Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

MEMORANDUM^** 

Federal prisoner Kenneth Linn appeals the civil judgment forfeiting his automobile to the U.S. Government following its seizure at the time of his arrest for conspiring to distribute cocaine. Appellant argues that the forfeiture was improper because the government lacked probable cause for the seizure, as well as insufficient nexus between the car and the crime. However, it is clear from the facts of appellant's criminal case, see U.S. v. Linn, 880 F.2d 209 (9th Cir. 1989), that he used his auto in order to facilitate a drug transaction. This fact in itself establishes the auto's eligibility for forfeiture, under 21 U.S.C. § 881(a) (4). Claimant's argument that forfeiture in this case violated the Eighth Amendment is foreclosed by United States v. Tax Lot 1500, 861 F.2d 232, 235 (9th Cir. 1988), holding the Eighth Amendment inapplicable in civil forfeiture proceedings.

Claimant also argues that Supplementary Rule of Admiralty "C," 19 U.S.C. §§ 1600-1619, 21 U.S.C. § 881(a) (6), 21 U.S.C. § 881(b) and 21 C.F.R. Sec. 1316.76 all facially violate the Fourth and Fifth Amendments to the Constitution, and are unconstitutional as applied to the claimant in this case. Linn's arguments for the facial unconstitutionality of these laws and regulations are not persuasive. Similarly, the circumstances of the seizure in this case suggest that these laws and regulations were not applied in an unconstitutional fashion.

Next, appellant argues that the forfeiture complaint does not satisfy the particularity requirement because it fails to cite how the auto facilitated a crime. Claimant's brief at 23. The complaint in fact did make this allegation in a way which allowed claimant to frame a responsive pleading. The complaint cites the dates of the alleged criminal activity, the alleged statutory violations, and relationship of the auto to these violations. (CR 1, at 1-2). We hold that the complaint did satisfy the particularity requirement.

Finally, appellant argues that he should have been granted additional discovery. However, claimant served three rounds of discovery requests to the government, and has failed to specify why additional discovery was necessary.

We decline to reach two issues raised by appellant. First, we decline to reach the issue of whether the DEA had "reasonable cause" to seize appellant's watch and chain, since the district court never ruled on this issue, but rather only dismissed the forfeiture case against those items. Second, we refuse to consider appellant's invitation to extend the rule of Houston v. Lack, 487 U.S. 266 (1988), which holds that a prisoner's filing of a notice of appeal from a denial of his habeas corpus petition is timely upon its delivery to prison authorities, to include all pro se prisoner pleadings. Appellant has not demonstrated any prejudice from the one episode in which a late filing may have been caused by a delay in the prison outgoing mail system.

Thus, we AFFIRM the district court's summary judgment forfeiting appellant's auto.