Opinion
Case No. 3:04-cr-086(2)
03-05-2014
UNITED STATES OF AMERICA, Plaintiff, v. RUDOLPH RHABURN aka ANTWON LAMAR KING, Defendant.
JUDGE WALTER H. RICE
DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN
PART DEFENDANT'S MOTION FOR RETURN OF PROPERTY (DOC.
#339); MOTION SUSTAINED AND GOVERNMENT ORDERED TO
RETURN EXHIBITS N-10, N-11, N-12, N-13, N-14, N-15, N-17, and
N-18; MOTION OVERRULED WITH RESPECT TO EXHIBIT N-4
Following a jury trial, Defendant Rudolph Rhaburn was convicted of conspiracy to distribute and possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 841 (a)(1). He was sentenced to 121 months in prison. This matter is currently before the Court on Defendant's Motion for Return of Property. The property at issue was seized, without a warrant, from his hotel room by Drug Enforcement Agency ("DEA") officers in connection with his arrest. Doc. #339. For the reasons set forth below, the Court sustains in part and overrules in part Defendant's Motion for Return of Property.
Federal Rule of Criminal Procedure 41(g) provides as follows:
Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may moveFed. R. Crim. P. 41(g).
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.
Defendant seeks the return of the following exhibits: (1) three cellular telephones (Ex. N-10); (2) one pair of spandex shorts (Ex. N-11); (3) one brown briefcase containing paperwork and personal items (Ex. N-12); (4) miscellaneous paperwork and cell phone chargers (Ex. N-13); (5) one maroon suitcase containing clothing and personal items (Ex. N-14); (6) one cell phone charger (Ex. N-15); (7) one Apple laptop computer (Ex. N-17); (8) miscellaneous books, clothing, CDs and other personal items (Ex. N-18); and (9) $31,775.00 in U.S. currency (Ex. N-4).
With respect to Exhibit N-10, the Government initially objected to the return of the three cellular phones used as evidence at trial, but only because, at the time the motion was filed, Defendant had not yet fully exhausted his appeals in connection with his motion to vacate, set aside, or correct sentence filed pursuant to 28 U.S.C. § 2255. That is no longer a concern because, on January 29, 2013, the Sixth Circuit Court of Appeals denied his application for a certificate of appealability. Exhibits N-11, N-12, N-13, N-14, N-1 5, N-17, and N-18 were not used as evidence at trial, and the Government concedes that this personal property may be returned to Defendant. Accordingly, the Court SUSTAINS Defendant's motion with respect to Exhibits N-10, N-11, N-12, N-13, N-14, N-1 5, N-17, and N- 18, and orders the Government to return that personal property to Defendant or his designated representative.
The Court, however, OVERRULES Defendant's motion with respect to the return of Exhibit N-4, the $31,775.00 in U.S. currency. This money was administratively forfeited in December of 2004. According to John Heironymus, Forfeiture Counsel of the DEA, on July 14, 2004, the Government sent forfeiture notices by certified mail to Defendant at three separate locations — two to his last known residences in California, and one to the jail where he was being held. Individuals signed for delivery of the notices at the two residences, and Deputy Poole signed for the notice at the jail. Heironymus Decl. ¶4; Exs. ##7-12 to Heironymus Decl.
The Government also published notices of the forfeiture action in the Wall Street Journal for three successive weeks. Heironymus Decl. ¶4; Ex. #15 to Heironymus Decl. On August 20, 2004, Francis Alaric Simon, one of the co-defendants, filed a "claim of ownership of seized property" with respect to the money but the DEA rejected the claim as untimely. Id. Because no claims were submitted within the time allotted by statute, the currency was forfeited to the United States on December 10, 2004.
Defendant argues that because he never received actual notice of his right to file a claim, he is entitled to the money. His exclusive remedy is to file a motion to set aside the forfeiture. See 18 U.S.C. § 983(e)(5). The relevant statute provides as follows:
(1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person's interest in the property, which motion shall be granted if--18 U.S.C. § 983(e)(1).
(A) the Government knew, or reasonably should have known, of the moving party's interest and failed to take reasonable steps to provide such party with notice; and
(B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.
Even if the Court were to construe Defendant's motion as one to set aside the forfeiture, Defendant cannot satisfy these two requirements. Under the circumstances presented here, it cannot be said that the Government failed to take reasonable steps to provide him with notice of the forfeiture. It sent three separate notices via certified mail and published the notice in the newspaper. These efforts, which were "reasonably calculated" to apprise Defendant of the pendency of the forfeiture action, were constitutionally sufficient. Actual notice is not required. Dusenbery v. United States, 534 U.S. 161, 170 (2002). Moreover, Defendant had reason to know of the seizure within sufficient time to file a timely claim. As the Government notes, the money seized from his hotel room was not included among the personal property that was returned to him just two days after his arrest.
Even if Defendant could satisfy the requirements for setting aside the forfeiture, his motion is untimely. A motion to set aside a declaration of forfeiture must be filed within five years after the date of final publication of notice of seizure of the property. 18 U.S.C. § 983(e)(3). In this case, final publication was made on August 9, 2004, Heironymus Deck ¶4, and Defendant did not file his motion until October 11, 2011, more than seven years later.
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WALTER H. RICE
UNITED STATES DISTRICT JUDGE