[00:00:00] Speaker 03:
Our next case is Roderick Jamar Jenkins versus the United States, 2022-1378.

[00:00:07] Speaker 03:
Mr. Bruton.

[00:00:08] Speaker 03:
Good morning.

[00:00:13] Speaker 02:
May it please the court.

[00:00:15] Speaker 02:
Hunter Bruton on behalf of Plaintiff of Pellet, Mr. Jenkins.

[00:00:18] Speaker 02:
The Fifth Amendment's Takings Clause requires compensation when the federal government physically appropriates property and does not return it.

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And as the magistrate in the United States recognized below, the due process clause places limits on the United States handling of property that holds for investigation or forfeiture.

[00:00:34] Speaker 03:
Isn't there a police power exception to the takings clause?

[00:00:39] Speaker 02:
So we can dive right into Frayne and Connors.

[00:00:41] Speaker 02:
I think this is a good illustration of the limits of the police power exception.

[00:00:45] Speaker 02:
So starting in Frayne, I can't articulate it better than the third circuit.

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Although the police may seize potential evidence using a warrant, they may not keep it forever.

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So to put a finer point on it, I think there's two points of refrain we can take.

[00:00:56] Speaker 03:
They didn't intend to keep it forever.

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They sent a notice to the mother and the son that they were through with the cause and that they can be reclaimed.

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So two points on that factually.

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One, the United States did not send any notice.

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That was found by the magistrate below, and the due process right runs from the United States.

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not from an impound lot.

[00:01:21] Speaker 02:
And on the state notice, which is irrelevant to the due process claim, the United States and the impound lot actually didn't comply with that from the beginning.

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They have to give notice within five days of the seizure, and they never did.

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They also didn't give any notice to the son, right?

[00:01:35] Speaker 02:
Correct.

[00:01:35] Speaker 02:
The United States never gave notice to Mr. Jenkins.

[00:01:37] Speaker 04:
Nobody gave notice to Mr. Jenkins.

[00:01:40] Speaker 04:
The impoundment lot, the state, the United States, nobody gave notice to him, right?

[00:01:44] Speaker 04:
Correct, Your Honor.

[00:01:45] Speaker 04:
So what's the action

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and the date of the taking here.

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Is it the day after they no longer needed the cars for the case or is it when the cars were sold or some other date?

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So the takings occurs once the United States no longer has a forfeiture or investigative purpose.

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And when that purpose dissipated will be a factual question at the just compensation hearing.

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Because sometimes the United States, even after a criminal proceeding ends, will still seek forfeiture.

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But the doctrinal point is once the United States no longer has an investigative or forfeiture purpose, they have to return the property or provide just compensation.

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And we know the United States can't avoid liability under physical appropriation by handing it over to a third party.

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Horns established in that.

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The residual rights that Mr. Jenkins may have held in the property vis-a-vis the impound lot

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are relevant to whether there's a takings claim against the United States.

[00:02:43] Speaker 04:
As I understand CIC, if there's a federal remedy, you have to exhaust it.

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And there was a remedy as long as the government actually held the property through its agent, the impoundment law.

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So I'm not understanding how there could be a taking immediately after they no longer needed it when there was this Rule 41 remedy, which was available to

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So three points on Rule 41, one on the actual facts.

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Mr. Jenkins did pursue a Rule 41-G remedy and the United States defeated it by saying, we're going to give you back the property.

[00:03:21] Speaker 04:
Well, he didn't do it months later.

[00:03:22] Speaker 04:
He didn't do it immediately after his sentencing, right?

[00:03:27] Speaker 02:
Well, he was told until 2017 the United States was going to give him back the property, so he was waiting because again,

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You don't seek Rule 41G until the United States does have an investigative or forfeiture purpose.

[00:03:39] Speaker 04:
But until the property was sold, he had a Rule 41 remedy, right?

[00:03:47] Speaker 02:
The record is unclear when the DEA relinquished the holds, but once the United States no longer has custody of the evidence, there's no Rule 41G remedy.

[00:03:54] Speaker 02:
It has to be in the United States' custody because it's in rim jurisdiction.

[00:03:59] Speaker 04:
But I thought your theory was that the impoundment law was the agent of the United States.

[00:04:03] Speaker 02:
No, respectfully, that's incorrect, Your Honor, on the takings clause issue.

[00:04:07] Speaker 02:
On the takings clause issue, once there was a physical appropriation, the government has the burden of staying within the historical exception for police power, which is only when the investigative or forfeiture purpose exists.

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I think you've got a big problem if you're not viewing the impoundment lot as the agent of the government.

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So there were allegations that the impound lot was an agent of the government.

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We think that can be relevant to the due process clause claim.

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Our first line on takings is the one I just

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reiterated, which is that the United States, once it physically appropriates it, if it doesn't have a purpose to hold it anymore, it has takings liability.

[00:04:41] Speaker 04:
They appropriated it.

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You admit they had a legitimate purpose when they first appropriated it.

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They gave it to the impoundment law.

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And if they have no control or responsibility for what the impoundment law does, how are they engaging in any action that constitutes a taker?

[00:04:56] Speaker 02:
Two points, one on 8th Circuit precedent and one on federal law.

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Under 8th Circuit precedent, Hall and Bailey explain that the federal government is always responsible for evidence it initially seizes for custody in a criminal trial until it turns it over, or to the second point, follows established federal forfeiture proceedings.

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Here, the magistrate found the United States did not follow any forfeiture proceedings.

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And that's what takes us outside the scope of the police power exception as well.

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Regarding due process.

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It doesn't seem to be a money mandating statute supporting that argument.

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Nor was there money exacted.

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Was there?

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So we're not raising a money mandate.

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The legal exaction?

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On the money mandating, we're not raising a money mandate in claim of appeal.

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On the legal exaction, the exaction was the

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cars being given over to the impound lot under the auspices of the federal government holding them for evidence and investigative.

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How can that be due process exactions?

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You admit they took the cars properly in the first place.

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soon thereafter, as I understand it, turned it over to the impound lot, certainly before the sentencing.

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So you're suggesting there's something wrong with their turning it over to the impound lot.

[00:06:17] Speaker 04:
That makes no sense.

[00:06:19] Speaker 02:
As long as the United States maintains holds on the property, it's fine to have it at the impound lot, but there's a factual question about when the holds are released, which would be discussed on remand if the due process claim is remanded, and that is

[00:06:30] Speaker 02:
If the United States at some point said, we give up our holds, you can sell the cars if you want to, that would be an illegal exaction because there's no source of federal law that allows the United States to do that.

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Now the Takings Clause is naturally the easier fit here.

[00:06:42] Speaker 02:
on the facts.

[00:06:44] Speaker 01:
If I may go back to Frane, which the Court... Yeah, I'd like to go back to Frane, because I think I understand how it supports your claim, but of course that's Third Circuit law.

[00:06:53] Speaker 01:
Is that consistent with what we've said, for instance, in Amerisource, where we say property seized and retained pursuant to the police power is not taken for a public use in the context of the takings clause?

[00:07:04] Speaker 01:
I think Judge Bibas said exactly the opposite under Third Circuit law.

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So under this circuit's law, the key word there was retained.

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The United States stays within the police power exception as long as it retains the evidence.

[00:07:17] Speaker 02:
Now, I think, again, Judge Bevis makes a good point about if you're holding something for a public trial, of course it's a public use.

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But the court doesn't have to reach that issue here because the police power exception under this court's evidence only protects the government if it is retaining the evidence or seeking forfeiture.

[00:07:34] Speaker 01:
So when they turned it over to the impoundment law,

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now they don't have the protection of what we said in Amerisource?

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Is that your argument?

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If they are completely relinquishing the evidence, if they are not retaining the evidence, right?

[00:07:50] Speaker 01:
I'm not sure I understand that, but the question I really want to understand is, isn't our law different, at least as articulated in Amerisource, than what the third

[00:08:02] Speaker 01:
circuit set.

[00:08:03] Speaker 01:
We seem to be saying that if you have a proper exercise of the police power at the time you seize the property up front, there is no takings.

[00:08:12] Speaker 01:
There's no takings concern after that point.

[00:08:15] Speaker 01:
Isn't that our law?

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And doesn't that defeat your claim?

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To know, Your Honor, because in each of those cases, the government either sought forfeiture or returned the property.

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And it was that return or seeking forfeiture which kept the United States within the exception.

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I think another way to put it doctrinally is once a physical appropriation occurs, there is automatically a taking.

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And the just compensation obligation is told or held only for the time that the government has a very narrow, valid historical purpose.

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And we know from Cedar Point Supreme Court

[00:08:45] Speaker 01:
All right, yes, thank you.

[00:08:46] Speaker 01:
I did have another question for you.

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If the property has been abandoned, there cannot have been a taking, isn't that right?

[00:08:54] Speaker 02:
If that is a state law question or a Minnesota law, and here the district court... I don't think that's a state law question.

[00:09:01] Speaker 01:
If it's been abandoned, can there be a federal takings claim?

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If it has been completely abandoned and there's a factual finding on that point, that wouldn't be a cognizable takings claim.

[00:09:13] Speaker 01:
So what is the record here?

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It's very confusing to me whether the district court found abandonment or whether that was even litigated here.

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So abandonment wasn't addressed because the district court found specifically that Mr. Jenkins had a cognizable property interest in both the vehicles.

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They found that he pursued his remedies and never gave them up, right?

[00:09:34] Speaker 02:
We know until 2017 when the United States learned that they no longer had the vehicles, he was asking for the vehicles back.

[00:09:40] Speaker 04:
Okay, so why, here we have a situation in which the vehicles were no longer needed after he was sentenced, correct?

[00:09:48] Speaker 04:
The government no longer had interest in retaining them.

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You agree with that?

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I assume so.

[00:09:52] Speaker 04:
Yeah.

[00:09:53] Speaker 04:
Okay, so it was more than six months

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after that that he filed the Rule 41 motion, right?

[00:10:04] Speaker 04:
Correct.

[00:10:04] Speaker 04:
So I guess one argument that the government might make is that doing nothing in that six-month period amounted to an abandonment of the property and then it was properly sold to satisfy the storage charges.

[00:10:21] Speaker 04:
So what's the matter with that argument?

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Why isn't it an abandonment to wait six months to file the Rule 41 motion?

[00:10:31] Speaker 02:
So four points on that.

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I say I'm running into my rebuttal time.

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The factual finding point, which I already pointed out, which the United States doesn't see clear review on.

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And then on Rule 41 G, that's a merits argument that was waived and a stop to blow because the United States said they'll give back the property.

[00:10:45] Speaker 02:
Under Nick, which is a Supreme Court precedent,

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Regardless of post deprivation remedies, which includes Rule 41G, you have it taking its time.

[00:10:53] Speaker 02:
You have it taking its time.

[00:10:54] Speaker 04:
No, no, no.

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Nick says specifically that if there is a federal exhaustion requirement, you have to follow that.

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And the argument here, as I understand it, is that Rule 41 is a remedy that has to be exhausted.

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And that remedy is available as long as the government has the property.

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And the government has the property as long as it's in the impoundment law.

[00:11:16] Speaker 04:
So it would seem to me that there's a pretty good argument that under Rule 41 that you have a remedy at least until the government has sold the property through the impoundment law.

[00:11:29] Speaker 04:
Maybe at that point, there's a taking.

[00:11:32] Speaker 04:
Maybe at that point, there's no longer a remedy to exhaust.

[00:11:35] Speaker 04:
But up until that time, isn't there a remedy to exhaust?

[00:11:39] Speaker 02:
So two points, and then I'll rest unless there's further questions.

[00:11:43] Speaker 02:
He filed two pro se motions for 41G return.

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The United States defeated both of them by saying, we will return the property.

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We are going to give the property back to you.

[00:11:51] Speaker 04:
No, I'm not addressing my point.

[00:11:52] Speaker 04:
He didn't make the motion until more than six months after the government no longer needed the property.

[00:11:59] Speaker 04:
The question is, why is that waiting six months and abandon?

[00:12:03] Speaker 02:
Because, Your Honor, there was no factual finding that the United States didn't need the property.

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As illustrated by this court's cases, the United States routinely holds property for seven, 10 years after a prosecution.

[00:12:14] Speaker 02:
So until the United States represents that it's relinquishing its hold on the vehicles, Mr. Jenkins can still file his Rule 41-G motion.

[00:12:21] Speaker 01:
You seem to suggest that there was a factual finding that your client did not abandon the property, that they're not challenging for clear error.

[00:12:29] Speaker 01:
What is it that you think was found by the district court

[00:12:33] Speaker 01:
on whether your client abandoned the property, which I understand to be related to whether or not he had notice and an opportunity to get the property back.

[00:12:43] Speaker 01:
What did the district court find?

[00:12:45] Speaker 02:
The district court found Mr. Jenkins had a cognizable property interest in both vehicles.

[00:12:49] Speaker 01:
That doesn't say anything.

[00:12:52] Speaker 01:
I don't think about whether he later abandoned that property interest.

[00:12:56] Speaker 02:
Right.

[00:12:56] Speaker 02:
But the United States below did not say he abandoned the interest, right?

[00:12:59] Speaker 02:
They said they were going to return the property to him.

[00:13:02] Speaker 02:
all the way through the proceedings below.

[00:13:03] Speaker 01:
Well, they at least suggest to us now, maybe you can argue it's too late, that your client said during the criminal proceedings at A92, I was informed to go pick up both motor vehicles.

[00:13:16] Speaker 02:
So I'll point the court to our footnote on this.

[00:13:19] Speaker 02:
They didn't ask for judicial notice of the criminal findings.

[00:13:22] Speaker 02:
That's a fact issue to be determined in the civil case.

[00:13:25] Speaker 02:
You can't take judicial notice of facts that are just said in a separate proceeding.

[00:13:29] Speaker 01:
So what would you have me do?

[00:13:31] Speaker 01:
If I agree with you that you have a cognizable takings claim here, but I can't tell whether your client had adequate notice and therefore whether he abandoned whatever property right he had, what do I do?

[00:13:45] Speaker 01:
Is that resolvable on my record or do I have to send it back?

[00:13:49] Speaker 02:
So we maintain that it's resolvable on the record, but the court can remand the case for factual finding if there are fact-finding issues that have been determined below.

[00:14:00] Speaker 03:
We'll give you three minutes for a bottle.

[00:14:04] Speaker 03:
Ms.

[00:14:04] Speaker 03:
Berkland, we're happy to see you here.

[00:14:07] Speaker 03:
Thank you.

[00:14:08] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:14:11] Speaker 00:
Melissa Berkland on behalf of the United States.

[00:14:13] Speaker 00:
The seizure of automobiles connected to a criminal investigation represented a valid exercise of the government's... No one's disputing that.

[00:14:20] Speaker 04:
The question is whether the retention

[00:14:23] Speaker 04:
of them beyond the period that they were needed for the criminal investigation, and then the sale of the vehicles constitutes a taking.

[00:14:31] Speaker 00:
Certainly, Your Honor.

[00:14:32] Speaker 00:
So I would point, Your Honors, to appendix that starts at 104.

[00:14:38] Speaker 00:
We submitted during the district court level an affidavit of the impound lot owner, and then also the notices that the impound lot owner sent to the registered owner of the vehicle, who was Stephanie Buchanan.

[00:14:50] Speaker 00:
And the impound lot owner represented that the hold that the government had on the cars was released about 10 days before Mr. Jenkins was sentenced.

[00:15:02] Speaker 00:
So I think the timeline is really critical here as it is in any takings examination.

[00:15:07] Speaker 00:
The cars were seized in October 2012.

[00:15:10] Speaker 04:
So if they no longer needed them 10 days before the sentencing, let's assume that, then why isn't the continued retention of them

[00:15:20] Speaker 04:
and the eventual sale of them, a taking.

[00:15:26] Speaker 00:
Your Honor, it's not a taking, and I would point to the United States Department of Justice's seizure and forfeiture manual.

[00:15:34] Speaker 00:
Even though it broadly discusses forfeiture proceedings, it also discusses, at Chapter 1, what happens when the United States decides not to forfeit an item.

[00:15:43] Speaker 00:
And this was cited in Mr. Jenkins' brief, but there's essentially three options that the United States have.

[00:15:51] Speaker 00:
Return it to the appropriate party, initiate abandonment procedures, or otherwise dispose of it in accordance with law.

[00:15:58] Speaker 00:
And what our argument is, is that we're looking at prong three, otherwise dispose of it in accordance with law.

[00:16:04] Speaker 00:
And then we turn to the Minnesota state statute,

[00:16:07] Speaker 04:
We just can't have anything to do with the government's obligation to give notice.

[00:16:12] Speaker 04:
The Minnesota state statute doesn't govern here in the takings context.

[00:16:16] Speaker 00:
Well, Your Honor, it may, because the statute describes that the impound law owner or the government... Well, let's put that aside.

[00:16:25] Speaker 04:
Let's forget about that, okay?

[00:16:28] Speaker 04:
It seems to me the question is, well, there are multiple questions here, but

[00:16:35] Speaker 04:
under this under the seven-circuit case that the liability uh... for taking doesn't exist if there was an abandonment right since the government are you mean that there was an abandonment of the vehicles by the defendant here your honor i think i think there's a very

[00:16:53] Speaker 00:
very strong facts to support that there was an abandonment.

[00:16:57] Speaker 00:
Consistent with Conyers, there was notice given to the property owners and if they did not... I want you to forget about that notice because it seems to me that notice was not adequate.

[00:17:11] Speaker 04:
That's not the kind of notice that was involved in the Seventh Circuit case.

[00:17:16] Speaker 04:
So, assuming that he did not get any notice and that he should have gotten notice, was there an abandonment nonetheless because he knew that he could bring a Rule 41 proceeding?

[00:17:31] Speaker 00:
I think exhausting his Rule 41 proceedings was critical in this matter.

[00:17:36] Speaker 00:
Two points.

[00:17:38] Speaker 00:
The Rule 41

[00:17:39] Speaker 00:
the statute dictates that the motion be brought within the jurisdiction that the property was seized from, so even though he was prosecuted in the District of North Dakota, I think there's an argument to be made that he was in the wrong jurisdiction.

[00:17:52] Speaker 00:
Second, he brought it, I don't even think it was months, I don't have the date in front of me, but it was years following his, the finalization of his criminal proceedings.

[00:18:02] Speaker 04:
I think it was about six months afterwards.

[00:18:05] Speaker 00:
Okay, and at that point,

[00:18:10] Speaker 00:
You know, the impound lot disposed of the property within its obligations under Minnesota state law at about six months.

[00:18:20] Speaker 04:
Forget about state law.

[00:18:22] Speaker 01:
It's not going to cut.

[00:18:24] Speaker 00:
Okay.

[00:18:26] Speaker 01:
Could I follow up on 41?

[00:18:28] Speaker 01:
Didn't you argue below and defeat the motion based on the contention that the government didn't have the property any longer?

[00:18:36] Speaker 01:
Yes, Your Honor, we- So how can we now turn around and fault him for not prevailing on its Rule 41 motion?

[00:18:43] Speaker 01:
Aren't you judicially stopped from making these arguments?

[00:18:46] Speaker 00:
Your Honor, I don't believe that the United States can be judicially stopped from essentially making a quick claim promise to Mr. Jenkins at the lower court level.

[00:18:56] Speaker 00:
We were saying we can give you the property that we have interest in, and we no longer had an interest in the property, and we no longer had custody of that property.

[00:19:04] Speaker 04:
You heard your agent did.

[00:19:06] Speaker 00:
There's nothing in the record, and I don't know that there's even an ability to support any argument that the impound law.

[00:19:13] Speaker 04:
Let's assume for the moment that the impound law was the government's agent, OK?

[00:19:17] Speaker 04:
OK.

[00:19:18] Speaker 04:
And so you're responsible for what the impound law did.

[00:19:21] Speaker 04:
OK.

[00:19:23] Speaker 04:
Is there an abandonment claim by the government, and what's the basis for it?

[00:19:27] Speaker 00:
Well, there's no clear requirement that the United States or its agents need to hold on to property indeterminately.

[00:19:39] Speaker 00:
And I think there is, we would argue, if we were required to say that the impound lot was our agent, that the property was abandoned.

[00:19:51] Speaker 04:
I also think it's important that- But why was it abandoned?

[00:19:55] Speaker 04:
His failure to make a Rule 41 motion earlier, something else, what cost did it abandon?

[00:20:02] Speaker 00:
Yes, Your Honor.

[00:20:03] Speaker 00:
I think if he had timely exhausted his Rule 41 rights, he would have a greater claim.

[00:20:16] Speaker 00:
You put yourself at risk if you decide to title your property in somebody else's name.

[00:20:22] Speaker 00:
And so I'm not sure there's a process that would allow for a non-registered owner of something to come in and claim that there was not adequate notice.

[00:20:32] Speaker 00:
We have titling procedures for a reason, and those can supply.

[00:20:35] Speaker 04:
Let's assume he owned vehicles, OK?

[00:20:40] Speaker 04:
Under the Seventh Circuit case, it would seem as though the government would have to give him notice in order to claim that there was an abandonment.

[00:20:50] Speaker 04:
And there wasn't any notice to him that if he didn't pick up the property within 30 days or 60 days or whatever, that it would be deemed abandoned.

[00:20:58] Speaker 04:
That's an element of the Seventh Circuit case which is missing here.

[00:21:04] Speaker 00:
Correct, Your Honor.

[00:21:05] Speaker 00:
And I would suggest that

[00:21:10] Speaker 00:
To the extent that Your Honors are finding that there wasn't adequate notice if we're reviewing the state law cases, I would

[00:21:22] Speaker 00:
try to pivot and make sure that we're always framing this within this court's jurisprudence, because under Acadia and Amerisaurus and Camel Maas, there was arguably a much greater deprivation, where property was seized for up to years and determined either destroyed or invaluable.

[00:21:40] Speaker 01:
We can come to that, but I'm not ready for you to move off from abandonment.

[00:21:42] Speaker 01:
OK.

[00:21:43] Speaker 01:
Would the burden be on the government to show abandonment?

[00:21:46] Speaker 01:
Are you making that claim?

[00:21:48] Speaker 01:
And if so, was that presented below?

[00:21:50] Speaker 01:
Do we have a record on it?

[00:21:52] Speaker 00:
no your honor there was not a record me below on abandonment i believe that's because you guys did not argue that no argument below was that

[00:22:03] Speaker 00:
The taking lasted up until the hold was released on the vehicles, and then under the asset forfeiture manual, we can look to an impound lot owner to provide notice.

[00:22:19] Speaker 04:
Your manual doesn't exactly have constitutional status to it.

[00:22:24] Speaker 00:
You're right, Your Honor.

[00:22:25] Speaker 04:
Part of your manual may be desirable from an internal standpoint, but it's not necessarily sufficient constitutional notice.

[00:22:35] Speaker 00:
That's correct, Your Honor.

[00:22:36] Speaker 00:
And I think under the Tucker Act, there's also important considerations that were

[00:22:42] Speaker 00:
that he is required to clearly stay within the confines of jurisdiction.

[00:22:48] Speaker 01:
And we wouldn't otherwise be in this court if... Maybe another way to ask the abandonment question is the notice.

[00:22:54] Speaker 01:
What is the record on notice and whether he had adequate notice?

[00:22:59] Speaker 00:
So there's constructive notice that he has made comments during certain proceedings that he was aware that he needed to go reclaim his vehicles.

[00:23:09] Speaker 01:
And then the contention is you didn't ask the civil court to take judicial notice of those comments.

[00:23:17] Speaker 00:
You're right, Your Honor.

[00:23:18] Speaker 00:
But his proceeding, because it stemmed from a criminal case, I think that it is appropriate, even if we didn't affirmatively ask, that the lower court be able to use facts that were established in his criminal proceeding.

[00:23:34] Speaker 04:
What facts were established in the criminal proceeding?

[00:23:36] Speaker 00:
So there was affidavits that he had presented and filings that he had presented that showed that he had heard that he had noticed that his cars were available to be picked up.

[00:23:51] Speaker 04:
When?

[00:23:52] Speaker 00:
I believe that would have been at some point in the fall, the register of 2013.

[00:23:57] Speaker 00:
The registered owner received a letter prior to her release from custody, so he may have heard it through that way.

[00:24:05] Speaker 00:
The letter was sent from the impound lot in October 2013, so I think it's very reasonable that he may have received notice that way.

[00:24:12] Speaker 00:
But I don't, you're right, there is not a record on whether or not he received a

[00:24:19] Speaker 04:
actual notice also shouldn't at a minimum shouldn't the district court here determined whether he received notice that they were available pick up the new they're available to pick up and he didn't do anything for months to get them back until he filed his rule forty one i think the district courts

[00:24:40] Speaker 00:
Two orders can be affirmed independent of that inquiry.

[00:24:47] Speaker 00:
And that here is what the United States is requesting that this court do.

[00:24:53] Speaker 00:
I don't think that we need to develop a record on notice.

[00:24:58] Speaker 00:
I think another important component of this is that

[00:25:03] Speaker 00:
When we think about it taking, the United States never received the cars permanently and we never received any money for the cars as we would through a forfeiture proceeding.

[00:25:14] Speaker 01:
And so that's an important distinction that... If we agree with the Third Circuit's analysis, that even if the initial seizure is a proper exercise of the police power, but at some point

[00:25:27] Speaker 01:
if you don't return the property or proceed with forfeiture, it becomes a taking.

[00:25:32] Speaker 01:
If we agree with that, do we have to then address the abandonment or notice issue?

[00:25:40] Speaker 00:
I think it's slightly different for a third circuit to review the constitutionality of its state laws versus, you know, there's

[00:25:55] Speaker 00:
not any statutes that the United States that I'm aware of that was required to follow and that if we hadn't followed them, there wouldn't be appropriate notice given or abandoned.

[00:26:05] Speaker 01:
They're required to follow the constitution.

[00:26:07] Speaker 01:
And that's what we're here to figure out.

[00:26:09] Speaker 01:
Let me ask you this then.

[00:26:12] Speaker 01:
Have you cited any cases

[00:26:16] Speaker 01:
where this court has said that the police power extends beyond the time when the government needs the property that it has seized.

[00:26:26] Speaker 01:
It seemed to me that all of our cases have previously only addressed, at least implicitly, the government's initial seizure, which you focus on, and keeping the property only as long as the government had a proper purpose.

[00:26:41] Speaker 01:
Have we ever said that?

[00:26:43] Speaker 01:
as long as if it was proper exercise of the police power upfront, the government could hold onto the property indefinitely?

[00:26:50] Speaker 00:
No, Your Honor.

[00:26:51] Speaker 00:
And I don't think any of the trilogy of cases that discuss a takings related to a search warrant would support that either.

[00:27:02] Speaker 00:
So the United States is certainly of the mind that there is a limit to the police power.

[00:27:08] Speaker 01:
So you don't contend, for instance, that we cannot

[00:27:11] Speaker 01:
agree with the Third Circuit.

[00:27:13] Speaker 01:
We have no cases that bind us, that prevent us from agreeing with what the Third Circuit articulated in the Frayne case.

[00:27:20] Speaker 00:
Your Honor, I think in Frayne, there was certainly arguments and holdings made that were in accordance with Amerisaur syndicatia, that property seized may be held so long as it has an evidentiary purpose.

[00:27:36] Speaker 00:
I think

[00:27:37] Speaker 00:
an evaluation that the court didn't necessarily go into that it needed to, is that when we're looking at the Fifth Amendment, we have to make sure that we're also ensuring that there was a taking for public use.

[00:27:50] Speaker 00:
And I don't think the frame court had any analysis on that very important and critical point.

[00:27:56] Speaker 01:
It said it was basically obviously taken for public use, the initial seizure for a criminal investigation there.

[00:28:04] Speaker 01:
Is it your contention that our law is different on that point?

[00:28:08] Speaker 00:
I think it narrows what a taking is in a way that Acadia Amerisource and Cam Elmas had not, but I think our case and the facts of our case can still be commensurate with that taking because we did release a hold and we released custody in our interest

[00:28:30] Speaker 00:
10 days before Mr. Jenkins was sentenced, and when it no longer served an evidentiary purpose.

[00:28:38] Speaker 00:
I see that I am nearing the end of my time, so I will rest and respectfully request that you affirm the district court's opinion, unless you have further questions.

[00:28:47] Speaker 03:
Thank you, counsel.

[00:28:50] Speaker 03:
Mr. Broughton, you have three minutes.

[00:28:54] Speaker 02:
Three points, Your Honors.

[00:28:56] Speaker 02:
One on preservation.

[00:28:57] Speaker 04:
Do you agree that if the

[00:28:59] Speaker 04:
the property was abandoned, if there were a finding that the property was abandoned by the defendant, that there would be no takings claim?

[00:29:09] Speaker 02:
If there was a factual finding, which there wasn't here, that Mr. Jenkins abandoned the property, then there would not be a property interest in the claim.

[00:29:17] Speaker 02:
That directly contradicts the factual finding that the magistrate made that the United States isn't challenged.

[00:29:22] Speaker 02:
And that dovetails perfectly with the president.

[00:29:23] Speaker 01:
Yeah, which factual finding is that?

[00:29:26] Speaker 01:
Again, which factual finding?

[00:29:28] Speaker 01:
You may not know, it's magistrate judge.

[00:29:30] Speaker 01:
It's not just magistrate.

[00:29:32] Speaker 02:
Oh, excuse me.

[00:29:33] Speaker 02:
Excuse me for there, Your Honor.

[00:29:37] Speaker 02:
So on Appendix 8, this is the first full paragraph on the page.

[00:29:44] Speaker 02:
Jenkins is established by a preponderance of the evidence that he had an ownership interest in both vehicles under a precedent in the Eighth Circuit.

[00:29:51] Speaker 04:
But that's not a finding that he didn't abandon that interest.

[00:29:56] Speaker 02:
has the burden to stay within the exception, abandonment would be part of that.

[00:29:59] Speaker 02:
So the government didn't argue below or argue in its brief here that Mr. Jenkins abandoned the property.

[00:30:04] Speaker 02:
So that argument is waived or forfeited at the very least.

[00:30:06] Speaker 01:
That's different than saying the district court already made a finding.

[00:30:09] Speaker 01:
Would you agree with that?

[00:30:11] Speaker 01:
There is no finding on abandonment.

[00:30:14] Speaker 02:
Our position is the finding we pointed to, but I understand the position, Your Honor.

[00:30:17] Speaker 02:
And we would point the point then to waiver or forfeiture.

[00:30:20] Speaker 02:
And we'd say at the very least, the court would have to remand for a factual finding on abandonment.

[00:30:24] Speaker 02:
And to go into the other arguments that weren't raised below, this Venue 41G issue, not raised below, the government participated in the Rule 41G proceedings.

[00:30:32] Speaker 02:
And again, didn't argue that in its brief here.

[00:30:35] Speaker 02:
Didn't argue what?

[00:30:37] Speaker 02:
Specifically that the Rule 41G has to be in a separate jurisdiction than the district.

[00:30:45] Speaker 02:
And then on the fact on notice, if the district court has an interest, or excuse me, if this court has an interest on the factual finding

[00:30:53] Speaker 02:
when Mr. Jenkins knew where the cars were, if he said he could pick up the cars.

[00:30:57] Speaker 02:
All that was cited to the motions in 2017.

[00:31:00] Speaker 02:
And again, the district court, I'll point you to appendix 17 through 19, specifically on 17 when discussing these proceedings.

[00:31:10] Speaker 02:
This is the block quote.

[00:31:13] Speaker 02:
The court says that Jenkins' proceeding, per se, moved to return property.

[00:31:18] Speaker 02:
The United States responded that it would return the property.

[00:31:21] Speaker 02:
including the two vehicles, if there are no other claims.

[00:31:23] Speaker 02:
In light of the United States response, the court found it moot.

[00:31:26] Speaker 02:
Then Mr. Jenkins moot for reconsideration, so on through these appendix sites.

[00:31:30] Speaker 02:
So those are the factual findings that are here.

[00:31:32] Speaker 02:
If there's a paucity of factual findings on any issue, it's a remand issue.

[00:31:37] Speaker 02:
And again, on the authority point, there's been no authority in over 200 years of constitutional jurisprudence that would allow a taking like this.

[00:31:45] Speaker 02:
This court should not be the first one to recognize it.

[00:31:47] Speaker 02:
We respectfully ask this court to reverse and remand for a just compensation hearing.

[00:31:51] Speaker 03:
Thank you, Council, the case is submitted.