States v. Liquori

*fn* submitted: October 20, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RONALD PETER LIQUORI, SR., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. D.C. No. CR-90-1181-01-JNK. Judith N. Keep, Chief Judge, Presiding

Before: Beezer, Kozinski and Kleinfeld, Circuit Judges.

MEMORANDUM

Ronald Peter Liquori, Sr. appeals pro se the district court's dismissal of his Fed. R. Crim. P. 41(e) motion to return $1,260 in U.S. currency seized pursuant to the search of his son's house. Liquori contends he was deprived of his property as the result of an illegal search and he never received notice of the forfeiture proceedings.*fn1 We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

Here, federal agents executed a search warrant at 8424 Stansbury St., Spring Valley, California, the residence of Liquori's son. Liquori was present during the search, and the agents seized $1,260.00 from Liquori's pockets. An additional $3,650.00 was seized from one of the bedrooms. The Drug Enforcement Agency sent a registered letter containing notice of intended forfeiture of $4,910.00, but it was addressed to Liquori's son and only mailed to the son's residence. The notice of seizure was also published in USA Today for one day, but, again, the notice was directed to Liquori's son. On July 30, 1990, after no response was received from the notices, the funds were administratively forfeited. Meanwhile, Liquori was convicted following jury trial and sentenced to life imprisonment on December 18, 1991.

On September 3, 1992, Liquori filed the motion for return of property. The district court dismissed the motion based upon its determination that it lacked jurisdiction because of the earlier forfeiture proceeding.

We vacate and remand for the district court to construe Liquori's pro se motion for return of property as an action under the Tucker Act and to exercise its jurisdiction to consider the alleged due process violation. See 28 U.S.C. § 1346(a)(2) (district court has original jurisdiction over any civil action against the United States not exceeding $10,000 based upon a violation of the Constitution); see also United States v. Clagett, No. 92-50507, slip op. 9621, 9626 n.4 (9th Cir. Sept. 3, 1993). Because Liquori has this remedy at law, we need not address whether the district court erred by not exercising its equitable jurisdiction.*fn2

VACATED and REMANDED.

Disposition

VACATED and ...


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