IN THE MATTER OF PROPERTY SEIZED FOR FORFEITURE FROM DUANE A. LOVELACE, DUANE A. LOVELACE, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-107 / 08-0947
Filed May 29, 2009
IN THE MATTER OF PROPERTY SEIZED
FOR FORFEITURE FROM DUANE A. LOVELACE,
DUANE A. LOVELACE,
Appellant.
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Appeal from the Iowa District Court for Pottawattamie County, Charles L.
Smith, Judge.
Claimant appeals the district court’s order denying his request to return
seized funds and his request for sanctions against the Pottawattamie County
Attorney’s office. REVERSED AND REMANDED.
Patrick Sondag, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Matthew D. Wilber, County Attorney, and Margaret Popp Reyes and
Shelly Sedlack, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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VOGEL, P.J.
Claimant Duane Lovelace appeals the district court’s order denying (1) his
request to order the return of funds seized; and (2) his request for sanctions
against the Pottawattamie County Attorney’s office. We reverse and remand.
I. Background Facts and Proceedings
On July 2, 2007, claimant’s vehicle was stopped by a deputy of the
Pottawattamie County’s Sheriff’s office. During the stop, marijuana and heroin
were discovered and $22,600 in cash was seized. That same date, a notice of
seizure was given to claimant pursuant to Iowa Code section 809A.6(2) (2007),
containing the information required under section 809A.6(5).
On July 26, a
“Notice of Seizure for Forfeiture under Iowa Law” was filed and service was
accomplished by publication on August 15.
But see Iowa Code § 809A.8
(requiring the prosecuting attorney to file a “notice of pending forfeiture” within
ninety days of the seizure and detailing the content of the notice).
On October 3, claimant’s attorney hand delivered a letter to an assistant
county attorney, requesting the seized cash be returned to claimant. The next
day, October 4, the district court approved the assistant county attorney’s ex
parte application for forfeiture and ordered the property forfeited to the State of
Iowa. On October 10, a “Motion to Vacate Forfeiture Order and for Return of
Property and for Other Relief” was filed by claimant. After the county attorney’s
office contacted federal authorities, on November 28, the Office of the United
States’ Attorney filed a warrant for arrest in rem for the seized property; it was
then under indictment.
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On November 29, claimant filed a “Motion for Immediate Injunctive or
Other Extraordinary Relief,” asserting the involvement of the federal authorities
was undertaken to circumvent the district court’s jurisdiction. That same day, a
hearing was held and the district court ordered the State of Iowa to retain the
funds until further order of the court.
On December 3, the court vacated the October 4 order and ordered the
return of the seized property, after finding the proper forfeiture procedure had not
been followed by the county attorney’s office. The claimant then filed a bill of
exceptions as to the November 29 hearing as well as a “Motion for Expanded
Findings and Relief,” seeking findings that sanctions were warranted and
requesting a hearing as to the nature and extent of such sanctions against “the
State and/or prosecutor.” A hearing was held on February 29, 2008.
In its
subsequent ruling, the district court found the county attorney’s office “did a
terrible job in attending to the necessary documents needed to successfully
forfeit the funds,” but that nothing prevented the county attorney’s office from
notifying the federal authorities of the seizure, should they be interested in
pursuing their own forfeiture proceedings. It further found no basis for sanctions,
concluding the prosecutors were “certainly guilty of neglect but not deception.”
Claimant appeals.
The State through the attorney general’s office,
responds to the issue regarding the request for return of the seized property.1
The County responds as to the sanctions issue.
1
As the federal authorities took control over the funds, the Claimant requests he be
given substituted funds.
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II. Scope of Review
We review forfeiture proceedings for correction of errors at law.
In re
Property Seized For Forfeiture From Williams, 676 N.W.2d 607, 612 (Iowa 2004).
We review an order denying sanctions for an abuse of discretion. Schettler v.
Iowa Dist. Ct., 509 N.W.2d 459, 464 (Iowa 1993).
III. Right to the Seized Property
Claimant first argues the substituted funds should be returned to him as
the forfeiture was defective as detailed in the district court’s December 3, 2007
order:
A forfeiture order was entered on October 4, 2007; however, the
notice required by Section 809A.8 was defective in that there was
no notice of pending forfeiture . . . . The Court finds that the
forfeiture order was therefore defective as the proper notice was
not and has not yet been given. The Court further finds that there
is nothing in the “Notice of Seizure” that indicates the reason for the
forfeiture. The Court further finds that there is no showing that
notice of this “Notice of Seizure” was given to Mr. Lovelace.
The State asserts claimant was put on notice of the forfeiture proceedings, albeit
conceding the “Notice of Forfeiture Proceedings” was miscaptioned and did not
allege the reasons for the seizure. It further argues claimant did not file a timely
demand for return of the property under section 809A.11.
Forfeitures are not favored under the law and we strictly construe statutes
allowing forfeiture. Property Seized For Forfeiture From Williams, 676 N.W.2d at
612. In this instance we echo the sentiments of the district court that the county
attorney’s office failed in its duty of tending to the required details of the forfeiture
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proceeding. However, we look to a significant flaw in the prosecutor’s handling
of the case which causes us to reverse the district court.
The “notice of seizure” stated the property was seized on July 2, 2007.
Therefore, under Iowa Code section 809A.8(1)(a)(1), the property shall be
released upon request of the owner if the prosecuting attorney has not filed a
“notice of pending forfeiture” within ninety days of the seizure. That time ran on
October 1, 2007. On October 3, claimant’s attorney hand delivered a letter to an
assistant county attorney, requesting release of the property, noting the flaws in
the prosecutor’s handling of the seized funds, and referenced the appropriate
code sections. See Iowa Code § 809A.8(1). In spite of that request, the very
next day, the prosecutor, ex parte, presented the district court this order:
The Court has examined the prosecuting attorney’s application[2]
for declaration of forfeiture and the accompanying documents and
finds that proper notice has been given, the Court has jurisdiction
and that facts recited provide probable cause for forfeiture all as
required by 809A.16(3) of the Code. The Court approves the
application and orders: The following property is forfeited . . . .
When notified of the signed order on October 10, claimant’s counsel filed a
motion to vacate. By the time the November 29 order was entered to temporarily
enjoin release of the funds, the federal authorities had already been alerted and
on November 28 had filed a Warrant for Arrest in Rem.
Claimant asserts and we agree, had claimant’s counsel been alerted to
the prosecutor’s presentation to the court of the October 4 ex parte order, the
court would have been informed of the irregularities in the proceedings and come
to the same conclusion it did in the December 3 order: “No forfeiture in fact ever
2
No written application appears in the record on appeal.
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occurred.” Because no forfeiture in fact occurred and the funds should have
been returned to claimant prior to the county attorney contacting federal
authorities, we reverse and remand for entry of an order returning $22,600, in
substituted funds, to claimant.
IV. Sanctions
In denying sanctions, the district court found, “There is nothing to show
that the State of Iowa tried to deceive the Court or Mr. Lovelace.” The record,
however, strongly suggests otherwise. The assistant county attorney personally
received a letter from claimant’s counsel outlining the statutory flaws in the
prosecutor’s pursuit of the forfeiture proceedings and making a demand for the
return of the property.
In spite of that specific information and knowledge
claimant was represented by counsel, the assistant county attorney sought and
obtained, the very next day, an ex parte order asserting to the court full
compliance with the appropriate forfeiture statutes.
Such action exceeds “neglect.” The district court, at the February 29,
2008 hearing, expressed dismay with the representations of the county attorney’s
office, but apparently concluded that there was no problem with that office
contacting the federal authorities should they wish to proceed against the
property. Lost in that analysis was the timing. The assistant county attorney
presented the ex parte order to the court the day after being informed by
claimant’s counsel of its procedural errors.
As discussed above, the federal
authorities were not contacted until after the motion to vacate had been filed, a
motion which would have been unnecessary had the assistant county attorney
not proceeded to secure an order ex parte. As the county attorney’s office had
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been alerted by claimant’s counsel as to the missteps in the forfeiture
proceedings, but chose to proceed presenting a seriously flawed ex parte order
to the court, sanctions are warranted under Iowa Rules of Civil Procedure
1.413(1).
We therefore reverse the district court and remand for entry of an order
returning to claimant $22,600 in substituted funds. The district court shall also
hold a hearing to determine a reasonable amount of attorney fees, expenses,
and costs to be awarded claimant by the County. Costs on appeal are assessed
to the County.
REVERSED AND REMANDED.
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