Cite as U.S. v. Thirteen Machine Guns, 726 F.2d 535 (9th Cir. 1984)

             United States of America, Plaintiff-Appellee,

                                  v.

Thirteen (13) Machine Guns and One (1) Silencer, and J. Curtis
Earl, real party in interest, Defendants-Appellants.

                            No. CA 81-5923.

            United States Court of Appeals, Ninth Circuit.

                 Argued and Submitted June 11, 1982.  

                  Originally Decided Oct. 6, 1982.  

                        Decided Feb. 22, 1984.

      Paul A. Katz, Asst. U.S. Atty., Phoenix, Ariz., David B.
Smith, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

      Murray Miller, Phoenix, Ariz.,for defendants-appellants.

      Appeal from the United States District Court for the District
of Arizona.

      Before FARRIS, and CANBY, Circuit Judges, and CURTIS,*
District Judge.

      CANBY, Circuit Judge:

      Our previous decision in this civil forfeiture action is
reported at 689 F.2d 861 (9th Cir. 1982), where the facts are fully
set forth.  There we reversed a summary judgment in favor of the
government on the ground that the government's delay in instituting
judicial forfeiture proceedings violated due process.  We relied
substantially on the authority of United States v. Eight Thousand
Eight Hundred Fifty Dollars, 645 F.2d 836 (9th Cir. 1981)
("$8,850").  Because the Supreme Court had granted certiorari in
$8,850, we extended the time for the government to petition for
rehearing of this appeal until the Supreme Court had decided
$8,850.

      On May 23, 1983, the Supreme Court entered its decision in
$8,850.  --- U.S. ---, 103 S.Ct. 2005, 76 L.Ed.2d 143.  The
government subsequently filed its petition for rehearing and
claimant Earl filed a response to that petition.  In light of the
Supreme Court's decision in $8,850, we now grant the petition for
rehearing, withdraw our previous decision, vacate the summary
judgment of the district court, and remand for further proceedings.

      In $8,850, the Supreme Court held that Barker v. Wingo, 407
U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), supplied the
appropriate test for determining whether delay in initiating
judicial forfeiture proceedings violated due process.  103 S.Ct. at
2012.  Barker requires a weighing of four factors: the length of
delay, the reason for the delay, the claimant's assertion of his
right, and prejudice to the claimant.  Id.  Applying these factors
in $8,850, the Supreme Court held that an 18-month delay, "quite
significant" in itself, did not violate due process.  Id.  The
Court found to be weighty two reasons for delay: the initiation and
determination of a petition for administrative remission, and the
subsequent pendency of criminal proceedings.  The Court was
impressed with the district court's assessment that the government
had proceeded with "all due speed."  Id. 103 S.Ct. at 2014.  The
Court also relied on the fact that the claimant had never requested
the institution of judicial proceedings, although she had requested
a speedy determination of her petition for administrative
remission.  Finally, the Court noted that there was no showing of
prejudice to the claimant in that she had not shown that "the delay
affected her ability to defend the propriety of the forfeiture on
the merits."  Id.

      In the present case the delay in instituting judicial
forfeiture proceedings was approximately 21 months.  The government
contends, as it did originally, that this delay was justified by
the pendency of criminal proceedings.  The district court
apparently agreed, because it held that the delay was "not
constitutionally impermissible."  We originally reversed, because
we were of the view that the pendency of criminal proceedings was
not a sufficient justification for such a delay, even though the
claimant had never requested a prompt judicial determination.  689
F.2d at 864.  The subsequent Supreme Court decision in $8,850
clearly rejects such reasoning and requires that we withdraw our
decision reversing the district court.

      On this record we cannot, however, simply affirm the judgment
of the district court.  The Supreme Court in $8,850 held that the
pendency of a criminal proceeding was certainly a factor to be
weighed in assessing the permissibility of delay, but it also held
that "the pendency of a trial does not automatically toll the time
for instituting a forfeiture proceeding."  103 S.Ct. at 2013-14. 
It is clear that the delay, along with other factors in the Barker
v. Wingo analysis, are initially to be weighed by the district
court.

      In this case the district court undertook no Barker v. Wingo
analysis for the very good reason that the law of this circuit did
not require it and the Supreme Court had not yet decided $8,850. 
It is now clear, however, that the Barker analysis is the governing
test.  The record on summary judgment, developed as it was without
reference to the Barker v. Wingo test, does not permit us to apply
that test in the first instance, nor do we think that it would be
appropriate to do so.  The weighing is initially a matter for the
district court, upon such record as it deems appropriate, with the
result to be set forth in a manner to permit subsequent review.  We
therefore vacate the judgment of the district court and remand for
further proceedings in light of $8,850.

      REHEARING GRANTED; PRIOR DECISION WITHDRAWN; JUDGMENT OF THE
DISTRICT COURT VACATED; CASE REMANDED.

                               FOOTNOTES

* The Honorable Jesse W. Curtis, United States District Judge for
the Central District of California, sitting by designation.