Opinion
01-CV-04843 (RR) (LB).
January 16, 2002.
Everette Haley, Reg. No. 57565-053, F.C.I. Otisville, Otisville, NY., Pro se Plaintiff.
Alan Vinegrad, United States Attorney, Eastern District of New York, Att: Claire S. Kedeshian, Assistant United States Attorney, Brooklyn, NY., Attorney for Defendant.
REPORT AND RECOMMENDATION
Everette Haley, proceedingpro se, seeks the return of personal property allegealy seized from him upon his arrest by Drug Enforcement Administration agents. This matter was referred to the undersigned for a Report and Recommendation in accordance with 28 U.S.C. § 636(b) (1994). For the reasons that follow, it is respectfully recommended that the complaint be dismissed.
BACKGROUND
On July 27, 1999, Everette Haley ("plaintiff' or "Haley") was arrested pursuant to a complaint and arrest warrant issued by this Court. On January 21, 2000, Haley pled guilty to conspiracy to distribute narcotics in violation of 18 U.S.C. § 3551 et seq. and 21 U.S.C. § 846 and 841(b)(1)(C) and was sentenced by the Honorable Reena Raggi to 87 months of imprisonment at a federal facility. See United States v. Haley, 99 CR 796 (RR). By letter dated June 11, 2001, addressed to Judge Raggi, plaintiff sought the return of an "address book and other items of property." Plaintiff claimed that although the prosecutor consented to the return of the property, Special Agent Jack Daley refused to release the property to him. See Letter dated June 11, 2001 from Everette Haley. Treating plaintiffs letter as a complaint and motion for return of property, the Court ordered the government to respond. See Order dated July 30, 2001 (citing cases).
The Court never directed plaintiff to file an informapauperis declaration or the filing fee for this action. Likewise, Haley did not file a Prison Litigation Reform Act authorization form.
In a letter dated October 31, 2001, the government advised the Court that Drug Enforcement Administration ("DEA") agents seized the following items: (a) one gun, (b) one Victoria Secret bag containing an undetermined amount of United States currency; (c) one Albertson's money order made payable to Joe Versacio; (d) one Omnipoint telephone bill for telephone number (201) 920-6414; Casio brand digital databank; (e) one Nokia brand cell phone; (f) one Bravo brand pager; (g) one Motorola Pagemart pager; (h) one notebook and day planner; (i) one passport in the name of Everette Haley. See Exhibit B attached to Letter dated October 31, 2001 from Claire S. Kedeshian, Assistant United States Attorney ("Government Letter").
The government also provided evidence that Haley's phone book and miscellaneous papers were returned to him and that his passport was returned to his step-father, Joseph fllinno, see Exhibit C, Government Letter. According to the government, the remaining non-contraband items ( i.e., the money order, digital data bank, cell phone and various pagers) are being held in evidence in connection with the pending criminal prosecutions against Haley's co-defendants. Government Letter at 3. The government has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Lacking sufficient information to determine what "other items of property" were at issue, the Court directed plaintiff to identify such property within 30 days. See Order dated November 28, 2001. More than 30 days have elapsed and plaintiffhas not challenged the government's submission or identified any other items of property that were not returned and their estimated value as instructed by the Court.
The currency seized at plaintiffs arrest became the subject of forfeiture proceedings in the United States District Court for the Southern District of New York, which resulted in a stipulation and order of settlement. See United States v. $8,970.000 in U.S. Currency, No. 00 Civ. 3016 (DLC) (S.D.N.Y. July 31, 2000). Plaintiff does not appear to seek the return of this seized currency here.
DISCUSSION
The Court where a defendant is tried has ancillary jurisdiction to decide the defendant's post-tnekmetion for the return of seized property. Soviero v. United States, 967 F.2d 791, 792 (2d Cir. 1992). If made after the termination of criminal proceedings against the defendant, as is the case here, such a motion should be treated as a civil complaint for equitable relief See Onwubiko v. United States. 969 F.2d 1392 , 1397 (2d Cir. 1992) (motion pursuant to Fed.R.Crim.P. 41(e) should be treated as civil complaint); Mora v. United States, 955 F.2d 156, 160 (2d Cir. 1992). The Court has authority to order equitable relief or award money damages. Soviero, 967 F.2d at 793; Mora, 955 F.2d at 159-61; Otonye v. United States, 903 F. Supp. 357, 360-61 (E.D.N.Y. 1995).
Plaintiffs letter does not support an award of damages based on the government's purported failure to return his personal property. Indeed, the government has produced a copy of the inventory list of items seized by the DEA and a copy of the receipt indicating that a phone book, miscellaneous papers and passport were returned, see Exhibits B C, Government Letter. Rufo v. United States, 20 F.3d 63, 65 (2d Cir. 1994) ( per curiam) (government should provide records to establish what propertywas seized and how the property was disposed of). Moreover, the government contends that the following items: a money order, the digital data bank, a Nokia cell phone and several pagers, remain in the government's custody for use as evidence in other criminal prosecutions. Government Letter at 3. Plaintiffhas not challenged the government's letter dated October 31, 2001 or responded to the Court's order dated November 28, 2001 as directed. See Rufo, 20 F.3d at 65 (court must give plaintiff an opportunity to respond to the government's letter and accompanying documents).
Insofar as plaintiff seeks the return of the phonebook, miscellaneous papers and passport, this portion of the complaint should be dismissed as moot. Pimentel v. United States Drug Enforcement Admin., 99 F. Supp.2d 420, 424 (S.D.N.Y. 2000) (dismissing claims as moot where government had returned plaintiffs property); United States v. Moussa, No. 96 CR 1261, 1993 WL 42179, at *1 (E.D.N.Y. Feb. 10, 1993) (dismissing claim for currency as moot where government had returned the currency to plaintiff by money order).
To the extent plaintiff seeks the return of items still in government custody, he is advised that the Government may retain seized property when it has possible evidentiary value. Lovelace v. United States, No. 00 Civ. 1274, 2001 WL 984686, at *4 (S.D.N.Y. Aug. 27, 2001) (citing cases); "Where . . . the Government asserts in good faith that it requires seized property for use as evidence in related criminal proceedings, the Government may continue to hold the property while its need for the property as evidence continues." Vega v. United States, No. 00 Civ. 8920, 2001 WL 823874, at *2 (S.D.N.Y. July 20, 2001) (citations omitted). Here, the government has identified the items it claims are being held as evidence in related criminal proceedings and there is nothing from plaintiff to contradict the government's position.
CONCLUSION
Plaintiffs motion for the return of a phone or address book is moot. Plaintiffs motion seeking the return of items identified by the government as evidence in related criminal prosecutions should be denied without prejudice. Plaintiffs failure to identify the "other items of property" he claims were seized defeats any claim against the government for its purported failure to return such unidentified property. Accordingly, it is respectfully recommended that defendant's letter motion to dismiss under Fed.R.Civ.P. 12(b)(6) be granted and this action be dismissed.