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After a 67-year-old grandfather spent several months in jail for marijuana the U.S. government inadvertently sold him, he sued. On Monday, a panel of Ninth Circuit U.S. Court of Appeals judges said the government’s defense of the suit is laughable. “Although rare, on occasion we see arguments that simply fail the straight-face test,” wrote Judge Kim McLane Wardlaw. “In asserting the detention of goods exception as its defense, rather than compensating a plaintiff it has seriously wronged, the United States thumbs its nose at its obligation to see that justice is done,” she added. She was joined in Cervantes v. United States, 03 C.D.O.S. 4562, by Judge Alex Kozinski and Senior Judge James Browning. In 1999, Tijuana auto parts distributor Jose Cervantes bought a car from the U.S. Marshals Service at an auction of cars seized in border-related criminal activity. Cervantes’ new purchase had been used to smuggle illegal immigrants. What the government didn’t know was that the car was also used to smuggle drugs. Unfortunately for Cervantes, he found out when he crossed the border to buy cheap gas. He had done it several times since buying the car, but this time it ended up being a costly trip. Drug dogs found 119 pounds of marijuana hidden in the car’s bumpers. Cervantes pleaded his innocence, but ended up spending 3 1/2 months in prison before his defense attorney convinced the government that, because the marijuana had degraded and the metal panels welded over it had already started to rust, the contraband probably didn’t belong to Cervantes. He sued for unlawful arrest and negligence. U.S. District Judge Judith Keep threw the case out when the government asserted that it was immune from suit. Though Monday’s panel affirmed Keep’s dismissal of claims related to the arrest, it reinstated Cervantes’ claim that the government was negligent in selling him a car loaded with contraband. According to Cervantes’ lawyer, San Diego’s Stephen Estey of Estey & Bomberger, the panel was furious at the government for its quixotic defense — that this case is similar to others where the government is immune from suits involving damage to seized property. Judge Kozinski “blasted them,” Estey said. “He told them he was embarrassed for the government.” The panel found the argument so embarrassing, Wardlaw noted in her opinion, that the parties were told at oral argument to try to reach a settlement. But Estey claims the U.S. attorney’s office told him they couldn’t understand why Cervantes might be entitled to damages. “With that mindset it wasn’t going to work,” Estey said. “Maybe they’ll reconsider.” The San Diego U.S. attorney’s office did not return a phone call seeking comment.

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