UNITED STATES v. JAMES DANIEL GOOD REAL PROPERTY
Legal provision: Due Process
IN THE SUPREME COURT OF THE UNITED STATES
UNITED STATES, Petitioner v. JAMES DANIEL GOOD REAL PROPERTY, ET AL.
October 6, 1993
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:01 a.m.
EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.
CHRISTOPHER J. YUEN, ESQ., Hilo, Hawaii; on behalf of the Respondents.
CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 920-1180, the United States v. James Daniel Good Real Property.
The spectators are admonished to be quiet until you get out of the courtroom. The court is still in session.
ORAL ARGUMENT OF EDWIN KNEEDLER ON BEHALF OF THE PETITIONER
MR. KNEEDLER: Thank you, Mr. Chief Justice, and may it please the Court:
This is a civil forfeiture case brought by the United States against the respondent real property which was used in the commission of a felony violation of the Federal drug laws.
The United States seeks review here of two distinct holdings by the Ninth Circuit. First, the Ninth Circuit held that the seizure of the real property for forfeiture, even though it was undertaken pursuant to a warrant issued by a magistrate based on a finding of probable cause, violated the Due Process Clause of the Fifth Amendment because the owner of the property, claimant Good, was not given notice and an opportunity for a hearing before the seizure was executed.
That ruling, we submit, was erroneous. The seizure, based on a warrant, fully complied with Fourth Amendment procedures and the Fourth Amendment standard of reasonableness. It is through the Fourth Amendment, not the Fifth, that the framers of the Bill of Rights furnished an explicit textual source to judge the reasonableness of seizures. And it is through the Fourth Amendment, not the Fifth, that the Bill of Rights balances private interests against the public interest in law enforcement in this setting. Put another way, compliance with Fourth Amendment requirements furrishes the process that is due in circumstances such as these.
The second holding by the court of appeals --
QUESTION: Excuse me, Mr. Kneedler.
MR. KNEEDLER: Yes.
QUESTION: I have found it hard to understand where that gets you. The Fourth Amendment contains a reasonableness requirement anyway. Couldn't that reasonableness requirement be the same thing as the Due Process Clause.
MR. KNEEDLER: It could. But our point -- I mean, one -- as an analytical matter, one could look at it either way, that the Fourth Amendment occupies the field and the Due Process Clause simply doesn't address the question, or that the Fourth Amendment supplies the standard. But the important point either way, for these purposes, is that the issuance of a warrant is the procedural protection that the Fourth Amendment specifically identifies for protecting the interests in property, and particularly in a house, as this Court has stated.
And in Gerstein v. Pugh, for example, where the Court considered the determination of probable cause with respect to the detention of an individual, the Court said that no adversarial hearing was required for the determination of probable cause. And we think, under the Fourth Amendment, that that would follow a fortiori with respect to the arrest and detention of real property where a liberty interest is not at stake.
QUESTION: You think the Fourth Amendment says that a warrant always satisfies the requirement of reasonableness.
MR. KNEEDLER: I think that's the logic and general thrust of this Court's case is the Court has assumed -- particularly in the context of a seizure of a house, the Court has regarded the warrant protection as an important bulwark in protection for the liberty and property of individuals. The warrant issued by a neutral and detached magistrate, that is what the framers of the Fourth Amendment placed between individuals and the State.
But the general terms of the Due Process Clause, which don't specifically address the question of seizures, don't suggest that a seizure that the Fourth Amendment itself deems reasonable by virtue of the issuance of the warrant, and that is undertaken pursuant to the authority that is constitutionally vested in the seizing officers pursuant to that warrant, is nevertheless in violation of the Constitution itself.
QUESTION: Why did Fuentes go on a different analysis? Is it because there was no seizure?
MR. KNEEDLER: Well, Fuentes didn't address the problem in exactly this way, but since Fuentes there have been a number of cases decided by this Court in which the Court has made the very point that I'm making here, that the explicit -- the phrase used in Graham v. Connor, the explicit textual source governing the physical intrusion -- against the person in that case, but the same point is true with respect to the property here -- comes from the Fourth Amendment, and that --
QUESTION: Well, why -- I guess -- I'm not sure why that is self- evident. I mean we -- the Court said in Soldal that there's no sort of field occupation theory as between the Fourth and the Fifth Amendments. And it seems odd to me that Fuentes, which -- and I didn't check this before coming in, may simply have been concerned with the -- with an -- no, Fuentes involved the seizure of property, didn't it?
MR. KNEEDLER: Yes.
QUESTION: Because that was replevin. That Fuentes would have imposed the higher requirement. Are the later cases, in your judgment, in effect inconsistent with Fuentes?
MR. KNEEDLER: No. I think that can all be reconciled in the following respect. First of all, what we have here is something that was not present in Fuentes and wasn't present in most of the case -- or in the cases dealing with debtor-creditor relations. We have law enforcement activity undertaken by the United States Government, and the same would be true, of course, of a State government. And this is a point that Fuentes itself made in distinguishing a seizure under writ of replevin from a seizure under a search warrant, pointing out that among --
QUESTION: Does it matter that the so-called law enforcement activity in this case is one that, as a practical matter, was unknown at the time the Fourth Amendment was adopted? I mean, we're dealing here with a forfeiture statute of a breadth which historically, I guess, was unknown.
MR. KNEEDLER: Well, certainly seizures of property for forfeiture was not unknown.
MR. KNEEDLER: And it was a -- in fact, it was a major source of revenue for the Federal Government at the beginning of the Nation.
QUESTION: Well, it was, but the concept of forfeiture embodied in the present statute is far broader than anything the eighteenth century knew, isn't it?
MR. KNEEDLER: Well, it -- in one respect I think in this case that's not really true conceptually. Because, for example, at the time the Constitution was adopted, ships used in the transportation of goods brought into the United States in violation of customs laws were subject to seizure. So the -- excuse me -- subject to seizure, so that the ship was used for a violation of the customs laws and therefore subject to forfeiture. And we have a direct analogue here.
QUESTION: Were warehouses subject to seizure if uncustomed goods were found?
MR. KNEEDLER: No, not that I'm aware of. My point is simply --
QUESTION: That would be the analogy here, wouldn't it?
MR. KNEEDLER: Well, my point is simply that whenever the item of property is used in the commission of the offense, be it a ship or a house, that the same result follows. And Dobbins' Distillery, for example, involved forfeiture of real property used in the production of illegal liquor, and illegal drugs is the direct analogue of that as well, and there was no prior notice or hearing in Dobbins.
QUESTION: Mr. Kneedler, let me test your contention that the -- not only does the Fourth Amendment constitute the sole restriction here, but also that a prior warrant automatically makes it reasonable under the Fourth Amendment.
Suppose Congress passes a law that says anyone convicted of a certain crime shall forfeit a million dollars, shall be liable for a million dollars fine for that crime. Moreover, if there is probable cause to believe that a person has committed that crime, his assets up to the amount of a million dollars shall immediately be seized by the Government to be sure that he will be able to pay the fine.
Okay, and you have a probable cause hearing and a warrant issues to seize that million dollars of this individual who has not yet been convicted of a crime, but you have probable cause to believe that he committed the crime. Is it your contention that that automatically complies with the Fourth Amendment and automatically -- and you don't have to comply with any other requirement of the Constitution?
MR. KNEEDLER: I think that goes one step beyond this, for the following reason. As the Court pointed out in Connecticut v. Doehr, that one of the distinctions in that case was that the plaintiff seeking to attach the property in question had no interest, preexisting interest in the property, and the dispute did not concern the particular property. And the Court pointed out those distinctions, which would also be true in your case, where the Government was really trying to attach, in effect, property to secure a fine.
QUESTION: Oh, the particular property. So I would have to modify my hypothetical to say anyone guilty of that crime shall forfeit his -- all real estate that he owns up to a value of a million dollars.
MR. KNEEDLER: No, I'm sorry, I meant the property used in the commission of the offense, which is what we have here. The Government -- at the time of the commission of the offense, the Government has an interest in the property because the statute declares it forfeited to the United States by virtue of the commission of the offense. So the Government has, in that sense, a direct interest in the property itself, not simply as a security but in property itself.
QUESTION: Okay. So a prior warrant doesn't make everything okay. There are other requirements even under the Fourth Amendment.
MR. KNEEDLER: Well, I'm not saying that the warrant would not be sufficient in that case. All I'm saying is that there is a distinction there. But the --
QUESTION: Oh, I understand. Oh, I see.
MR. KNEEDLER: But -- but -- but --
QUESTION: You're saying that that might be okay, in your view.
MR. KNEEDLER: Well --
QUESTION: My original hypothetical, that so long as you have a warrant, even though the individual hasn't been convicted of the crime, you have probable cause to believe he's guilty of the crime, you can seize a million dollars of his assets.
MR. KNEEDLER: Well you --
QUESTION: So long as you have a warrant.
MR. KNEEDLER: You might be able to restrain them. You couldn't finally subject them to forfeiture. But that's very much like what -- the case in Monsanto where the --
QUESTION: You just seize them. You seize them. You don't spend them but you say, you know, we'll hold it until you're tried. Meanwhile, you don't have all your money.
MR. KNEEDLER: Well, in Monsanto the Court held that the defendant's property there could be restrained on the basis of a finding of probable cause.
QUESTION: So your answer is yes, that it's okay.
MR. KNEEDLER: I think yes.
QUESTION: I thought it was.
MR. KNEEDLER: Yes. And let me --
QUESTION: And I don't agree with it.
MR. KNEEDLER: Let me add a further point to that, that even in the debtor-creditor situation in which the Court has applied the more general balancing test of Mathews v. Eldridge, the Court has not held that a finding of probable cause on the basis of detailed affidavits is insufficient to satisfy the Due Process Clause.
In fact, in Mitchell v. W.T. Grant the Court placed heavy reliance on the fact that this was not just a perfunctory review of the submission by the judge. There was a determination by the judge on the basis of a detailed affidavit that there was a basis to believe that the plaintiff's claim was valid.
And also in W.T. Grant as well, the Court made the point that I made about Connecticut v. Doehr. In that case, the seller of the goods had an interest in the property and an interest in insuring that they not be wasted.
QUESTION: Mr. Kneedler --
QUESTION: As a matter of curiosity, the Government waited 4-1/2 years here, didn't it? Why?
MR. KNEEDLER: After the commission of the offense.
QUESTION: Yes, why?
MR. KNEEDLER: The record does not disclose why. The claimant Good asked the Government to answer an interrogatories when the Government -- when the DEA agents and other officers learned of the violation. And the Government declined to answer those on the grounds that they weren't relevant, that that internal reporting was not germane to whether the suit was timely. I understand that the -- that this is -- that the U.S. Attorneys Office was informed or inquired about whether the property was subject to forfeiture.
QUESTION: That's kind of a weak excuse, isn't it? Does the Government always wait this long to move in?
MR. KNEEDLER: No. Ordinarily the Government would not wait this long. And, in fact -- let me retract that. There's no evidence that the Government waited in the sense that the responsible individuals in DEA knew of the violation of the drug laws but nonetheless sat on their hands. For all that appears, once the information came to the attention of the DEA and the U.S. Attorney, forfeiture proceedings were promptly filed. So there's not any finding here of delay.
But our point, and this goes to the second issue in the case, is that the Ninth Circuit held that if the court -- district court should find on remand that Government agents failed to comply with what the court of appeals itself called internal requirements for the prompt reporting and filing of suits, that the case must be dismissed even though it was filed within the 5-year statute of limitations.
QUESTION: Mr. Kneedler, before you proceed to that second issue in the case, there's one point I'd like you to address. It's related to the question Justice Scalia asked. You gave the example of the ship and you gave the example of the distillery, but isn't one of the problems with this new extension of the forfeiture that much more is taken than the very house where the drugs were kept? How much property was subject to forfeiture?
MR. KNEEDLER: In this case?
MR. KNEEDLER: There was a house, a garage, and a 4-acre parcel on which there --
QUESTION: So it's a 4-acre parcel. And wasn't one of the trouble spots that even in prohibition what was taken was not all of the property but just the distillery where the liquor was manufactured?
MR. KNEEDLER: That was -- and the parcel on which it was situated. I think that raises -- I mean, there are separate concerns or separate protections against that possibility, either under the Eighth Amendment as the Court discussed last term, or due process limitations, or perhaps even statutory limitations --
QUESTION: But I thought that was the due process -- that was what was sought to be used here.
MR. KNEEDLER: Right. But there's not --
QUESTION: And what the Ninth Circuit relied on.
MR. KNEEDLER: There's been no -- there's no claim before the Court here that too much was taken, as it were.
QUESTION: You mean the only claim is the procedural due process.
MR. KNEEDLER: Is the procedural due process claim.
QUESTION: Well, I doubt the distillery in Dobbins was located in a 4-acre park too.
MR. KNEEDLER: Well, yes, I don't recall exactly where it was.
QUESTION: What is it that distinguishes the due process obligations of the Government and the due process obligation in a case like this? In a civil forfeiture suit, in the due process obligations of private creditors who use Government mechanisms, could a private creditor seize property simply by making an ex parte showing that there's probable cause?
MR. KNEEDLER: Well, in --
QUESTION: But why is it? I assume that the answer to that is no.
MR. KNEEDLER: Well, in Mitchell v. W.T. Grant that's essentially what the Court sustained. There was a showing by the creditor, based on detailed affidavits, and the judge made a determination of the likelihood of success. I don't think it was put precisely in terms of probable cause.
QUESTION: Likelihood of success and did W.T. Grant ratify an ex parte hearing without notice?
MR. KNEEDLER: Yes. That's -- and then -- but there was also a posting of a bond, and then a postseizure hearing. But I think the --
QUESTION: Well, does there have to be a postseizure hearing? Do you agree that there should be a postseizure hearing in this case?
MR. KNEEDLER: If the claimant requested one there could be. Claimant Good never requested a postseizure hearing. And I think with -- I think the reasons are fairly obvious. He pleaded guilty in State court to promoting a harmful drug, and the evidence that was seized in connection with the State proceedings were 87 pounds of marijuana worth many thousands of dollars and other evidence of a drug operation there. I don't think he could have realistically claimed -- affirmatively claimed either that the property wasn't used for that purpose or that he was an innocent owner.
So he did not request one. But once the in rem forfeiture proceeding is filed in court, it would be -- if the claimant desired to have a hearing, it would be easy enough to ask the Court to exercise its jurisdiction over the pending case and deliver one.
QUESTION: In W.T. Grant, was the standard higher than probable cause?
MR. KNEEDLER: It was not higher than probable cause, no. And also, let me also point out in --
QUESTION: Does probable cause mean likelihood of success or something?
MR. KNEEDLER: It means -- in the law enforcement or in the Fourth Amendment context, it means reasonable belief that a violation has occurred. And -- but the more fundamental answer to your --
QUESTION: But in the forfeiture context that should mean a reasonable belief that the asset is forfeitable, wouldn't you think?
MR. KNEEDLER: Right. And I do believe that's right. And it's forfeitable if there's a reasonable belief to -- reasonably, that the property was used for a violation of the drug laws, as there clearly was here.
But the more fundamental point, I think, in response to your question, Justice Kennedy, is that there is a basic distinction between Federal law enforcement activities -- and this was a distinction identified in Fuentes itself and in Calero-Toledo -- between law enforcement activities on the part of the Government where the Government has taken action against someone who has independently violated standards, and private debtor-creditor relations or even termination of Government benefits.
And, again, the Court made this point in Gerstein v. Pugh, where the -- in saying why a due process type hearing wasn't required, adversarial hearing. The Court said that the Fourth Amendment probable cause issue is quite different from the variable due process analysis that the Court had applied in more recent cases.
QUESTION: But this is a civil forfeiture proceeding. You began your argument with --
MR. KNEEDLER: It is a --
QUESTION: By saying that in the very first sentence.
MR. KNEEDLER: Right. Well, it is a civil forfeiture proceeding, but the Court has made clear as recently as last term in Soldal that the Fourth Amendment also governs seizures of property for -- in the civil context as well as in the criminal context.
QUESTION: Well, is there anything in Soldal that indicates that the Fourth Amendment is anything more than a minimum requirement?
MR. KNEEDLER: Well, the Court did recite the discussion in Graham v. Connor that I mentioned earlier, that the Fourth Amendment furnishes the explicit textual source for evaluating the intrusion in that case. And, of course, Soldal involved the seizure of a house.
So it seems to us instructive that the Court made that point in that very context. Now, it did not reach the due process question. But, again, all that was at issue in Soldal was whether there was a seizure at all. What would be necessary to render that seizure reasonable was not before the Court. And our submission here is that the -- that at least where there's a warrant issued on the basis of a finding of probable cause, the tradition -- the traditional way in which seizures are authorized, especially in connection with a house, that Fourth Amendment and therefore Fifth Amendment standards are satisfied.
QUESTION: Well, Graham certainly stands for the proposition, does it not, that if the Fourth Amendment covers a subject we don't go to the Due Process Clause to look for it?
MR. KNEEDLER: It does. And that's the point I was making, and so did Gerstein v. Pugh make that point, so did Baker v. McCollan, so did the GM Leasing case.
QUESTION: But that still doesn't answer the question of what's reasonable under the Fourth Amendment. You can get to the same destination under either the Fourth Amendment or the Due Process Clause --
MR. KNEEDLER: But -- but --
QUESTION: -- Depending on what you think reasonable in the Fourth Amendment means.
MR. KNEEDLER: But we think it's instructive to -- when one starts with the Fourth Amendment, that a seizure pursuant to a warrant is the standard -- is the standard procedure used in this setting.
QUESTION: It's the standard used in some settings. It's not used in the setting, traditionally, that I gave you in the earlier hypothetical. And I gather that you would support even a further hypothetical when you say it applies to civil settings as well.
If there is a statute that provides for forfeiture of all property that is the product of criminal activity, even if it wasn't used in the criminal activity and even if it's held by someone who had no part in the criminal activity, you would assert that before the malefactor who perpetrated the criminal activity has even been tried, you can move against an innocent third party, seize his house on the basis that there is probable cause that there was a crime and probable cause that this property is the product of that crime, right? That -- you would assert that.
MR. KNEEDLER: Well, that not -- that's not --
QUESTION: And you say this is the traditional Fourth Amendment reasonable --
MR. KNEEDLER: Well, no. I think seizing property to secure a judgment, for example, is not the traditional use of a warrant in the Fourth Amendment. But here we have action that is verily -- very closely aligned with the enforcement of the criminal laws.
QUESTION: But, Mr. Kneedler, in the context of warrants that are issued for building inspectors under See and Camara, refresh my recollection, are those warrants always ex parte?
MR. KNEEDLER: Yes, as far as I'm aware they are. And, in fact, the seizure --
QUESTION: And there's no right for a notice and a hearing.
MR. KNEEDLER: No. And this is -- and for reasons that are common throughout -- a common thread throughout law enforcement, and that is that in law enforcement activities, and seizures and searches are at the core of it, the Government doesn't usually tip its hand. It's not like a --
QUESTION: Those are cases where there's -- there may be hot evidence that the police are in pursuit of. Here it's 4-1/2 years later. There was -- you're not contending that in this setting there was any urgency at all?
MR. KNEEDLER: No, and -- but in the Fourth Amendment context where there is no exigency requiring an immediate seizure, the protection then is to get the warrant, which was done here. So that this Court's Fourth Amendment jurisprudence takes care of the distinction between situations requiring immediate action and those that should be submitted to a magistrate to determine whether there is probable cause for the seizure.
In response to Justice Souter's earlier question about what would have been contemplated by the Fourth --
QUESTION: But a magistrate is still quicker than notice and opportunity to be heard in advance.
MR. KNEEDLER: Absolutely. But also guards against the possibility that notice to the owner would result in destruction of evidence or even destruction of the house.
QUESTION: Mr. Kneedler, does it make any difference here that the Government did not oust the tenants or the homeowner? Is that factor?
MR. KNEEDLER: We think it makes a very substantial difference, and --
QUESTION: Now, what if the Government had come in and it had its warrant on probable cause and immediately ousted the homeowner?
MR. KNEEDLER: Well, as we mention in our brief, the Justice Department's policy is not to do that unless there would be an immediate danger to the premises or officers or neighbors. The Government will -- if the occupants do not enter into an occupancy agreement and the Government believes there's a reason to remove them, it will always go back to the court for a further court order.
QUESTION: Well, we know that sometimes policies aren't followed and what happens in those circumstances? Would the Due Process Clause perhaps require something more?
MR. KNEEDLER: It may. And, also, I think that just as a matter of course in the pending case something more would surely happen, because once there's a pending lawsuit and if the Government went back in for a further order in the pending lawsuit for eviction, I think the Government would probably routinely serve the individual with notice of that. Again, unless there was some special exigency not to give the person notice.
But here we're talking at the very threshold of the case. And at that point, for the search and the initial seizure, that's at the very point where traditional Fourth Amendment practice does not normally require advanced notice.
And going back to what --
QUESTION: If it's exigent enough it doesn't require a warrant either.
MR. KNEEDLER: Right. That's exactly right.
QUESTION: Why require it here?
MR. KNEEDLER: But --
QUESTION: Why put all your eggs in the warrant basket?
MR. KNEEDLER: Well --
QUESTION: Why don't you -- you're claiming exigency. Why not just dispense with the warrant too?
MR. KNEEDLER: Well, the Government, recognizing what this Court has said about the importance of warrants in connection with entries into houses, has a uniform policy of seeking warrants. And also it gives the public confidence that there has been an independent look and finding of probable cause in the case.
QUESTION: But no reason in principle.
MR. KNEEDLER: Well, again, that would be a Fourth Amendment question, whether the Fourth Amendment requires the warrant. We're not suggesting that the Government doesn't have to comply with Fourth Amendment standards. And we -- there's obviously a very strong argument that the Fourth Amendment would mandate a warrant.
QUESTION: But all I -- I'm sorry.
QUESTION: No, finish what you're doing.
QUESTION: I'd feel a lot more comfortable if I thought the Fourth Amendment and warrant procedures had been used in circumstances like this, and in the further circumstances where you're willing to extend it, such as where there hasn't even yet been a conviction of a crime.
MR. KNEEDLER: Well, as I say, it may be that the Fourth Amendment -- that our Fourth Amendment argument would not extend this far. But in this case the text of the Fourth Amendment itself includes this situation. The Fourth Amendment, the first clause provides for the -- provides that the people shall be secure in their persons, houses, papers, and effects.
QUESTION: That's right.
MR. KNEEDLER: And therefore the Fourth -- against unreasonable searches and seizures.
QUESTION: Against unreasonable searches and seizures. And we're talking here about what's unreasonable. And I assume that's determined by what has been traditional in our jurisprudence. And I'm not aware that a seizure of this sort has been traditional, and not being traditional, is not established to be reasonable.
MR. KNEEDLER: But the Fourth -- at the very least we think the Fourth Amendment furnishes a strong guide because this is so closely analogous to what has been traditionally done.
And unlike in Calero-Toledo, for example, where the Court held that even in that setting there was not a need for a prior hearing, as Justice O'Connor pointed out, the property here, the owner was not even dispossessed. And unlike Calero-Toledo, there was the added protection of the warrant.
I'd like to reserve the balance of my time for rebuttal, please.
QUESTION: Very well, Mr. Kneedler.
Mr. Yuen, we'll hear from you.
ORAL ARGUMENT OF CHRISTOPHER J. YUEN ON BEHALF OF THE RESPONDENTS
MR. YUEN: Mr. Chief Justice, and may it please the Court:
When the United States marshals arrived at the home of Mr. Jim Good to seize the property, they bore with them a warrant of arrest which directed them to arrest, attach, and detain in custody his home and 4 acres of land. After they executed the warrant, the marshals remained in actual control of the property. The home was being leased to tenants, but the marshals allowed them to remain, at their sufferance, subject to the signing of an occupancy agreement by those tenants. The marshals directed the tenants to pay the rents to the United States Government rather than to Mr. Good.
Mr. Good's ability to move back to the home -- the lease was up 2 months after the seizure -- would have been conditioned upon his willingness to sign an occupancy agreement with the Government. Any ability that Mr. Good had to use the property after the initial seizure was at the discretion and control of the U.S. marshals.
Today the Government asks this Court to hold for the first time that when the Government seizes private property for as yet undefined and unlimited law enforcement purposes, that it need never provide the owner with prior notice or a hearing.
QUESTION: Well, how does this case differ from Dobbins, in your judgment, Mr. Yuen?
MR. YUEN: Dobbins does not discuss the procedural requirements at all. If -- Dobbins does not, it does not have any holding about the procedural requirements. What was at issue at Dobbins was whether the property could be taken even though the owner apparently had no knowledge or consent -- knowledge of or consent to the illegal activities. The issue simply -- of what process was due the owner before the seizure simply does not arise in Dobbins.
QUESTION: So you're not questioning Dobbins.
MR. YUEN: No, Your Honor. Dobbins has no holding on the predeprivation issue whatsoever.
The Government has not provided any sense of what the limits to the rule that it would ask you to enact today are. If you enact this rule that only the Fourth Amendment controls and that only an ex parte warrant is needed when the Government wishes to seize private property, there is no reason why the Government cannot oust the occupant of a property, why they can't send the public housing tenant out into the streets, why they can't close and shut the doors of an ongoing business, all without prior notice.
QUESTION: Well, there is. If we interpret the reasonableness requirement of the Fourth Amendment is something that must be complied with and if we think this is unreasonable.
MR. YUEN: Yes, Your Honor.
QUESTION: It doesn't necessarily follow that if we adopt a Fourth Amendment analysis that everything you say follows.
MR. YUEN: It necessarily follows if you adopt the Fourth Amendment analysis set forth by the Government, which --
QUESTION: And if we say that the issuance of a warrant is both necessary and sufficient to establish reasonableness.
MR. YUEN: Yes, Your Honor. A possible holding of the Court is that the Fourth Amendment reasonableness standard applies but that under certain circumstances more than an ex parte warrant is necessary in order to make that reasonable. I can argue, certainly, that in this case more than such a warrant would be necessary.
I don't know how much that changes things, and I don't know that the Court should depart from the analysis set forth either in Calero-Toledo or in Mathews v. Eldridge to cover the situation. I don't know that a reasonableness analysis under the Fourth Amendment would be much different from the analysis that's set forth in either of those two cases.
QUESTION: How about the case, Mr. Yuen, of a warrantless arrest and then the obligation of the Government to have a probable cause determination within 48 hours? Now, my understanding is -- well, the Court has said that is ex parte. Do you feel that, too, should be subject to notice in hearing?
MR. YUEN: You're speaking of the arrest of an individual.
MR. YUEN: No, Your Honor. That issue, I believe, is -- a person is different. The arrest is --
QUESTION: Well, I would think a person, perhaps, would be entitled to more process than a piece of property.
MR. YUEN: The difference -- the distinction between a person and a piece of real property, which is one of the key issues here, is a person can flee.
QUESTION: But by hypothesis, when the person has been arrested he is detained. I mean you're not trying to seize him, you're simply trying to determine whether his seizure was accompanied by probable cause.
MR. YUEN: And the question is whether a hearing should be promptly held? Yes. Yes, Your Honor.
QUESTION: Well, but the question is ought there to be notice and hearing rather than just an ex parte determination by a magistrate?
MR. YUEN: We're -- Your Honor, I'm not familiar enough with criminal procedure to know if you're asking something that's already a settled issue. If you're asking me as a matter of personal opinion, I would say yes.
QUESTION: Well I didn't mean, you know, how you thought in the best of all possible worlds.
MR. YUEN: Yes.
QUESTION: But consistently with your argument, it seems to me that we -- that traditionally, and under Gerstein, these sort of determinations are made ex parte. And would your analysis, applying due process or some amplified rule of reason under the Fourth Amendment, require in the future that they be -- that the defendant be present and have an opportunity to challenge whether or not he was detained without probable -- with probable cause.
MR. YUEN: Mr. Chief Justice, the case I'm arguing has to do with a forfeiture of real property and the seizure of real property. The arguments and the rationale for this -- for the arguments that I'm making are limited to the factual circumstances before us. I also should mention --
QUESTION: Mr. Yuen, don't those factual circumstances include notice, at least as of the time of the conviction, that this property, all this real estate will be subject to forfeiture. And, indeed, doesn't the Federal statute provide that the title to that property vests in the United States on the commission of the act, the storage of drugs there? Not even the conviction, but on the commission of the act that gives rise to the forfeiture.
So isn't there the requirement of notice satisfied from the -- at least from the conviction, if not from the charge, that this property is going to be forfeit?
MR. YUEN: Your Honor is asking whether the owner should infer from the fact that he has been convicted that his property is subject to forfeiture.
QUESTION: From the statute that says that property belongs to the United States. That property now belongs to the United States from the time that you committed the unlawful act.
MR. YUEN: In the last term in 92 Buena Vista, this Court held that relation back only serves to vest title in the United States after the final decree of forfeiture. So the fact that the statute says that does not truly operate to make it -- make the property belong to the United States as of the act of the -- as of the moment of the commission of the crime.
QUESTION: I'm sorry. You're telling me that the statute is a nullity, the one that says title vests in the United States upon the commission of the act?
MR. YUEN: The holding in 92 Buena Vista was that that has the effect of vesting title in the United States only after there is a final decree of forfeiture. When that title vests, it is retroactively vested as of the date of the commission of the criminal act.
QUESTION: So if it's completed then, say, the rent in between would belong to the United States.
MR. YUEN: Yes. One of the other -- if -- when the decree of forfeiture is finally entered, then the United States would have -- would be declared to have a title to the property.
QUESTION: So then to that extent, at least, the Ninth Circuit was wrong when it said the remedy is -- assuming that the 5-year statute of limitations was the only timeliness limitation, the Ninth Circuit said the remedy would be interim rent. But that can't be right in accordance -- according to this statute, would it be? Because once you have the decree of forfeiture --
MR. YUEN: Before --
QUESTION: -- Then it's treated as though the tattle were in the United States from the time of the commission of the illegal act.
MR. YUEN: Before I answer that question substantively, let me just say a word about the remedy of the back rent that was awarded by the Ninth Circuit.
The Government has never challenged that portion of the judgment. If the Government wishes to say that even if they -- if they lose on the due process issue and that they should have given us a hearing, even in that event the Ninth Circuit should not have awarded the back rent as a remedy.
The Government was obliged to bring that up as a separate question on its petition for certiorari, which they have never done. They have never made that claim on any of their briefs. I pointed this out in my answering brief, that they have never made a claim that the Ninth Circuit was in error in awarding us this remedy, and they said nothing about it in their reply brief. Clearly it would have been an inappropriate time even to bring it up at the time of the briefs, because it had never been raised.
QUESTION: As far as the notice and opportunity to be heard is concerned, you didn't have any defense of innocent ownership. Was there anything other than timeliness, the statutory argument that you made? What defense would -- suppose you had had notice and opportunity to be heard. What was there other than the timeliness question?
MR. YUEN: In both the district court and the Ninth Circuit, we raised double jeopardy arguments and objection to the admissability of evidence based on the original search warrant of the property. So besides the timeliness argument, we did have other substantive defenses which were rejected by the courts below.
QUESTION: Did you have any defense factually on the merits other than the double jeopardy and the evidentiary objections?
MR. YUEN: No, we do not.
QUESTION: Did you ask for a postseizure hearing?
MR. YUEN: No, we did not. And the rules give us no provision for a postseizure hearing. The only provision that I can think of that allows you to have a postseizure hearing in civil forfeiture, aside from a motion for summary judgment, a motion to dismiss, up to the trial on the merits, is a due process claim. Which would be -- there's another standard for a postseizure due process claim.
But the Rules of Admiralty, which are at issue in -- which are -- govern these proceedings, specifically state that when property is seized under the Admiralty Rules, there has to be post -- prompt postseizure hearing unless it's seized for forfeiture by the United States Government.
Now, I take it that any district court would interpret that to mean that a postseizure hearing is not available once any actions by the United States Government for forfeiture.
QUESTION: If that -- if a prompt postseizure hearing were available, would that substantially alleviate your due process concern?
MR. YUEN: It would be an element in the equation. However, under Mathews v. Eldridge there -- the Government, we would still need to go through the analysis. And in this case the Government has no defensible justification for not giving us a preseizure hearing, and has taken away a very significant property interest from Mr. Good. I think that if -- even if we had a prompt postseizure hearing under Mathews v. Eldridge, we would still be entitled to a preseizure hearing if a court goes through the factors in Mathews v. Eldridge.
Real property really is unique in a situation like this, and it's unique for reasons that are very germane to forfeiture. The underlying rationale behind the immediate seizure in cases like Calero-Toledo and United States v. $8850 is the concept that control of the property is necessary for an in rem forfeiture. If you don't seize the property, you might lose the whole cause of action.
In real property cases the property is always going to be there. It's always available to get in rem jurisdiction. In fact, the court can obtain in rem jurisdiction without taking any actions that prejudice the rights of the owner or significantly infringe upon those rights. There was simply no reason whatsoever to seize this property.
The Government makes the argument that this seizure was for law enforcement purposes, never specified. I do not grasp what the law enforcement purposes were to seize this property 4-1/2 years after the discovery of a crime and 4 years after the conviction of its owner.
QUESTION: Well, isn't it a law enforcement purpose to penalize someone in accordance with the law for some crime they've committed?
MR. YUEN: I would agree that this has -- this serves the penal functions. This does serve a penal function of law enforcement.
QUESTION: But penal functions are not law enforcement functions?
MR. YUEN: Aside from the penal function -- and let me expand on this a little bit. The Government repeatedly -- the Government in its brief talks about law enforcement purposes. They don't talk about this being a criminal case, although the cases that they cite for the Fourth Amendment controlling use the term "criminal case." And I think this is for a real reason.
When we were arguing this case below, when I was arguing this case below, for purposes of double jeopardy argument we were claiming that this was a criminal and a penal action against Mr. Good. The Government was claiming that it was civil and remedial. In fact, the Government -- to look at this in a broader context -- has argued for at least 107 years that civil actions denominated as such by -- civil forfeitures denominated as such by Congress were civil and not criminal for the many provisions --
QUESTION: Assuming that this is a civil proceeding, as certainly I'm quite willing to do, that doesn't make it any less a law enforcement proceeding, does it, if the Government is trying to carry out a forfeiture authorized by statute?
MR. YUEN: In that sense, yes, Your Honor, it's a law enforcement proceeding. However --
QUESTION: Well, then that surely is -- if one is to resort to the Mathews against Eldridge, that surely is a governmental interest here.
MR. YUEN: There is a governmental interest involved. There -- we do not dispute that. What we dispute is that there is a governmental interest involved in taking the property without giving a prior hearing.
This is a -- this is simply not a Fourth Amendment search and seizure type warrant where the purpose is to obtain evidence or to seize contraband or to seize the instrumentalities of crime before they can be used any further. This is a seizure of a home and 4 acres of land. The purpose of this seizure is to take property away from one person and to give it to the United States Government. This is a pure -- as pure a property rights case as could be, and it is a case that has always been analyzed under the Fifth Amendment rather than the Fourth Amendment.
QUESTION: But, Mr. Yuen, Mr. Kneedler emphasized that you were not making a substantive challenge. So this is treated in the same way as contraband, the ship that carried the contraband. This is the house in which the drugs were kept. You're not making any substantive challenge. That's an underlying -- underlies much of your presentation. But you're only claim -- you're claiming is notice and opportunity to be heard, but you haven't challenged in this case that they're taking 4 acres instead of just the house.
MR. YUEN: No, that's true. But the distinction -- we emphasize that to show the difference between what is being done in this particular case and what has been done in the past under the rubric of Fourth Amendment search and seizure warrants. We're talking about an entirely different kind of animal in this case.
QUESTION: Well, I'm sorry, are you sure that -- you're acknowledging that the 4 acres are out of the case, that it makes no difference? I mean I --
MR. YUEN: No.
QUESTION: I thought you could maintain the position that there might be -- this might be a reasonable search and seizure in accordance with traditional usage if all that had been seized was the instrumentality of the crime, which would be only the house, but it does not accord with traditional usage when you seize the house and 4 acres along with it. You're not making that argument?
MR. YUEN: Oh, I'm making -- I would disagree that it would be reasonable under the Fourth Amendment to seize the entire -- to seize even the house as instrumentality.
QUESTION: Even the house. So you're not making the argument that the fact that it's a house plus 4 acres sets this apart?
MR. YUEN: I am making that argument. It does -- it sets it apart from what has been authorized under Fourth Amendment cases, certainly.
QUESTION: I thought you said you're not -- if it were -- just -- suppose it were just the house. Suppose the notice of forfeiture just included the property on which the house was located and not the surrounding property, then you have no case?
MR. YUEN: Oh, we would have the same -- we would have the same objections.
QUESTION: Well, you wouldn't have the same objections. You would have objections. I thought you were making an additional argument that even if we should mistakenly hold that that's okay, we surely wouldn't hold that you can take the 4 acres in addition.
MR. YUEN: No.
MR. YUEN: No.
MR. YUEN: We're -- I'm making the -- the argument over the extent of what is taken relates to the legal principles at issue here. And it's trying to distinguish between what the Government is taking in this case from the owner with the incidental effects upon property interests which are typically accompanied -- which typically accompany a search and seizure warrant under the Fourth Amendment, under a traditional Fourth Amendment warrant.
QUESTION: Well, isn't it possible that the scope of the seizure might to some extent depend on the facts? In other words, if some of the marijuana was in the garage then it's more justifiable to seize the garage, and if some of the marijuana seeds were out in the back yard then you're -- you can go into the open fields. Isn't there perhaps a factual issue that would be addressed in -- if you challenged the scope of the seizure, as to how -- you know, as to whether it was reasonable to take the entire parcel or not?
I don't know what the facts are. I don't think we know, as of yet. Do we just know that there was so much discovered somewhere on this parcel?
MR. YUEN: All of -- all of where the -- all of where the drugs were discovered is in the record. But that has nothing to do, in my view, with the reasonableness of this particular seizure, because -- under the Fourth Amendment. Because if we're looking at this under the Fourth Amendment, is there probable cause to seize this property because there was marijuana there 4 years earlier and the marijuana was in the trunk or it was in the car or whatever?
There's no probable cause to seize under the Fourth Amendment anymore. The evidence is much too stale. The property is not being used for a crime anymore and hasn't been used, as far as the Government knows, for 4-1/2 years.
QUESTION: Well, but that's the question of whether the 5-year statute of limitations is the only timeliness requirement or if there's another one here, and your opponent never got to talk about that subject. But that's kind of a timeliness issue, I think.
MR. YUEN: If this case were judged under a Fourth Amendment warrant analysis, you would have to say there's no probable cause that --
QUESTION: You're saying the Fourth Amendment includes a timeliness requirement. So you're not just relying on the statute for saying that this is an untimely seizure. I think that's a new argument that I hadn't heard of in the case before.
MR. YUEN: Well, it's really in response to your question about can this seizure -- can the seizure of only a certain area of the house be considered reasonable under the Fourth Amendment because the marijuana was in one area of the house. If you look at -- I emphasized the timeliness to just show the distinction between this. This is not a case where this home is being seized to either investigate a crime or to -- to --
QUESTION: It's being seized because of the -- according to the Government, a violation of the drug laws was committed on the property, and that's all you need to show.
QUESTION: And the house is therefore subject to forfeiture by reason of that.
MR. YUEN: The laws do make the house subject to forfeiture. To return, though, our issue is whether the Constitution requires prior notice and hearing before the Government seizes it. And this is --
QUESTION: Well, at that -- if we were to grant your -- accept your position, that there should be some prior hearing, what is the standard? Is the standard probable cause?
MR. YUEN: No. The Government should have to prove a reasonable likelihood of success. And the reason for this is that the purpose of a predeprivation hearing under Mathews v. Eldridge is to reduce the risk of an erroneous deprivation of property. And in a real property forfeiture case there are very significant affirmative defenses which the claimant must be allowed to show in order to reduce the risk of an erroneous deprivation.
It's not enough just for the Government to say there's probable cause to forfeit this property. There may be -- the person who's owning it may be a innocent owner. The person -- the owner may have the proportionality defense that was recognized by the Court this last term in the Austin case.
The U.S. Attorneys Office is not going to present those defenses for the claimant at a hearing. The claimant's got to be able to present those defenses or else there is a very substantial risk that there's going to be an erroneous deprivation, and a deprivation that can last for a very long time because there's no other chance -- there's no chance given in the procedures for a hearing before a trial on the merits, aside from dispositive motions.
And that may take a very long time, to have a trial on the merits, because these cases are often stayed. We're talking about a very -- possibly a very lengthy and significant infringement upon the owner's rights.
QUESTION: Mr. Yuen, were you making the argument in response to Justice Stevens' question that a Fourth Amendment -- that the Fourth Amendment authorizes nothing more than search and seizure for purposes of gathering evidence and bringing defendants to trial?
MR. YUEN: No. That would be an incomplete statement. Traditionally under the Fourth Amendment there also have been searches for and seizures of contraband, instrumentalities of trime -- of crime. Certainly it goes beyond that.
But counsel for the -- to continue with that, the Government's counsel made an interesting statement which was that a seizure to secure a judgment was not a Fourth Amendment -- was not the subject of a search -- Fourth Amendment seizure. I don't know what this seizure is other than a seizure to secure the Government -- to secure a judgment for the Government.
When you look at their justifications for seizing the home, they say things like the owner -- if we give them prior notice, the owner might torch the property himself or the property might become dissipated or damaged if we don't seize it. Those are exactly --
QUESTION: No, it's not the -- it's not to secure the judgment. It is the decision of Congress, wrongly or rightly, that that's part of the penalty, you forfeit the home where the drugs were kept. This is not -- it's not temporary security while you pay a money judgment. The Government is taking this property from you. I don't see that analogy.
I wanted to ask you about the character of the hearing that you say is constitutionally required. Suppose as part of this probable cause hearing the magistrate says okay, I'll call the owner and see what he has to say. Would that satisfy the process that's due, if we turned the probable cause hearing into a two-party affair?
MR. YUEN: I would say the owner needs to be represented by counsel because of the complexity of some of the issues that can be involved in this situation.
QUESTION: And I thought you said the standard has to be greater than probable cause.
MR. YUEN: I would also say that the standard has to be some reasonable likelihood of success.
Remember, the Government has no need to seize the property. And in response to your first comment, the reason that the Government is seizing -- the ultimate forfeiture is to punish the owner, certainly, and to take his property. But we are talking about the initial act of seizure, and apparently from the Government's briefs the justification for that is to secure the ultimate satisfaction of the Government --
QUESTION: What about preventing?
MR. YUEN: -- Or the judgment.
QUESTION: I mean you make light of it, but what about preventing somebody who's a criminal -- he's been convicted of a crime. He knows his property is forfeit for that. Why is it not a worry that he'll torch the place?
MR. YUEN: The owner can torch it anyway. The Government typically lets the owner stay on the property.
QUESTION: Well, then the Government's silly but that doesn't go to whether the statute makes sense or not. The Government is sillier than Congress thought it would be, but it still is a very sensible provision. You're dealing -- you know you're dealing with a criminal and you know that this property -- you know, it seems to me he has nothing to lose. Why doesn't that justify?
MR. YUEN: Well, Justice Scalia, I believe the fact that the Government lets the owner typically remain on the property shows that this justification is nothing but a rationalization. It's not the real reason and it does not justify the actions taken here.
QUESTION: Well, you know, rationalization -- rational basis is ordinarily enough.
QUESTION: Well, it's one thing to let a -- let the owner remain and another to let the tenant remain. The tenant might not have the same incentive to waste the property that the owner would.
MR. YUEN: Yes, Your Honor.
QUESTION: But what if in the criminal trial the whole issue was whether or not the transaction took place in this particular house, and it was litigated and determined beyond a reasonable doubt that this house was the instrumentality used in the crime? What purpose would a preceder hearing do in that -- serve in that case?
MR. YUEN: The owner --
QUESTION: Or why -- isn't it just a like a levy on execution?
MR. YUEN: The owner might still have a number of defenses, including proportionality, double jeopardy, and other defenses of a legal nature that exist in a forfeiture proceeding. Also, between the time when this conviction took place and the forfeiture, there might be intervening innocent owners that the Government doesn't even know about.
I'd like to spend just a moment on the second issue in the case which is the timeliness issue. The difference between the case we have here and the cases that the Government cites on this issue is that we're dealing with a forfeiture here which is an extraordinarily harsh, punitive, and arbitrary sanction. And because forfeitures are extremely punitive, the courts have held, including this Court, that all statutes governing forfeiture must be strictly construed in favor of the claimant and in favor of the owner of the property.
So we cited State law cases which hold that when the statute says that you must promptly move to forfeit the property, that that gives the claimant the right to have the forfeiture dismissed if the Government does not, in fact, promptly move. And all we're asking for is that this Court uphold the remand back to the district court to find out when it was that the DEA and the FBI found out about the grounds for --
QUESTION: So in every case we'll have this factual determination and dispute as to when someone in the DEA found out and when the Attorney General found out.
MR. YUEN: Well, many cases, if they are timely commenced, will not have this dispute. If they're -- certainly if they're commenced at the same time as the criminal action, which is very often the case, there will not be this issue arise.
QUESTION: Thank you, Mr. Yuen.
Mr. Kneedler, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF EDWIN KNEEDLER ON BEHALF OF THE PETITIONER
MR. KNEEDLER: Thank you, Mr. Chief Justice.
I'd like to pick up on the point counsel mentioned about what the -- in response to a question from Justice Kennedy as to what the showing would be of such a determination. He says it would have to be more than probable cause, it would have to be a showing of likelihood of success in the merits.
This point I think strongly underscores the correctness of our position. In a civil forfeiture proceeding the Government prevails by showing probable cause to believe that the property is subject to forfeiture unless the claimant responds by the preponderance of the evidence, of showing that the property was not used for illegal purposes or that he or she was an innocent owner. So the nature of the relevant inquiry in here we think strongly underscores the following of the standard Fourth Amendment requirements.
QUESTION: Mr. Kneedler, that may be true in this case, but supposing there was a proportionality argument, supposing it was a $10 million home and 2 ounces of marijuana, that arguably the owner would want to argue -- to make the point that you shouldn't seize the whole house?
MR. KNEEDLER: Well, almost everything that I recall counsel mentioned he put in terms of affirmative defenses. It seems to us strange that for the Government to carry the probable cause requirement, it has to anticipate and be prepared to rebut possible affirmative defenses before it can even take the threshold step of seizing the property at the outset.
The property is subject to forfeiture --
QUESTION: Well, even in this case you have 4 acres of land and a house on it. And so supposing the evidence was that it was a smaller amount of marijuana in a very discreet location, couldn't there be an argument about whether that justified -- it was probable cause to seize the entire tract?
MR. KNEEDLER: Well, there might ultimately be an argument on the merits. But, for example in this case, this goes to whether the acreage surrounding the houses would be subject to forfeiture. I don't understand the respondent to be claiming --
QUESTION: No, I understand.
MR. KNEEDLER: -- That the seizure of the additional acreage was the sort of thing that required notice and a hearing. He's focusing on the house and the garage, and there really can be no question as to that. Also, the statute at issue in this case provides for the forfeiture of real property including the whole of any lot used for this purpose, and he hasn't suggested that this is not a lot within the meaning of the forfeiture laws.
I'd like to go back to Gerstein v. Pugh again where the Court specifically rejected, in the Fourth Amendment context, the argument that an adversary hearing was required for the detention of an individual pending trial. The Court held that the probable cause determination has traditionally been made without an adversary hearing and that the nature of the probable cause inquiry, which does not require fine considerations and resolving of conflicting evidence but rather whether there's reasonable belief that a crime was committed, does not require an adversary hearing.
We think, as the Chief Justice pointed out, that that would follow a fortiori for the seizure of property. And particularly that's so where the -- that would carry the burden of proof on the merits.
QUESTION: Mr. Kneedler, I want to be sure you've said whatever you want to say about the timeliness issue. Is it the Government's position that the -- that there was no duty to act promptly, or merely that the failure to act promptly does not justify dismissal of the action?
MR. KNEEDLER: We say there was no duty. But our principal submission, and the one we would urge the Court to focus on, is that even if there was, that is doesn't lead to dismissal of the suit. We -- on this point we think the case is governed by the principle this Court has recognized back beginning with French v. Edwards and as recently as Brock v. Pierce County and Montalvo-Murillo.
And that is when statutes impose duties on Government agents, the failure or the negligence of a Government agent in performing that duty does not deprive them of the power to act on behalf of the Government unless the statute in question goes on to say that if the person -- identify the consequences if the person fails to perform, in this case within that period of time, that he's deprived of the power and the suit can't go forward.
In this case there's nothing in the statutory provisions on which respondent relies, which simply are internal reporting and suit filing requirements, to go on to say that the suit can't be brought if it's -- if those duties aren't --
QUESTION: You describe them as internal but, of course, they're set forth in a Federal statute.
MR. KNEEDLER: They're set forth in a Federal statute, but they're written very much in terms -- in internal terms. They say it shall be the duty of this customs officer and that officer and the Attorney General, which sounds -- in terms of the Government giving instructions to its agents about how the agents are to perform their duties. But the central point is the statute of limitations. It poses the outer limit, not these statutes.
CHIEF JUSTICE REHNQUIST: Thank you, Mr. Kneedler. The case is submitted.
(Whereupon, at 12:01 p.m., the case in the above-entitled matter was submitted.)