Opinion
Criminal Action No. 98-207, SECTION "N".
November 30, 2004
ORDER AND REASONS
Before the Court is a "Motion for Return of Property Pursuant to Federal Rule of Criminal Procedure 41(g)," filed by defendant Brian Anthony Jones. Having considered the motion, the government's opposition, the record and the applicable law, IT IS ORDERED that defendant's motion is DENIED insofar as the defendant moves the Court to order the return of $36,199 in seized funds, a Glock .40 caliber handgun, and numerous boxes of 7.62 x .39 ammunition. The Court withholds judgment on the remaining matters and orders the parties to submit additional briefing as set forth herein.
The defendant moved the Court to order the return of approximately $52,000 in seized funds. As set forth below, the Court withholds judgment as to approximately $15,801, i.e., the difference between the $52,000 sought by defendant and the $36,199 forfeited and applied to an outstanding balance of fines imposed on Jones and his co-defendants.
I. BACKGROUND
Following a trial by jury in May of 1999, the defendant, Brian Anthony Jones, was convicted in this Court for conspiracy to distribute cocaine hydrochloride and cocaine base in violation of 21 U.S.C. § 846 and for use of a firearm in violation of 18 U.S.C. § 924(c)(1). On September 20, 1999, the defendant was sentenced to a term of life imprisonment as to the conspiracy violation and a five-year consecutive imprisonment term as to the firearms violation. On August 31, 2001, the Fifth Circuit affirmed the conviction. United States v. Baptiste, 264 F.3d 578 (5th Cir. 2001).
On October 31, 2001, acting on a motion filed by the government, this Court issued an Order (1) authorizing the Bureau of Alcohol, Tobacco and Firearms ("ATF") to deposit into the Deposit Fund of the Clerk of Court $36,000 of funds seized during its investigation of the conspiracy; and (2) directing the Clerk of Court to apply a pro rata share of the $36,000, toward the outstanding special assessments and fines of defendants. (Rec. Doc. No. 746). On January 11, 2002, the government filed a Motion to Amend the October 31, 2001 Order to reflect that the dollar amount seized by the Bureau of ATF during its investigation of the conspiracy was $36,199.00, not $36,000.00 as previously indicated. (Rec. Doc. No. 747). On January 14, 2002, the Court issued an Order reflecting the corrected amount of the seized funds to be deposited in the Deposit Fund and the corrected amount of each defendant's pro rata share of the seized funds. (Rec. Doc. No. 747).
At sentencing, the Court imposed various fines on Brian Anthony Jones and his co-defendants: Jones, Clifford Baptiste, LeShawn Parker, Christopher Frank, Garion McCoy, and Jernard Lewis were each fined $25,000 (Rec. Doc. Nos. 531, 530, 532, 534, 533 and 594); Rico Schexnayder and Percy Franklin were each fined $17,500 (Rec. Doc. Nos. 582 and 583); Irvin Edgerson was fined $3,000 (Rec. Doc. No. 564); and Robert Neyland was fined $2,000 (Rec. Doc. No. 563).
On June 4, 2003, the government filed another motion, this time seeking a Decree of Abandonment, an Order of Destruction and an Order to Apply Funds to Outstanding Fines. (Rec. Doc. No. 821). In that motion, the U.S. Attorney represented that no motion for a return of property had been filed and that the items listed in the attached Exhibit A should be deemed abandoned. The government also sought an order authorizing the relevant law enforcement authority to destroy, or otherwise dispose of, the listed items (excluding the currency) at its discretion. With respect to the seized currency, $2,560.74, the government requested that these funds be applied to the defendants' outstanding fine obligations on a pro rate basis. On August 22, 2003, the Court issued an Order granting the government's motion.
On June 1, 2004, five years after he was convicted and nearly three years after the conviction was upheld, Jones filed the instant motion pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure (formerly Rule 41(e)), seeking the return of the following items that were seized during the investigation and prosecution of this criminal matter:
Rule 41 of the Federal Rules of Criminal Procedure was amended in 2002 "as part of a general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules." See Fed.R.Crim.P. 41 advisory committee notes. As a result of the 2002 amendments, the previous Rule 41(e) now appears with minor stylistic changes as Rule 41(g).
1. Approximately $52,000 in U.S. currency;
2. One Glock .40 caliber handgun;
3. Numerous boxes of 7.62 x .39 ammunition;
4. One O'Hause Triple Beam balancing scale;
5. One Nike shoe box with various papers;
6. One Motorola pager;
7. One Radiofone pager;
8. One Kleen Bore gun cleaning kit; and
9. Three personal checks to Convenient Mobile Detail.
Def. Mtn., p. 2. The government opposes the defendant's motion, contending that all of the listed items have either been disposed of or forfeited.
In its response, the government correctly states that, excepting the currency, all of the items the defendant now seeks to recover were listed in the government's June 4, 2003 motion. See Motion for Decree of Abandonment, an Order of Destruction and an Order to Apply Funds to Outstanding Fine(s), Exhibit A (Rec. Doc. No. 821).
II. LAW AND ANALYSIS
Federal Rule of Criminal Procedure 41(g) provides:
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where it 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.
As an initial matter, this Court concludes that it has jurisdiction to hear the defendant's motion because that motion is ancillary to Jones' criminal case, which was tried before this Court. See United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999); United States v. Taylor, 975 F.2d 402 (7th Cir. 1992).
Although a post-conviction Rule 41(g) motion is ancillary to the preceding criminal case, the nature of such a motion is civil and equitable, not criminal. Chamber, 192 F.3d at 376. The civil nature of Rule 41(g) proceedings means that the Court applies the "preponderance" evidentiary standard rather than the criminal law "beyond-a-reasonable-doubt" standard. United States v. Kelly, 872 F.Supp. 556, 559 (N.D.Ind. 1994) (citing United States v. Maez, 915 F.2d 1466, 1468 (10th Cir. 1990)). "The application of the preponderance standard is important because `a defendant may be acquitted of the crime under the reasonable doubt standard but found to possess property unlawfully because of the lower preponderance standard of proof.'" Id. (quoting Maez, 915 F.2d at 1468).
"Equally significant is the equitable nature of Rule 41(g) proceedings." Kelly, 872 F.Supp. at 559. This significance varies with the movant, who may fall within one of two classes: (1) persons "aggrieved by an unlawful search and seizure of property," and (2) persons "aggrieved . . . by the deprivation of property." Id; Fed.R.Crim.P. 41(g). "When a postconviction Rule 41(g) movant relies on the unlawful nature of the underlying seizure, the Court's equitable discretion is constrained." Id. at 560. "If the movant shows that the property was unlawfully seized, no countervailing governmental interest can overcome that fact because any governmental interest in the property would be necessarily tainted." Id. "In such cases, the Court still must consider, as discussed below, whether the movant is entitled to lawful possession and the adequacy of any remedy at law." Id.
"Where, on the other hand, the movant does not rely on an argument of unlawful seizure, the Court has freer reign to balance whatever interests the defendant asserts in his property against the interests of the government in retaining the property." Kelly, 872 F.Supp. at 560. In these cases, the Court must begin with a prima facie case of lawful entitlement. Id. The defendant is aided in this by the presumption that "a criminal defendant . . . ha[s] the right to the return of his property once it is no longer needed as evidence." Id. See also United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993). Once a defendant makes out a prima facie case of lawful entitlement, the burden then shifts to the government to prove that its interests outweigh the defendant's interests. Kelly, 872 F.Supp. at 560; Mills, 991 F.2d at 612. The government's interests may take various forms; what is essential is that the interest is "legitimate." Chambers, 192 F.3d at 377. See also Mills, 991 F.2d at 612 (noting that claim of possession adverse to defendant, such as restitution order, rebutted defendant's presumption of entitlement to money seized at time of arrest); United States v. Duncan, 918 F.2d 647, 654 (6th Cir. 1990) (concluding that government's interest in ensuring payment of monetary penalties imposed as part of sentence outweighed defendant's interest in return of money), cert. denied, 500 U.S. 933, 111 S.Ct. 2055 (1991). "The government must show by a preponderance of evidence that whatever interest it asserts overwhelms the defendant's interest." Kelly, 872 F.Supp. at 560.
While he is clear about the relief he seeks — the return of certain property, Jones is unclear about the basis of his motion. Specifically, Jones does not specify whether he has brought this motion as a person aggrieved (1) "by an unlawful search and seizure of property," or (2) "by the deprivation of property." Fed.R.Crim.P. 41(g). Because the defendant's conviction has been affirmed on appeal and because the defendant does not allege any facts that would indicate that the items were unlawfully seized, the Court will treat the defendant's motion as one brought by a person aggrieved by deprivation of property and not by an unlawful search.
The government incorrectly states that Rule 41(g) only applies to an unlawful search or seizure. The text of the Rule is clear that a motion may be brought by "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property." Fed.R.Crim.P. 41(g) (emphasis added).
For ease of the Court's analysis, the Court will address the property sought to be returned as falling in one of three categories: (1) currency; (2) firearms; and (3) remaining property.
This category is comprised of the approximately $52,000 in U.S. currency.
This category is comprised of the Glock .40 caliber handgun and the boxes of 7.62 × .39 ammunition.
1. Currency
Jones first contends that he is entitled to the return of approximately $52,000 in U.S. currency. Having reviewed the motion, the record and the applicable law, the Court finds that the defendant's motion is flawed for a number of reasons. Foremost, Jones has not set forth any factual allegations indicating his lawful entitlement to any of the seized property. Instead, he has just makes a blanket assertion that "[o]n May 26, 1998, [he] was arrested by New Orleans Police Department officers and the [enumerated] items were seized. . . ." Def.'s Mtn., p. 2. Jones further states that "[he] has not been served with any notification pertaining to these items." Id. Jones "therefore . . . requests that the court order the government to return the property." Id.
While Jones has not made the requisite prima facie case of lawful entitlement to the seized funds, the Court nonetheless will consider the defendant's motion in part. As stated earlier, Jones seeks the return of approximately $52,000. With respect to $36,199, the government has directed the Court's attention to the October 31, 2001 Order and January 14, 2002 Amended Order (1) authorizing the Bureau of ATF to deposit into the Deposit Fund of the Clerk of Court $36,199 of funds seized during its investigation of the conspiracy; and (2) directing the Clerk of Court to apply a pro rata share of the $36,199, toward the outstanding special assessments and fines of defendants. See Rec. Doc. Nos. 746 and 747. Even if the defendant could make a prima facie showing of lawful entitlement to the $36, 199 of seized funds, the Court finds that the government has shown by a preponderance of the evidence that its interest in seeing that the fines imposed upon the defendants in this criminal action are satisfied overwhelms any interest that Jones may have in the funds. See Duncan, 918 F.2d at 654 (concluding that government's interest in ensuring payment of monetary penalties imposed as part of sentence outweighed defendant's interest in return of money), cert. denied, 500 U.S. 933, 111 S.Ct. 2055 (1991). Accordingly, the Court concludes that the defendant is not entitled to the return of $36,199.
While the Court finds that the defendant is not entitled to have the $36,199 of seized and forfeited funds returned to him, the Court is unable to make a determination as to the defendant's entitlement to approximately $15,801 in seized funds, i.e., the remainder of the approximately $52,000 listed in the defendant's motion. Accordingly, the Court will order additional briefing from the parties on that issue. First, Mr. Jones must file a supplemental memorandum not later than Monday, December 20, 2004, alleging facts which demonstrate his lawful possession and entitlement to the aforementioned $15,801 which allegedly was seized from him. The government must file any reply memorandum not later than Monday, January 10, 2005.
2. Firearms
Jones also suggests that he is aggrieved by the government's wrongful retention of the Glock .40 caliber handgun and the boxes of 7.62 × .39 ammunition. As noted above, the defendant seeking the return of property must first make out a prima facie case of lawful entitlement to that property. While Jones has not alleged any facts demonstrating his lawful entitlement to the firearms, the Court finds that the motion is properly denied for a number of reasons. First, with respect to the handgun, the Court finds that the defendant's motion must be denied as the defendant states in his motion that "[i]t was stipulated at trial that the weapon's owner was Edward Maxmillion." Def.'s Mtn., p. 2, n. 2. Second, even if the defendant had made out a prima facie case of entitlement, the Court must deny the defendant's motion insofar as he seeks the return of both the handgun and boxes of ammunition. This is because the defendant, as a previously convicted felon, has no lawful entitlement to possess firearms. See 18 U.S.C. § 922(g) (illegal for convicted felon to possess firearms).
3. Remaining Property
In his motion, Jones also contends that he is entitled to the return of an O'Hause Triple Beam balancing scale, a Nike shoe box containing various papers, a Motorola pager, a Radiofone pager, a Kleen Bore gun cleaning kit, and three personal checks to Convenient Mobile Detail. In response to Jones' motion, the government directs the Court's attention to the August 22, 2003 Order decreeing these items, among others, as abandoned, and authorizing the destruction of same. The government also states, without any supporting documentation, that the items were in fact "disposed of." Gov't Response, p. 1. It is well-settled, however, that in responding to a Rule 41(g) motion, "[t]he government must do more that state, without documentary support, that it no longer possesses the property at issue." United States v. Chambers, 192 F.3d 374, 377-78 (3d Cir. 1999) (citing Mora v. United States, 955 F.2d 156, 159 (2d Cir. 1992)).
Because the Court is compelled to receive evidence on any disputed issue of fact necessary to the resolution on the motion, the Court therefore requests additional briefing and withholds judgment as to the remaining property. See Fed.R.Crim.P. 41(g). See also United States v. Dean, 100 F3d 19, 21 (5th Cir. 1996). Accordingly, the defendant must file not later than Monday, December 20, 2004, a supplemental memorandum in which he specifically alleges facts which would support a prima facie case of lawful entitlement to the O'Hause Triple Beam balancing scale, the Nike shoe box containing various papers, the Motorola pager, the Radiofone pager, the Kleen Bore gun cleaning kit, and three personal checks to Convenient Mobile Detail. The government file its response not later than Monday, January 10, 2005. In its response, the Government should provide documentary support of the destruction of the aforementioned property, if those items have, in fact, been destroyed or otherwise disposed of. The Government is also asked to respond to the defendant's assertion that "[he] has not been served with any notification pertaining to these items." Def. Mtn., p. 2.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that:1. The defendant's Motion for Return of Property is DENIED insofar as the defendant moves the Court to order the return of $36,199 of approximately $52,000 in seized funds, a Glock .40 caliber handgun, and numerous boxes of 7.62 × .39 ammunition.
2. The defendant must file not later than Monday, December 20, 2004, a supplemental memorandum in which he specifically alleges facts which would support a prima facie case of lawful entitlement to the additional $15,801 which allegedly was seized from him. The government must file any reply memorandum not later than Monday, January 10, 2005.
3. The defendant must file not later than Monday, December 20, 2004, a supplemental memorandum in which he specifically alleges facts which would support a prima facie case of lawful entitlement to the O'Hause Triple Beam balancing scale, the Nike shoe box containing various papers, the Motorola pager, the Radiofone pager, the Kleen Bore gun cleaning kit, and three personal checks to Convenient Mobile Detail. The government file its response not later than Monday, January 10, 2005.