Opinion
CIVIL ACTION NO. 5:04-CV-012-C.
July 20, 2004
ORDER
Kendrick Jermaine Fulton, acting pro se, filed a Motion for Return of Property pursuant to Federal Rule of Criminal Procedure 41(g) on January 9, 2004, in Criminal Action No. 5:02-CR-094-02-C in the United States District Court for the Northern District of Texas, Lubbock Division. By Order dated January 13, 2004, this Court construed the motion to be a civil action pursuant to 28 U.S.C. § 1331 against the United States seeking the return of Fulton's personal property allegedly seized from 1812 Poplar, Amarillo, Texas, on or about March 14, 2002. Fulton was granted permission to proceed in forma pauperis by Order dated February 13, 2004. The United States of America ("Government") filed an Answer on April 12, 2004.
The parties have subsequently filed the following motions and pleadings:
(1) Plaintiff's Request for Discovery (Dkt. # 13), filed on April 27, 2004;
(2) Motion for Leave to Amend United States' Answer to Kendrick J. Fulton's Motion/Complaint for Return of Property (Dkt. # 14), filed on May 20, 2004;
(3) Plaintiff's Response to United States' Response to Discovery and Amended [ sic] Answer to Plaintiff's Motion for Return of Property (Dkt. # 15), filed on June 9, 2004;
(4) United States' Response in Opposition to Fulton's Motion to Compel (Dkt. # 16) and Appendix in Support (Dkt. # 17), filed on June 24, 2004;
(5) Plaintiff's Response to United States' Opposition to Plaintiff's Motion to Compel (Dkt. # 18), filed on July 6, 2004; and
(6) United States' Motion for Summary Judgement (Dkt. # 19), Brief in Support (Dkt. # 20), and Appendix in Support (Dkt. # 21), filed on July 8, 2004.
The Court has considered these motions and responses and finds that the following facts are uncontested:
1. On March 14, 2002, law enforcement officers executed a search warrant at 1812 Poplar, Amarillo, Texas, and seized the personal property listed in the attached Schedule A.
2. On August 7, 2003, a jury found Fulton guilty of conspiracy to distribute and possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846 in Criminal Action No. 5:02-CR-094-02-C.
3. The following exhibits listed on Schedule A were admitted at trial: Exhibit 75 (DEA Ex. 29); Exhibit 76 (DEA Ex. 30); Exhibits 77, 78, 87, 91, 92, and 112 (DEA Ex. N-50); Exhibits 88, 89, 90, 102, and 127 (DEA Ex. N-51); Exhibits 79, 80, and 103 (DEA Ex. N-52); Exhibits 113, 114, 115, 116, and 121 (DEA Ex. N-52); Exhibit 117 (DEA Ex. N-56); Exhibit 118 (DEA Ex. N-57); Exhibits 119 and 120 (DEA Ex. N-58); Exhibits 93, 94, 96, 97, 98, 99, 107, 108, 110, and 111 (DEA Ex. N-60); Exhibit 122 (DEA Ex. N-61); Exhibits 123a, 123b, 123c, and 124 (DEA Ex. N-63); Exhibit 126 (DEA Ex. N-66); Exhibits 101, 105a, 105b, and 125 (DEA Ex. N-67); Exhibits 81, 82, 83, 84, and 85 (DEA Ex. N-69); and Exhibit 128 (DEA Ex. N-70).
4. The following exhibits were seized by law enforcement on March 14, 2002, but were not offered or admitted as exhibits at trial: DEA Exhibits N-47 (Systemax Venture Computer CPU), N-48 (Compaq Presario Laptop Computer), N-49 (miscellaneous documents), N-53 (miscellaneous documents), N-55 (Nokia cellular telephone), N-59 (blue binder containing miscellaneous documents), N-62 (miscellaneous documents), N-64 (Spring-Samsung cellular telephone), N-65 (cellular telephone and pager), N-68 (one yellow tablet), and N-71 (one key ring with keys).
5. The following exhibits were designated as trial exhibits but were not introduced at trial: Exhibits 86 and 100 (DEA Ex. N-50); Exhibit 104 (DEA Ex. N-52); and Exhibits 106 and 109 (DEA Ex. N-54).
6. Fulton filed a notice of appeal in Criminal Action No. 5:02-CR-094-02-C on November 4, 2003, and this appeal (USCA No. 03-11175) remains pending as of this date.
DISCOVERY
On April 27, 2004, Fulton filed a Request for Discovery in which he requested that the Government be ordered to provide him with copies of "any and all search warrant(s), any and all affidavit(s) submitted to any court, state or federal, in support of any prospective search warrants, and any and all law enforcement report(s) generated and used in conjunction with the pursuit of any search warrant(s)." On June 9, 2004, Fulton filed a "Response to United States' Response to Discovery . . .," in which he complained that the Government had failed to provide copies of all the warrants, affidavits, and reports and requested that this Court issue an order compelling the production of such documents. On June 24, 2004, the Government filed a Response in Opposition to Fulton's Motion to Compel.
Both parties concede that Fulton served the Government with a request for the production of documents on April 22, 2004, and filed a copy of this request with the Court on April 27, 2004. The Government alleges that on May 21, 2004, a response to the request for discovery was served on Fulton. The Government argued in the response that Fulton's requests were irrelevant, ambiguous, and/or overbroad and, without waiving any objections to the discovery request, the Government stated that Fulton was provided a copy of the search warrant used on March 14, 2002, at 1812 Poplar Street in Amarillo, the search warrant affidavit, the list of the seized items filed in state court, and Special Agent Bruce Lange's report (DEA-6) regarding the execution of the warrant on March 14, 2002. Fulton concedes that he was served with copies of these documents but continues to argue that he is entitled to "any and all warrants, affidavits, and reports." The Government has responded that Fulton has failed to demonstrate that any other warrants that may have been executed elsewhere on March 14, 2002, are relevant to Fulton's civil action for the return of his property seized at 1812 Poplar in Amarillo, Texas, and therefore he is not entitled to copies of the documents. This Court agrees.
The Government's response was not filed with this Court but the Government provided a copy of the response in its Appendix in Support of the United States' Response in Opposition to Fulton's Motion to Compel (Dkt. # 17).
Under Federal Rule of Civil Procedure 26(b)(1), "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense. . . ." Evidence is "relevant" if it is "[l]ogically connected and tending to prove or disprove a matter in issue. . . ." Black's Law Dictionary 1293 (7th ed. 1999). "The trial court holds great latitude in the management of the discovery process. . . ." United States v. Neal, 27 F.3d 1035, 1049 (5th Cir. 1994) (quoting United States v. Ellender, 947 F.2d 748, 756 (5th Cir. 1991)).
In his Motion for Return of Property, Fulton requests only the return of his property seized from 1812 Poplar in Amarillo on March 14, 2002; he does not allege that the Government seized property belonging to him pursuant to warrants executed at other locations. Although he argues in his request for discovery that he is entitled to copies of the warrants, affidavits, and reports from the searches conducted at other locations, he has not identified the other locations or identified what property of his was seized at the other locations. Indeed, Fulton provides no information regarding other warrants or searches in his "motion to compel" and the only evidence described in his "motion to compel" or response to the Government's opposition to his discovery request is evidence that was seized at 1812 Poplar, Amarillo, Texas, on March 14, 2002. Accordingly, the Court finds that Fulton's Request for Discovery should be granted as to his request for copies of the March 14, 2002 affidavit, warrant, list of items seized and the DEA-6 regarding the search and seizure at 1812 Poplar in Amarillo, but denied as to his request for the affidavits, warrants, lists, and reports from "any and all other searches" on March 14, 2002, because his request is vague and overbroad and he has not demonstrated that such discovery involves evidence "relevant" to his motion for the return of his property.
Fulton has not demonstrated that he had or has standing to challenge the execution of any warrants other than the one executed at 1812 Poplar in Amarillo, Texas, on March 14, 2002. A person challenging a search or seizure has the burden of demonstrating standing; that is, he must show "(1) an actual, subjective expectation of privacy with respect to the place searched or the things seized, and (2) that the expectation is such that society would recognize it as reasonable." United States v. Thomas, 120 F.3d 564, 571 (5th Cir. 1997) (citation omitted). Accordingly, Fulton would have to demonstrate that he had an actual, subjective expectation of privacy in the things seized at the other locations before he could challenge the seizures and file a motion for their return.
MOTION FOR RETURN OF PROPERTY
"A criminal defendant is presumed to have the right to the return of his property once it is no longer needed as evidence." United States v. Dean, 100 F.3d 19, 20 (5th Cir. 1996) (citation omitted). The Government may rebut this presumption by showing that the defendant did not lawfully possess the property, id., or the Government has a legitimate interest in retaining the property, United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993).
The Government concedes that Fulton has demonstrated that he is entitled to have returned the items seized at 1812 Poplar in Amarillo on March 14, 2002, that were not admitted into evidence at his criminal trial or designated to be offered into evidence. The Government argues that because the appeal of Fulton's conviction and sentence in Criminal Action No. 5:02-CR-094-02-C is currently pending before the Fifth Circuit Court of Appeals, the items admitted into evidence at trial and the items not admitted but designated to be offered might be needed if the criminal action is reversed on appeal and the Government finds it necessary to retry the case.
Accordingly, the Court finds that the items seized by the Government from Fulton on March 14, 2002, at 1812 Poplar, Amarillo, Texas, should be returned to Fulton or his designee unless the items were admitted into evidence or designated to be admitted during the trial of Criminal Action No. 5:02-CR-094-02-C.
CONCLUSION
For the reasons set forth above, it is ORDERED that
1. Fulton's Request for Discovery (Dkt. # 13) is denied in part as moot and in part as seeking evidence that is not relevant to his request for the return of his property.
2. The Government's Motion for Leave to Amend United States' Answer (Dkt. # 14) is granted and the attached amended answer shall be filed by the Clerk.
3. To the extent that Fulton's Response to United States' Response to Discovery and Ammended [ sic] Answer to Plaintiff's Motion for Return of Property (Dkt. #15) seeks an order compelling the Government to comply with the Request for Discovery, his motion to compel is denied.
4. The Government's Motion for Summary Judgment (Dkt. # 19) is granted.
5. Fulton's Motion for Return of Property is granted in part and the items designated on the attached Schedule A as (a) DEA Exhibits N-47 (Systemax Venture Computer CPU), N-48 (Compaq Presario Laptop Computer), N-49 (miscellaneous documents), N-53 (miscellaneous documents), N-55 (Nokia cellular telephone), N-59 (blue binder containing miscellaneous documents), N-62 (miscellaneous documents), N-64 (Spring-Samsung cellular telephone), N-65 (cellular telephone and pager), N-68 (one yellow tablet), and N-71 (one key ring with keys), and (b) DEA Exhibits N-50, N-52, and N-54 shall be returned to Fulton or his designee except for the items contained in these DEA exhibits and designated as trial exhibit numbers 86 (DEA Ex. N-50), 100 (DEA Ex. N-50), 104 (DEA Ex. N-52), 106 (DEA Ex. N-54), and 109 (DEA Ex. N-54)
6. Fulton's Motion for Return of Property is denied to the extent that he has requested the return of items listed on the attached Schedule A as trial exhibit numbers, regardless of whether the exhibits were actually admitted at trial or simply designated as trial exhibits.
7. Fulton shall complete the attached Authorization for Return of Property to Designee and send it to Assistant United States Attorney Diane M. Kozub, Burnett Plaza — Suite 1700, 801 Cherry Street — Unit # 4, Fort Worth, Texas 76102-6882, within thirty (30) days from the date of this Order.
8. All pending motions not previously ruled on are hereby denied.
SCHEDULE A
DEA Exhibit No. Description of Item Trial Exhibit No. (5:02-CR-094-C)
Ex. 29 Anchor Hocking Measuring Cup with Ex. 75 cocaine residue
Ex. 30 Set of scales Ex. 76
Ex. N-47 Systemax Venture Computer CPU
Ex. N-48 Compaq Presario Laptop Computer
Ex. N-49 Miscellaneous documents
Ex. N-50 Miscellaneous documents Some were Exs. 77, 78, 86, 87, 91, 92, 100, 112
Ex. N-51 Telephone bills Exs. 88, 89, 90, 102, 127
Ex. N-52 Miscellaneous documents Some were Exs. 79, 80, 103, 104
Ex. N-53 Miscellaneous documents
Ex. N-54 Miscellaneous documents Some were Exs. 106, 109, 113, 114, 115, 116, 121
Ex. N-55 Nokia Cellular telephone
Ex. N-56 Cellular telephone records Ex. 117
Ex. N-57 Cellular telephone records Ex. 118
Ex. N-58 2 binders of photographs Exs. 119 and 120
Ex. N-59 Blue binder containing miscellaneous documents
Ex. N-60 Photographs Exs. 93, 94, 96, 97, 98, 99, 107, 108, 110, 111 Ex. N-61 Two large photographs Ex. 122
Ex. N-62 Miscellaneous documents
Ex. N-63 Photographs Some were Exs. 123a, 123b, 123c, 124
Ex. N-64 Spring-Samsung cellular telephone
Ex. N-65 Cellular telephone and pager
Ex. N-66 Miscellaneous documents Some were Ex. 126
Ex. N-67 Miscellaneous documents and/or Some were Exs. photographs 101, 105a, 105b, 125 Ex. N-68 One yellow tablet
Ex. N-69 Miscellaneous receipts Some were Exs. 81, 82, 83, 84, 85
Ex. N-70 Miscellaneous documents Some were Ex. 128
Ex. N-71 One key ring with keys
AUTHORIZATION FOR RETURN OF PROPERTY TO DESIGNEE
I, Kendrick Jermaine Fulton, hereby designate and authorize Edgar Miles, 2000 N. Adams, Amarillo, Texas 79107 (806-374-0827), to receive the following property seized by the Drug Enforcement Administration (DEA), United States Department of Justice, in Criminal Action No. 5:02-CR-094-02-C (N.D. Texas, Lubbock Division) (DEA Case No. MB-00-0051) on my behalf:
DEA Exhibit Numbers N-47, N-48, N-49, N-53, N-55, N-59, N-62, N-64, N-65, N-68, and N-71, and those portions of DEA Exhibit Numbers N-50, N-52, N-54, N-63, N-66, N-67, N-69, and N-70 that were not designated as trial exhibits in Criminal Action No. 5:02-CR-094-02-C, as set out in Schedule A attached hereto.
I release the United States, its agencies, and its agents from any and all liability in connection with my designee's possession, maintenance, and disposition of the subject property received by him as my designee from the DEA.
Kendrick J. Fulton, ID No. 30080-177
Sworn before me this ____ day of ____, 2004.
Notary Public, in and for the State of ____
My commission expires: ____
SCHEDULE A
DEA Exhibit No. Description of Item Trial Exhibit No. (5:02-CR-094-C)
Ex. 29 Anchor Hocking Measuring Cup with Ex. 75 cocaine residue Ex. 30 Set of scales Ex. 76 Ex. N-47 Systemax Venture Computer CPU Ex. N-48 Compaq Presario Laptop Computer Ex. N-49 Miscellaneous documents Ex. N-50 Miscellaneous documents Some were Exs. 77, 78, 86, 87, 91, 92, 100, 112 Ex. N-51 Telephone bills Exs. 88, 89, 90, 102, 127 Ex. N-52 Miscellaneous documents Some were Exs. 79, 80, 103, 104 Ex. N-53 Miscellaneous documents Ex. N-54 Miscellaneous documents Some were Exs. 106, 109, 113, 114, 115, 116, 121 Ex. N-55 Nokia Cellular telephone Ex. N-56 Cellular telephone records Ex. 117 Ex. N-57 Cellular telephone records Ex. 118 Ex. N-58 2 binders of photographs Exs. 119 and 120 Ex. N-59 Blue binder containing miscellaneous documents Ex. N-60 Photographs Exs. 93, 94, 96, 97, 98, 99, 107, 108, 110, 111 Ex. N-61 Two large photographs Ex. 122 Ex. N-62 Miscellaneous documents Ex. N-63 Photographs Some were Exs. 123a, 123b, 123c, 124 Ex. N-64 Spring-Samsung cellular telephone Ex. N-65 Cellular telephone and pager Ex. N-66 Miscellaneous documents Some were Ex. 126 Ex. N-67 Miscellaneous documents and/or Some were Exs. photographs 101, 105a, 105b, 125 Ex. N-68 One yellow tablet Ex. N-69 Miscellaneous receipts Some were Exs. 81, 82, 83, 84, 85 Ex. N-70 Miscellaneous documents Some were Ex. 128
Ex. N-71 One key ring with keys