 NEWS FROM THE COURTS
Rivera v. Meza, Seventh Circuit
In this case, the court reversed the finding of a lower court that it lacked jurisdiction over a court action contesting a forfeiture.
In June 1997, INS and Secret Service agents entered the apartment of Galilia Rivera and her husband. The agents proceeded to search the apartment without a warrant. The search was part of a large investigation into the manufacture and distribution of counterfeit immigration documents. During the search, the agents found ,700 in case, as well as a few counterfeit documents, which were seized. That night, Rivera’s husband called the INS trying to get the money back. They were not able to, and so filed suit against the INS agent involved in the search in state court seeking the return of the money. The government moved to dismiss the case on the basis that Rivera had failed to exhaust her administrative remedies. The court agreed and dismissed the case. Rivera then filed a claim against the INS under the Federal Tort Claims Act. Meanwhile, the government was pursuing the forfeiture of the money. The notice of forfeiture that was issued to Rivera was not delivered, and the money was forfeited. At no point was Rivera ever charged with any criminal activities.
Rivera then filed another suit, this time in federal court, challenging the forfeiture order. The government argued that the final forfeiture meant that the court did not have jurisdiction. The court agreed, and dismissed the case. Rivera then appealed to the Seventh Circuit.
If a forfeiture action proceeds in accordance with the law, it is not reviewable by a federal court. Part of this is the requirement that the person whose property is to be forfeited receive proper notice of the forfeiture action. The issue for the Seventh Circuit was whether the attempt to notify Rivera was adequate. Sending written notice by mail, as occurred in this case, is generally sufficient. However, in this case, the government knew five days after sending out the notice that it had not been delivered, leading to the question of whether the government must do more to satisfy due process.
The court declined to adopt a hard and fast rule, and instead created a rule that required a fact specific inquiry. The court noted that even without a warrant, the government was able to locate Rivera, but knowing that the notice was not delivered, did not do anything to try to notify her. While the attempt to notify her was adequate at the time it was mailed, at the point when the government knew that it had not been delivered, it should have attempted a second notification. Therefore, because the forfeiture proceedings did not comply with the law, the district court had jurisdiction over the case.
The opinion is available online at http://caselaw.lp.findlaw.com/cgi-moses/getcase.pl?court=7th&navby=case&no=001578.
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US v. Lewis, Eighth Circuit
In this case, the court upheld the trial judge’s decision to impose a greater sentence than normal for harboring an undocumented immigrant because of the cruelty with which the defendant treated the immigrant.
Barbara Lewis was convicted of harboring an undocumented immigrant after authorities found the body of an undocumented immigrant buried in her backyard. Testimony at her sentencing established that she and her family had held the immigrant hostage, forcing him to work as a servant and making him give them all money he made in other jobs. They also deprived him of medical care and adequate food, and were physically and psychologically abusive. Lewis was sentenced to five years in prison. She appealed the sentence, and the case was remanded for resentencing.
At the resentencing, the judge increased the punishment, finding that two factors called for it. First, Lewis had repeatedly tried to obstruct justice, offering money to people to testify falsely in her case and threatening others who reported her abusive conduct to authorities. Second, the judge found that her immensely cruel treatment of the immigrant warranted a harsher penalty. Lewis appealed the sentence again, arguing that the court had departed too far from the federal sentencing guidelines.
A district court is authorized to depart from the guidelines when the factor for the departure is not already taken into consideration in the guidelines themselves. The Eighth Circuit found that the court did not abuse its discretion in imposing the harsher sentence. Obstruction of justice is not considered in the guideline under which Lewis was sentenced, making it a proper factor for an increase in the sentence. Also, the extreme cruelty of her actions warranted an upward departure. While the sentence imposed was significantly more than the guideline base, the Eighth Circuit found that it was not an abuse of discretion, as it was clearly supported by the facts of the case.
The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,1218-Lewis.pdf.
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