Opinion
Case No. 3:04-cr-003
10-29-2014
United States of America, Plaintiff, v. Dwaine Lamar Wright, Defendant.
ENTRY AND ORDER VACATING COURT ORDER OF AUGUST 8, 2014 (DOC. 219) AND DENYING PRO SE MOTION FOR RECONSIDERATION (DOC. 217), MOTION FOR CERTIFICATE OF APPEALABILITY (DOC. 223) AND MOTION TO SET ASIDE DECLARATION. (DOC. 224).
On June 25, 2014, Defendant moved the Court under Federal Rule of Criminal Procedure 41(g) for the return of a check from the United States Department of Social Security for $552 and a business checkbook. Doc. 217. The Government response, in full, stated:
Now comes the United States of America, by and through the undersigned Assistant United States Attorney, and submits that it is the United States' understanding that the Dayton Police Department disposed of the two items of property sought by Defendant (Doc. 217). Therefore, Defendant's motion is moot.Doc. 218. The Court agreed, and found the question moot. Doc. 219. Defendant moved the Court to reconsider. Doc. 220. The Court denied the motion for reconsideration, explaining that "Defendant may seek reissuance to the appropriate agency, if able or has not already done so, the United States Treasury check, No. 402458821829 dated August 1, 2003." (Notation Entry of September 15, 2014.)
Now, Defendant has filed motion requesting that the court set aside its entry of August 8, 2014, Doc. 224, and a motion for a certificate of appealability. Doc. 223.
Initially, the Court notes that "[a] motion for return of inventory is not rendered moot because the government claims it no longer has control over the property, and the district court must make evidentiary findings to determine whether or not the government retains possession of the property and, if not, how the property was disposed of, rather than relying on the government's assertions." United States v. Chambers, 192 F.3d 374, 377-78 (3d Cir. 1999).
Moreover, even if it were established that the Dayton Police department had disposed of the property, that would not be determinative of Defendant's motion:
[While], appropriate circumstances exist for a Rule 41(g) motion only if the United States possesses the property[, s]ee United States v. Marshall, 338 F.3d 990, 995 (9th Cir. 2003); United States v. Solis, 108 F.3d 722, 723 (7th Cir. 1997)[, i]n "limited circumstances," a defendant may use Rule 41(g) "as a vehicle to petition for the return of property seized by state authorities." Clymore v. United States, 164 F.3d 569, 571 (10th Cir. 1999), superseded by statute, Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, § 2, 114 Stat. 202, 208, as recognized in Kadonsky v. United States, 3 Fed. App'x 898, 904 n.6 (10th Cir. 2001). These circumstances include "actual federal possession of the property forfeited by the state," or constructive federal possession of the property: (1) where the government uses the property as evidence in the federal prosecution, or (2) where the federal government directed state officials to seize the property. Clymore, 164 F.3d at 571 (citations omitted); see United States v. Copeman, 458 F.3d 1070, 1072 (10th Cir. 2006); Solis, 108 F.3d 722-23. [But], a state's decision to defer prosecution to the United States by itself, fails to confer constructive possession of property seized during the state investigation. Copeman, 458 F.3d at 1072.Hill v. United States, 296 F.R.D. 411, 414 (E.D. Va. 2013).
Thus, the Court VACATES its ruling of August 8, 2014.
More generally,
The proper office of a Rule 41(g) motion is, before any forfeiture proceedings have been initiated, or before any criminal charges have been filed, to seek the return of property seized without probable cause, or property held an unreasonable length of time without the institution of proceedings that would justify the seizure and retention of the property. The rule can also be invoked after criminal proceedings have concluded to recover the defendant's property when the property is no longer needed as evidence—unless, of course, it has been forfeited in the course of those proceedings. Okoro v. Callaghan, supra, 324 F.3d at 490.United States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004). Wright's motion properly falls under the last category, "after criminal proceedings have concluded to recover the defendant's property when the property is no longer needed as evidence." Indeed, Wright could have filed a Rule 41(g) motion for return of property when he was sentenced on October 19, 2007.
"A court confronted with a Rule 41(e) [now Rule 41(g)] motion for the return of property filed after the close of criminal proceedings is to treat the request as a civil action in equity." United States v. Obi, 100 F. App'x 498, 499 (6th Cir. 2004) (citing United States v. Duncan, 918 F.2d 647, 654 (6th Cir. 1990)); see Brown v. United States, 692 F.3d 550, 552 (6th Cir. 2012) (noting that Rule 41(e) was redesignated Rule 41(g) in 2002 without substantive change). A district court must "properly balance[ ] the competing equities in deciding whether return [is] in order." Duncan, 918 F.2d at 654 (citations omitted). See also United States v. Barnett, 2014 WL 1413530, *1 (E.D. Ky. 2014).
Motions to return property are treated with caution and restraint, and the motion may be dismissed for lack of equity if the movant has an adequate remedy otherwise or cannot show irreparable injury. Wright & Miller, Federal Practice and Procedure, § 690. See also Industrias Cardoen, LTDA v. United States, 983 F.2d 49, 51-52 (5th Cir. 1993); Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir. 1975), United States v. Torres, 450 Fed. App'x 361, 362, 2011 WL 5570639, *2 (5th Cir. 2011).
In the instant case, Movant has not shown irreparable injury or the lack of an adequate remedy. Indeed, there is every reason to believe the Social Security Administration would issue a new check if someone were to call the Social Security Administration at 1 (800) 772-1213. See http://www.treasury.gov/services/Pages/Lost-or-Expired-Checks.aspx . It is difficult to see how Defendant has suffered any injury. According to the Social Security Handbook, "Checks are issued with the words "VOID AFTER ONE YEAR" printed across the face of the check. If you have a check that you have not cashed past the one-year time limit, you will not be able to cash it. Contact a Social Security office to have the check reissued." http://www.ssa.gov/OP_Home%2Fhandbook/handbook.01/handbook-0123.html
In any event, the motion is untimely. "Motions raised under Fed. R. Crim. P. 41(g) after criminal proceedings...have concluded are subject to a six-year statute of limitations." United States v. Sims, 376 F.3d 705, 708-09 (7th Cir. 2004).
But once the criminal proceedings or the civil forfeiture proceedings have concluded without the property having been forfeited (or the statute of limitations for bringing either type of proceeding having expired, see Mantilla v. United States, 302 F.3d 182, 186 (3d Cir. 2002); Polanco v. U.S. Drug Enforcement Administration, 158 F.3d at 654), the claimant knows that he has a present right to its return, and he shouldn't be permitted to postpone his request for its return indefinitely. For reasons similar to those we gave in [United States v.]Duke, [229 F.3d 627 (7th Cir. 2000)], the six-year statute of limitations in 28 U.S.C. § 2401(a) is appropriate in such cases, and so we shall borrow it for Rule 41(g) motions. See United States v. Wright, 361 F.3d 288 (5th Cir. 2004); United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1210 (10th Cir. 2001). The period will run from the conclusion of the criminal proceedings or civil forfeiture proceedings, or, if no such proceedings are instituted, from theUnited States v. Sims, 376 F.3d 705, 708-09 (7th Cir. 2004). See also United States v. Lorello, 2011 WL 1810581, *2 (N.D.W. Va. 2011)(calculating time from sentencing and entry of judgment). Cf. Wright & Miller, Federal Practice and Procedure § 690 ("There is no limitation on the time for a motion to return except the doctrine of laches.")(citing to United States v. Totaro, 468 F. Supp. 1045, 1047 (D. Md. 1979)(finding that a two-year delay in bringing 41(e) motion probably would have been unreasonable but for petitioner's reasonable excuse). See also United States v. Gomez, 1998 WL 255358, *3 (9th Cir. 1998)(approving two-year period for laches).
expiration of the statute of limitations for filing the criminal or civil forfeiture case, Mantilla, 302 F.3d at 186; Polanco, 158 F.3d at 654, but can be tolled if the defendant is unable despite diligent inquiry to file his claim in time.
There is some dissonance regarding when the statute begins to run. In the Tenth Circuit, "the 'date on which a claimant can reasonably be expected to inquire after property that has been seized by the United States in conjunction with criminal proceedings, but has not been the subject of criminal, civil or administrative forfeiture proceedings, is the date on which the criminal proceedings against the claimant have concluded.'" United States v. Schomaker, 2006 WL 1236841, *2 (D.N.H. 2006)(quoting United States v. Rodriguez Aguirre, 264 F.3d 1195, 1212 (10th Cir. 2001). "The Seventh Circuit, however, holds that the period runs "from the conclusion of the criminal proceedings or civil forfeiture proceedings, or, if no such proceedings are instituted, from the expiration of the statute of limitations for filing the criminal or civil forfeiture case, ... but can be tolled if the defendant is unable despite diligent inquiry to file his claim in time." Id. (quoting United States v. Sims, 376 F.3d 705, 709 (7th Cir. 2004)). By either measure, Defendant's motion is untimely.
Here, Defendant was sentenced and judgment entered on October 19, 2007. Doc. 126. A motion for reconsideration of judgment was denied on October 23, 2007. Doc. 130. He filed his motion for return of property on June 25, 2014, more than six years and eight months after judgment was entered. By any measure, Defendant's motion is filed out of time.
Because Defendant has not shown irreparable injury and because his motion is filed more than six years after judgment was entered in his case, Defendant's motion for return of property, doc. 217, is DENIED. Because the Court has vacated its August 8, 2014 order, doc. 219, Defendant's Motion to Set Aside Declaration, doc. 224, is MOOT.
Finally, Defendant has moved the Court for a certificate of appealability with regard to the Court's order of August 8, 2014, but has put forth no argument as to why it should issue. Doc. 223. Under 28 U.S.C. § 2253, certificates of appealability are required to appeal in habeas corpus proceedings and proceedings under 28 U.S.C. § 2255, neither of which apply here. In any event, the Court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, this court DENIES Defendant leave to proceed in forma pauperis on appeal. See Rule 24 of the Federal Rules of Appellate Procedure. Petitioner having failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. Motion for Certificate of Appealability, doc. 223, is DENIED.
DONE and ORDERED in Dayton, Ohio, this Wednesday, October 29, 2014.
s/Thomas M. Rose
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE