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holding that notice of administrative forfeiture sent to counsel for defendant satisfied the requirements of due process
Summary of this case from Akin v. United StatesOpinion
Civil No. 3:03-CV-2356-H.
May 25, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner's Motion for Return of Property Pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, filed October 6, 2003; Respondent's Motion to Dismiss, filed March 22, 2004; Petitioner's Response to Respondent's Motion to Dismiss, filed April 13, 2004; and Respondent's Reply to Petitioner's Response to the Motion to Dismiss, filed April 26, 2004. For the following reasons, Petitioner's motion for return of property is DENIED, and Respondent's motion to dismiss is GRANTED in part and DENIED in part.
I. Background
Petitioner Elias Arredondo ("Arredondo") seeks the return of certain property that Respondent United States of America ("United States") seized during his arrest and during the subsequent search of his residence. Specifically, Arredondo seeks the return of $11,829.77 in United States currency, two firearms, a digital pager, three notebooks, long distance telephone cards, photographs, and miscellaneous documents.
On October 15, 1997, the Drug Enforcement Administration ("DEA") arrested Arredondo at his place of business in Grand Prairie, Texas, pursuant to an arrest warrant out of the United States District Court for the Western District of Tennessee. During a search of Arredondo's person, DEA agents seized $1,024.77 in United States currency, a digital pager, a notebook, and long distance telephone cards. According to the United States, Arredondo consented to a search of his residence at the time of his arrest. During the ensuing search of Arredondo's residence, DEA agents seized an additional $10,805.00 in United States currency, a semi-automatic pistol, a revolver, two notebooks, long distance telephone cards, photographs, and miscellaneous documents.
Arredondo ultimately pleaded guilty to possession with intent to distribute a controlled substance (151 kilograms of cocaine) and received a sentence of 262 months imprisonment.
On November 24, 1997, by certified mail, return receipt requested, the DEA sent written notice to Arredondo that it had seized the United States currency and that it had initiated forfeiture proceedings against the United States currency. The DEA sent this notice to: (1) Arredondo's home address; (2) Arredondo's business address; (3) Arredondo's attorney's address; and (4) the Federal Detention Center in Seagoville, Texas. The DEA also published the notice for three consecutive weeks in the USA Today. Pursuant to the terms of the notice, Arredondo had until December 23, 1997, to file a claim and cost bond to challenge the forfeiture of the United States currency. Arredondo filed a claim and cost bond on January 7, 1998, which was denied as untimely on February 4, 1998. Arredondo unsuccessfully challenged this denial through the DEA's administrative procedures.
Although Arredondo was initially confined in the Federal Detention Center in Seagoville, he was transferred to the Federal Detention Center in Memphis, Tennessee, in early November 1997.
With respect to the two firearms, the United States presents evidence that the Irving Police Department-not the DEA-took custody of the firearms and eventually destroyed them pursuant to a state court order. With respect to the other seized items, i.e., the digital pager, the three notebooks, the long distance telephone cards, the photographs, and the miscellaneous documents, the United States presents evidence that the DEA destroyed those items on October 21, 1998, in accordance with the DEA policy for non-drug evidence.
Arredondo initiated the instant action on October 6, 2003. After the United States Magistrate Judge authorized Arredondo to proceed in forma pauperis and ordered service of process, the United States filed the instant motion to dismiss.
II. Legal Standards
Rule 41(g) of the Federal Rules of Criminal Procedure provides:
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
FED. R. CRIM. P. 41(g). Once the United States has completed an administrative forfeiture of the property, however, "the district court lack[s] jurisdiction to review the forfeiture except for failure to comply with procedural requirements or to comport with due process." United States v. Schinnell, 80 F.3d 1064, 1069 (5th Cir. 1996). In determining whether notice comported with due process, a court looks to whether the notice was "`reasonably calculated under all the circumstances' to apprise petitioner of the pendency of the . . . forfeiture." Dusenbery v. United States, 534 U.S. 161, 168 (2002). Finally, if the United States has destroyed the property, a petitioner may not seek monetary relief pursuant to Rule 41(g) but may state a claim pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See Pena v. United States, 157 F.3d 984, 986-87 (5th Cir. 1998) (reasoning that Rule 41(e), the predecessor to Rule 41(g), did not constitute a waiver of sovereign immunity for purposes of seeking monetary damages).
III. Analysis
As noted above, Arredondo seeks the return of $11,829.77 in United States currency, two firearms, a digital pager, three notebooks, long distance telephone cards, photographs, and miscellaneous documents. The Court will organize its analysis into three parts: (1) the currency; (2) the firearms; and (3) the miscellaneous items.
A. The Currency
Arredondo contends that he is entitled to the return of $11,829.77 in United States currency because: (1) the DEA acquired the currency through an unconstitutional search and seizure, and (2) the DEA failed to give adequate notice of the forfeiture proceedings it had instituted against the currency. Because the DEA has completed the administrative forfeiture of the currency, the Court lacks jurisdiction to consider whether the DEA acquired the currency through an unconstitutional search and seizure. See United States v. Schinnell, 80 F.3d 1064, 1069 (5th Cir. 1996) (noting that, once the United States has completed an administrative forfeiture of the property, "the district court lack[s] jurisdiction to review the forfeiture except for failure to comply with procedural requirements or to comport with due process"). Thus, Arredondo's first contention is without merit.
Arredondo's second contention, i.e., that the DEA failed to give adequate notice of the forfeiture proceedings, must be examined to determine whether the notice was "`reasonably calculated under all the circumstances' to apprise petitioner of the pendency of the . . . forfeiture." Dusenbery v. United States, 534 U.S. 161, 168 (2002). The Court concludes that it was so reasonably calculated. It is not disputed that the DEA sent written notice of the forfeiture proceedings, via certified mail, return receipt requested, to: (1) Arredondo's home address; (2) Arredondo's business address; (3) Arredondo's attorney's address; and (4) the Federal Detention Center in Seagoville, Texas. (R.'s App. at 2-4, 6-8, 12-31, 74-93.) It is also not disputed that the DEA published the notice for three consecutive weeks in the USA Today. (R.'s App. at 3-4, 8, 32-34.) Although there is some question as to whether the DEA could have reasonably notified Arredondo at his home address, at his business address, or at the Federal Detention Center in Seagoville, the Court concludes that the DEA's notice to Arredondo's attorney, Calixtro Villareal, satisfied the requirements of due process. By Arredondo's own admission, Mr. Villareal represented him in Dallas in the underlying criminal proceedings in October and November 1997, the very months in which the DEA seized the currency and sent notice of the forfeiture. (P.'s Resp. at 9.) Given that the DEA seized the currency in the Northern District of Texas, the Court concludes that the DEA's notice to Mr. Villareal was "reasonably calculated" to notify Arredondo of the forfeiture proceedings. Accordingly, Arredondo's motion for return of the currency is DENIED, and the United States' motion to dismiss is GRANTED as to the currency.
Arredondo was incarcerated at the Federal Detention Center in Memphis at the time the DEA mailed the notice to his home address, business address, and the Federal Detention Center in Seagoville.
The United States presents evidence that Mr. Villareal's office received the notice of the forfeiture proceedings on December 3, 1997. (R.'s App. at 3, 7, 27, 89.)
B. The Firearms
In his motion, Arredondo contends that he is entitled to the return of his two firearms because the DEA acquired them through an unconstitutional search and seizure. (P.'s Mot. at 4-5.) In his response to the motion to dismiss, upon learning in the motion to dismiss that the City of Irving had destroyed the firearms, Arredondo contends that he is entitled to monetary damages due to the destruction of the firearms. (P.'s Resp. at 13-14.) These contentions are without merit. Arredondo has not brought suit against the City of Irving. The United States presents evidence that the City of Irving took possession of the firearms, forfeited the firearms, and destroyed the firearms pursuant to a state court order. (R.'s App. at 106, 112, 113-14, 115-27.) Thus, Arredondo has not brought suit against the correct party. Accordingly, Arredondo's motion for return of the firearms is DENIED, and the United States' motion to dismiss is GRANTED as to the firearms.
C. The Miscellaneous Items
In his motion, Arredondo contends that he is entitled to the return of his digital pager, three notebooks, long distance telephone cards, photographs, and miscellaneous documents because the DEA acquired them through an unconstitutional search and seizure. (P.'s Mot. at 4-5.) In his response to the motion to dismiss, upon learning in the motion to dismiss that the DEA had destroyed the items, Arredondo contends that he is entitled to monetary damages due to the destruction of the items. (P.'s Resp. at 13-14.) It is well settled that a petitioner cannot claim monetary damages for destroyed property in a motion for return of property pursuant to Rule 41(g). See Pena v. United States, 157 F.3d 984, 986-87 (5th Cir. 1998). However, it is equally well settled that a petitioner must be given an opportunity to amend his or her complaint to state a claim for monetary damages pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), where, as here, the petitioner moves for the return of property and the United States responds that it has destroyed the property. See id. Accordingly, Arredondo's motion for return of the miscellaneous items is DENIED, the United States' motion to dismiss is DENIED as to the miscellaneous items, and Arredondo shall be given an opportunity to amend his complaint.
IV. Conclusion
For the foregoing reasons, Arredondo's motion for return of property is DENIED, and Respondent's motion to dismiss is GRANTED in part and DENIED in part. Arredondo is DIRECTED to file an Amended Complaint, consistent with this Memorandum Opinion and Order, no later than noon, June 30, 2004. Such Amended Complaint must be limited to a claim for monetary damages pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for the United States' destruction of Arredondo's digital pager, three notebooks, long distance telephone cards, photographs, and miscellaneous documents.
SO ORDERED.