Opinion
Criminal Action No. 99-34, Section: E/3.
May 9, 2005
RULING ON MOTION
Defendant Robert Lee Moore ("Moore") filed this pro se motion pursuant to Fed.R.Crim.Pro. 41(g) (formerly Rule 41(e)) for the return of $34,686.00 in cash and other property seized from his residence at the time of his arrest, or alternatively, for summary judgment. Rec. doc. 44. The motion was referred to the Magistrate Judge for a Report and Recommendation. Rec. doc. 45. After a thorough analysis, the Magistrate Judge recommended that Moore's motion be denied for lack of jurisdiction. Rec. doc. 52. Moore filed timely Objections to the Report and Recommendation. Rec. doc. 57. For the reasons that follow, Moore's Objections are overruled and the Court approves and accepts the Magistrate Judge's Report and Recommendation.
The factual background is set out in detail in the Report and Recommendation, and will be only briefly repeated here. Shortly after Moore's arrest in 1998, the DEA initiated administrative forfeiture proceedings pursuant to 19 U.S.C. § 1607(a) and 21 U.S.C. § 881 with respect to the cash seized at the time of Moore's arrest. The DEA complied with all statutory notice requirements. When Moore failed to file a claim or a cost bond, or otherwise respond to or object to the forfeiture of the seized property within the allotted time period as the notices instructed, the DEA administratively forfeited the $34,686.00 cash on January 26, 1999.
The various other property seized, generally drugs and drug paraphernalia, was never in the possession of the DEA and is not at issue here.
In its consideration of the issues presented here, the Court is mindful of the undisputed fact that Moore's arrest on August 11, 1998, and the seizure of the cash and other property incident to his arrest, which is the subject of this motion, was subsequently held to be an illegal violation of his Fourth and Fifth Amendment rights. See Order and Reasons granting Moore's motion to suppress, rec. doc. 40, entered on July 19, 2000.
In his objections to the Magistrate Judge's Report and Recommendation, Moore first challenges the ultimate conclusion that the district court does not have jurisdiction to hear his Rule 41(g) motion. Citing to Peña v. United States, 122 F.3d 3, 4, n. 3 (5th Cir. 1997), he argues that the Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331, which includes the "general equity jurisdiction of the federal courts." He argues that his claim for the return of his property is justiciable pursuant to this Court's equity jurisdiction because it is a claim that his property was illegally seized in violation of his Constitutional due process rights. He asserts that the motion is timely because the forfeiture was directly related to the criminal charges against him, and that he timely (and successfully) contested those charges in the criminal forum.
When seized property that is the subject of a Rule 41(g) motion is the object of civil forfeiture proceedings, the motion is construed as an independent civil action pursuant to 28 U.S.C. § 1331. Peña, at 4. However, in Peña, there had been no civil forfeiture proceeding. The question before the Peña Court was whether Peña's Rule 41(g) motion, in the absence of a civil forfeiture proceeding, was subject to the Prison Litigation Reform Act of 1995, which applies only to civil proceedings.Id. The Fifth Circuit held that it was. Id. at 5.
But even construing Moore's Rule 41(g) motion as a civil action brought pursuant to § 1331 does not save his claim for the return of his property under the facts here. In United States v. Hernandez, 911 F.2d 981 (5th Cir. 1990), Hernandez filed a Rule 41(g) motion for the return of jewelry he was wearing at the time of his arrest. The jewelry had been the subject of a DEA administrative forfeiture proceeding, and like Moore, Hernandez failed to respond to the notice he received of the forfeiture proceeding. Id. at 982. After he received notice of the completed forfeiture, he filed an unsuccessful petition for remission or mitigation in the DEA administrative process. He then filed a pro se motion for the return of his property pursuant to Rule 41(g), arguing that he had been deprived of his property without due process of law. Id. at 983. The Fifth Circuit affirmed the district court's denial of relief for lack of jurisdiction. Id. The Court held that Rule 41(g), being a rule of criminal procedure, cannot provide a jurisdictional basis in a civil action relating to the civil forfeiture of property for the violation of a statute. Id. (emphasis in original).
"Whether to grant jurisdiction over a Rule 41[g] motion is governed by equitable principles. . . . `A Rule 41[g] motion should be dismissed if the claimant has an adequate remedy at law or cannot show irreparable injury.'" Frazee v. I.R.S., 947 F.2d 448, 449 (10th Cir. 1991), quoting Floyd v. United States, 860 F.2d 999, 1003 (10th Cir. 1988). A civil forfeiture proceeding pursuant to § 881 is an action in rem. Republic National Bank of Miami v. United States, 113 S.Ct. 554, 557 (1992). The Supreme Court inRepublic National Bank of Miami observed that a valid seizure of the res is a prerequisite to the initiation of an in rem civil forfeiture proceeding. Id. However, "the proper place to litigate the legality of the seizure is in the forfeiture proceeding." Hernandez, 911 F.2d at 983, citing Castleberry v. Alcohol, Tobacco, Firearms Div., 530 F.2d 672, 675 (5th Cir. 1976).
Moore had an adequate remedy at law. He had an opportunity to challenge the legality of the seizure in the civil forfeiture proceeding, but failed to exercise that remedy. In his Objections, at pp. 6-7, he admits that he received notice of the forfeiture proceeding in 1998, and that, on the advice of his counsel, he deliberately did not challenge the seizure in that proceeding. He could have requested that the administrative forfeiture proceeding be stayed pending the adjudication of the criminal proceedings against him, but he did not. Having waived his right to challenge the legality of the seizure in the appropriate forum at the appropriate time, he cannot now invoke the equitable jurisdiction of this Court in an attempt to undo what was done 5½ years ago. He has already received the due process required.
See, i.e., Hernandez, 911 F.2d at 982.
Concluding that this Court does not have jurisdiction to entertain Moore's Rule 41(g) motion, whether it is construed as a petition pursuant to 28 U.S.C. § 1331, or a motion for summary judgment, it is not necessary to address Moore's three remaining objections that go to the merits of his motion.
The Court, having considered the motion, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and Moore's Objections to the Report and Recommendation, hereby overrules his Objections and approves and adopts the Report and Recommendation of the United States Magistrate Judge in this matter. Therefore,
IT IS ORDERED that defendant Robert Lee Moore's motion for the return of $34,686.00 in U.S. currency, administratively forfeited to the DEA on January 26, 1999, is DENIED, and the motion is DISMISSED WITH PREJUDICE for lack of jurisdiction.