Opinion
01 CIV. 1657 (DLC)
November 15, 2001
Charles Michael Kee, Pro Se, Lewisburg, PA.
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. ("Rule 41(e)"), for an order directing the return of property seized when he was arrested in 1998. Although Kee filed the motion under his criminal case number, the motion was docketed as a civil complaint filed in a separate action, presumably because Kee had already been sentenced. Because Kee's appeal from his sentence was still pending, however, the Court addressed Kee's motion as a motion under Rule 41(e) and denied the motion on August 8, 2001. Kee now moves to amend or alter that decision pursuant to Rule 59(e), Fed.R.Civ.P., arguing that this motion should not have been treated as a Rule 41(e) motion. For the reasons set forth below, the motion is denied.
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).
DISCUSSION
The standard for a motion to alter or amend a judgment under Rule 59 (e), Fed.R.Civ.P., 15 the same as the standard for a motion for reconsideration under Local Civil Rule 6.3. See Cohen v. Koenig, 932 F. Supp. 505, 506 (S.D.N.Y. 1996). Thus, a motion pursuant to Rule 59 (e) should be granted only where the moving party demonstrates that the Court has overlooked factual matters or controlling decisions that were presented to it on the underlying motion. See Local Rule 6.3; Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Cohen, 932 F. Supp. at 506-507 (S.D.N.Y. 1996). Courts narrowly construe this standard and apply it strictly against the moving party so as to "dissuade repetitive arguments on issues that have already been considered fully by the court." Caleb Co. v. E.I. DuPont De Nemours Co., 624 F. Supp. 747, 748 (S.D.N.Y. 1985). Consequently, the moving party may not "advance new facts, issues or arguments not previously presented to the Court."Morse/Diesel, Inc. v. Fidelity Deposit Co. of Maryland, 768 F. Supp. 115, 116 (S.D.N.Y. 1991). The decision to grant or deny the motion is within the sound discretion of the district court. See Devlin v. Transportation Communications Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999) (citingMcCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
Even though Kee originally brought this motion pursuant to Rule 41 (e), he now contends that Rule 41(e) does not apply to post-judgment actions for the return of personal property. Kee argues that once a defendant has been convicted and sentenced, the Court lacks jurisdiction to consider a motion under Rule 41(e). Kee did not make this argument in his original motion, and it is therefore not an appropriate basis for a motion to amend the judgment. In any event, the arguments Kee now presents do not establish that the August 8 ruling was in error.
The cases now cited by Kee primarily concern actions in which the criminal proceedings have concluded and civil forfeiture proceedings are pending. In those cases, courts have held that district courts do not have jurisdiction under Rule 41(e). See, e.g., United States v. Price, 914 F.2d 1507, 1511 (D.C. Cir. 1990); United States v. Hernandez, 911 F.2d 981, 983 (5th Cir. 1990); United States v. Rapp, 539 F.2d 1156, 1160 (8th Cir. 1976). Here, by contrast, Kee's criminal proceedings have not concluded and the Government has not instituted civil forfeiture proceedings. Rather, the Government is holding Kee's property for evidentiary purposes while Kee's appeal of his criminal conviction is pending. Thus, as set forth in the August 8 Opinion, Kee's Rule 41(e) motion is premature. See United States v. Saunders, 957 F.2d 1488, 1495 (8th Cir. 1992) (Rule 41(e) motion premature when criminal appeal is pending); Podlog v. United States, No. 92 Cr. 374 (JFK), 1996 WL 403029, at *2 (S.D.N.Y. July 18, 1996) (Rule 41(e) motion premature when Government needs property as evidence in ongoing proceedings)
Kee further argues that the adjudication of his motion under Rule 41 (e) violated his due process rights because he was not given the opportunity to "to defend upon terms as would suffice in a criminal matter." Specifically, Kee argues that the Court erred when it first construed his motion as commencing a civil action and ordered the parties to respond under the Federal Rules of Civil Procedure, and then adjudicated the matter under Rule 41(e). To the extent Kee argues that he was entitled to a hearing pursuant to Rule 41(e), that argument is without merit. Rule 41(e) states that "[t]he court shall receive evidence on any issue of fact necessary to the decision of the motion." Fed.R.Crim.P. 41(e) (emphasis supplied). With respect to motions under Rule 41(e), "evidentiary hearings should not be set as a matter of course, but only when the petition alleges facts which if proved would require the grant of relief." Grant v. United States, 282 F.2d 165, 169 (2d Cir. 1960) Because there were no facts in dispute regarding Kee's motion for the return of his property, a hearing was unnecessary. Moreover, by considering post-judgment Rule 41(e) motions as civil complaints, courts have not recognized any substantive or procedural differences between the two. See, e.g., United States v. Guzman, 85 F.3d 823, 830 (1st Cir. 1996) (civil complaint serves as "functional equivalent" of a Rule 41(e) motion); United States v. Giovanelli, 998 F.2d 116, 118-19 (2d Cir. 1993); Onwubiko v. United States, 969 F.2d 1392, 1395 (2d Cir. 1992); Lovelace v. United States, No. 00 Civ. 1274 (LTS), 2001 WL 984686, at *1 n.l (S.D.N.Y. Aug. 27, 2001).
In any event, even if Kee's motion had been considered as a civil complaint, Kee has not shown that he is entitled to the property during the pendency of his criminal appeal. The Government has represented that it will return certain property to him now, and the rest of the property to him after Kee's criminal case has concluded. See Podlog, 1996 WL 403029, at *2; Fed.R.Crim.P. 41 advisory committee's note.
Kee has failed to demonstrate that the Court overlooked any factual matters or controlling decisions previously presented to it. Consequently, Kee's motion to amend or alter the judgment pursuant to Rule 59(e), Fed.R.Civ.P., is denied.
CONCLUSION
For the reasons stated, plaintiff's motion to amend or alter the judgment is denied.
SO ORDERED: