http://www.pasadenastarnews.com/Stories/0,1002,542%7E346989%7E53%7E,00.html
PASADENA -- The government has been ordered to pay $400,000 to a convicted marijuana smuggler because it didn't properly notify him it had seized the boat he used for smuggling.
After hearing appeals in Pasadena, the court ruled the Drug Enforcement Agency must pay $254,000 -- the market value of the 55-foot motorized sailboat -- to Gary H. Marolf, who was sentenced to 10 years for smuggling marijuana from Thailand.
In a second and even more unusual ruling handed down Thursday, the court also ordered the government to pay attorney's fees, which Marolf's attorney estimates at $150,000.
Ironically, the government sold the boat at auction for just $100,000.
The boat, named the Asmara, is now owned by retired JPL scientist Paul Swanson, said Marolf's attorney, Shawn R. Perez.
"I held them to the letter of the law," Perez said. "This shows it doesn't matter who the litigants are. We should all be treated equally."
The U.S. Attorney's Office did not have a comment on the 2-1 attorney-fee decision, reached by circuit Judges James R. Browning and Raymond C. Fisher after an Oct. 17 hearing in Pasadena.
But dissenting Judge Ferdinand F. Fernandez wrote a lengthy opposition, saying it was "quite enough ... (that) a drug smuggler gets $253,763.60 of his drug-related assets free and clear" simply because the government failed to file a forfeiture notice with Marolf within the five-year statute of limitations.
"It is more than enough," he added, "to award him attorney's fees also, despite the fact that the government perpetrated no actual wrong upon him when it seized the Asmara and then failed to commence proper proceedings within five years."
He pointed out that Marolf lost the boat when he used it for smuggling and wasn't entitled to its return.
But Browning and Fisher found that the district court, out of sympathy for the government's position, "abused its discretion" by not awarding attorney fees once it found the government had erred.
The DEA seized the Asmara July 12, 1991, and arrested Marolf two months later for conspiracy to import marijuana into the United States.
The DEA sent the proper seizure letters to Marolf's co-defendant, Larry Morgan, but not to Marolf.
On Dec. 10, 1991, the DEA learned that Marolf was the actual owner, but it still neglected to file seizure papers against him, the court noted.
On March 23, 1992, Marolf pleaded guilty to importing about 900 kilograms of marijuana and was sentenced to 10 years in prison.
Three years later, Marolf challenged his conviction as double jeopardy, saying the Asmara was improperly seized. At that time, the government still had 14 months to file notice of the Asmara's forfeiture.
The courts denied the motion, but noted Marolf could challenge the Asmara's seizure.
The 9th Circuit reinforced that decision July 9, 1996. The government still had two days to file the necessary papers against Marolf. But it did nothing.
"I kept telling them they needed to file," Perez said. "They didn't listen."
He said it's routine for the government to neglect the rules when seizing items from people like drug smugglers, who typically lack the resources to fight back. Rulings like Thursday's are therefore extremely rare.
"This is a fluke," Perez said. "It doesn't always work that way."
-- Howard Breuer can be reached at (626) 578-6300, Ext. 4444, or by e-mail at howard.breuer at sgvn.com.
===== Kevin Dean Buffalo, NY ICQ: 8616001 http://www.yaysoft.com
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