Opinion
No. 07-4421-cv.
February 19, 2009.
UPON DUE CONSIDERATION of this appeal from a judgment of the U.S. District Court for 4 the Eastern District of New York (Johnson, J.) it is ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED.
For Plaintiff-Appellant: Cheryl J. Sturm, Chadds Ford, PA.
For Defendant-Appellee: Catherine M. Mirabile (Varuni Nelson and Kathleen A. Nandan, Assistant United States Attorneys, of counsel), for Benton J. Campbell, United States Attorney, Eastern District of New York, New York, N.Y.
PRESENT: HON. JOHN M. WALKER, JR., HON. GUIDO CALABRESI, HON. SONIA SOTOMAYOR, Circuit Judges.
Plaintiff-Appellant John Ruotolo was indicted, and later convicted, for his role in a drug conspiracy. At the time of his arrest in 1988, police seized from his home a variety of items, including collections of guns and coins. The coin collection was administratively forfeited in 1990, and the gun collection was turned over to Ruotolo's brother in 1991. Having previously and unsuccessfully challenged his conviction and sentence, United States v. Kon Yu-Leung, 51 F.3d 1116 (2d Cir. 1995), Ruotolo now seeks either the return of the collections or money damages from the Government. He appeals from a judgment of the U.S. District Court for the Eastern District of New York (Johnson, J.) dismissing his case on the ground that the court lacked subject matter jurisdiction over his claims because the Government represented that the seized property was no longer available to be returned, and sovereign immunity barred any claims for money damages. Ruotolo appeals those determinations.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Under Federal Rule of Criminal Procedure Rule 41(g), "[a] person aggrieved . . . by the deprivation of property may move for the property's return." However, "Rule 41(g), which simply provides for the return of seized property, does not waive the sovereign immunity of the United States with respect to actions for money damages relating to such property." Adeleke v. United States, 355 F.3d 144, 151 (2d Cir. 2004). Thus a court can order the return of property that is in the hands of the Government, but cannot order the Government to pay money damages if the property has been disposed of, for example through forfeiture. This rule applies to Ruotolo's claims, and the District Court therefore properly dismissed his claims for lack of jurisdiction.
Ruotolo filed his request under Rule 41(e). In 2002, Rule 41(e) was redesignated Rule 41(g), and amended for style only. Adeleke, 355 F.3d at 147 n. 1.
Ruotolo's claims are barred by sovereign immunity even though he initially moved for return of his property in 1988, during the pendency of the criminal proceedings against him, because he did not establish that the forfeiture was so "grossly disproportionate" as to violate the Eighth Amendment to the United States Constitution. See Von Hofe v. United States, 492 F.3d 175, 183 (2d Cir. 2007). Ruotolo also does not claim on appeal that the specific forfeiture proceeding employed by the Government in this case was in any way improper or violated his right to due process. See, e.g., U.S. (Drug Enforcement Agency) v. One 1987 Jeep Wrangler Auto., 972 F.2d 472, 480 (2d Cir. 1992) (holding that, where property has already been administratively forfeited, a court's review under Rule 41(g) is "limited to determining whether the agency followed the proper procedural safeguards when it declared [claimant's] property summarily forfeited").
We note that the Government claims in its brief that Ruotolo "ignores the substance of the October 1988 motion in describing it as a motion for return of property" because "[i]t is apparent from a review of the October 1988 motion that it is a motion to suppress." But that description is somewhat misleading, as Ruotolo's 1988 motion sought both the suppression of evidence and the return of property. However, the Government's brief ignores Ruotolo's latter request by selectively quoting his 1988 motion. For instance, Ruotolo's Notice of Motion announced that he intended to move for an order directing his property "be returned to him and that it be suppressed as evidence against him in any criminal proceeding," but the Government describes it to us in its brief as merely "requesting that the property seized on March 13, 1988, `be suppressed as evidence against him in any criminal proceeding.'" Similarly, the Government describes Ruotolo's memorandum of law in support of the motion as "asserting that the property was seized in violation of Plaintiff's constitutional rights and therefore should be `suppressed as evidence,'" when the memorandum in fact said that Ruotolo's property "should be returned to him and suppressed as evidence." The memorandum further emphasized that the "immediate return of this property is necessary to preclude forfeiture." Although the District Court did not address Ruotolo's request for return of his property in ruling on his 1988 motion (likely because that request should have more properly been brought in a 41(g) motion and not in conjunction with a motion to suppress), we think the Government could have exercised greater care in quoting the record, in order to avoid such potentially misleading statements.
The Government argues, and the District Court found, that the coin collection Ruotolo seeks to have returned is not a fungible good, since "[a]lthough the coins are undoubtedly `currency' in the strictest sense of the term, the coins in the collection derive the bulk of their value from their status as collector's items." The District Court did not reach what was then the "open question as to whether Rule 41(g) compels the return [of] seized currency." Our Court has since answered that question: "Once seized currency has been disbursed and is no longer available, a claim for its return is analogous to any Rule 41(g) claim for the return of tangible property that is no longer at hand: such claims are jurisdictionally barred by the principle of sovereign immunity." Diaz v. United States, 517 F.3d 608, 613 (2d Cir. 2008). As a result, even if the coin collection could be considered a fungible good — currency, that is — we would have no jurisdiction to order the Government to replace it with coins that have the same face value.
We have considered the remainder of Ruotolo's claims and find them meritless. Accordingly, we AFFIRM the decision of the District Court. We will HOLD the mandate, however, until the Government provides the Court, within two weeks of this Order, with an affidavit by a person with personal knowledge, or other competent proof and evidence, supporting its representation to the District Court that it and its agencies no longer possess the coins and that Ruotolo's brother took possession of the guns. Such evidence, though not required to effectuate forfeiture or transfer of the property in the first instance, would establish that forfeiture or other transfer of the property has already occurred, and therefore that the government no longer possesses the property in question.