Opinion
01 CIV. 1657 (DLC)
August 9, 2001
Charles Michael Kee, Pro Se.
Christine Chi, Office of the United States Attorney for Defendant.
MEMORANDUM OPINION AND ORDER
On February 26, 2001, plaintiff pro se Charles Kee ("Kee") filed a motion pursuant to Rule 41(e), Fed.R.Crim.P., for an order directing the return of property seized when he was arrested in 1998. The Government opposes the motion. For the reasons stated below, plaintiff's motion is denied.
Although plaintiff filed this motion under his criminal case number, the motion was docketed as a civil complaint filed in a separate action, presumably because plaintiff had already been sentenced. Because plaintiff is currently appealing his sentence, the Court will address Kee's motion as a motion under Rule 41(e), Fed.R.Crim.P. Compare Weng v. United States, 137 F.3d 709, 711 n. 1 (2d Cir. 1998) (when a Rule 41(e) motion is filed after the termination of a criminal proceeding, the motion is treated as a civil complaint).
Apparently because this motion was docketed as a civil complaint, the Government moved to dismiss the action for lack of subject matter jurisdiction and for failure to state a claim, or, alternatively, for summary judgment. In response to the Government's motion to dismiss, plaintiff submitted a "Motion to Strike Insufficient Defense Pursuant to Fed.R.Civ.P. Rule 12(f)" and a "Motion for Summary Judgment Pursuant to Fed.R.Civ.P. Rule 56(a)." The Court construes plaintiff's motions both as memoranda in opposition to the Government's motion and as separate motions.
BACKGROUND
On July 7, 1998, Kee was arrested by law enforcement officers, who also executed a federal search warrant. The Government seized property from Kee's apartment and from Kee himself. On June 30, 2000, Kee entered a guilty plea to several charges, including racketeering, conspiracy to distribute crack cocaine, and conspiracy to murder. He was sentenced on December 7, 2000, principally to 480 months' imprisonment.
On December 11, 2000, Kee appealed his conviction to the United States Court of Appeals for the Second Circuit. Kee's appeal is now pending.
On February 26, 2001, Kee filed the instant motion seeking the return of property seized from his person at his arrest, namely a gold watch, a beeper, a lighter, a wallet with an identification card and papers, a hat, jewelry, and keys. In a subsequent motion, Kee also requests the return of "cellphones" and "$2000 in cash."
The Court's Pro Se Office received Kee's motion on January 10, 2001, but it was not filed until February 26, 2001.
Although Kee states that $2000 was seized from him, the Government represents that the amount seized from Kee was $1000.
DISCUSSION
Rule 41(e), Fed.R.Crim.P. provides in pertinent part: "[a] person aggrieved . . . by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property." A motion for the return of property "may be denied if `the government's need for the property as evidence continues.'" Podlog v. United States, No. 92 Cr. 374(JFK), 1996 WL 403029, at *1 (S.D.N.Y. July 18, 1996) (quoting United States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir. 1991)). "If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable." Fed.R.Crim.P. 41 advisory committee's note.The Government has made a reasonable request to retain the items requested by Kee until the resolution of Kee's appeal, after which time the Government represents that it will return the items to Kee. The Government represents that all the items requested by Kee, except for the beeper, have evidentiary value. Specifically, the Government asserts that, if the Court of Appeals were to reverse Kee's conviction and a trial were to take place, it would offer proof that the watch and jewelry seized from Kee are proceeds of robberies. The Government also asserts that the papers in Kee's wallet would corroborate testimony that Kee and others sold jewelry taken during robberies. Moreover Government states that the red lighter and hat would demonstrate Kee's association with the "Bloods" gang, and the keys would show that Kee had control over a closet which contained, among other things, firearms, handcuffs, and drug paraphernalia. Kee has not disputed any of these statements. Further, the Government represents that these items will be returned to Kee at the conclusion of the criminal proceedings in his case. Consequently, Kee's Rule 41(e) motion for the return of property seized from him is premature. See Podlog, 1996 WL 403029, at *2.
The Government concedes that the beeper has no evidentiary value and states that it will be returned to Kee "at a mutually convenient time."
Kee also argues that the Government did not provide him with adequate notice of the property seizure. Kee does not argue, however, that the original seizure of the property was unlawful. The Government has not instituted forfeiture proceedings and represents that it will return the property to Kee at the conclusion of his criminal proceedings.
The case on which Kee relies do not require a different result. For example, United States v. Mora, 955 F.2d 156 (2d Cir. 1992), involved the return of seized property that the Government had lost. In Mora, unlike the situation here, no other proceedings were pending and the Government did not contend that the items had any evidentiary value, constituted contraband, or were the fruits of any illegal activity. Id. at 157. In the other cases cited by Kee, the criminal proceedings had ended and no appeal was pending. See e.g., Weng v. United States, 137 F.3d at 710-11;Boero v. Drug Enforcement Admin., 111 F.3d 301, 303 (2d Cir. 1997);Onwubiko v. United States, 969 F.2d 1392, 1395 (2d Cir. 1992).
CONCLUSION
For the reasons stated, plaintiff's motion for return of property is denied. The Clerk of Court shall close the case.
SO ORDERED: