Opinion
00 Civ. 8296 (SHS)
January 17, 2001
OPINION ORDER
John Davis seeks the return of property seized from him during a criminal investigation. The government opposes that application in part because it wishes to subject part of the property to forfeiture as substitute assets pursuant to 18 U.S.C. § 1963(m) and to retain part as evidence in an ongoing criminal investigation. For the reasons set forth below, (1) the government may subject to forfeiture the property seized from Davis's Brooklyn residence; (2) Davis's wife must follow the procedures delineated in 18 U.S.C. § 1963 in order to assert a claim to that property; and (3) the government may retain the property needed for the ongoing criminal investigation.
BACKGROUND
In 1998 the Federal Bureau of Investigations, pursuant to a warrant, searched the Brooklyn, N.Y. and Florida residences of John Davis and his wife Deborah in connection with an investigation into a burglary ring. The FBI seized numerous items from both homes, including clocks, lamps, and jewelry. On April 26, 2000, Davis pled guilty to participating in a racketeering enterprise pursuant to 18 U.S.C. 1962(c) and conspiring to transport stolen property pursuant to 18 U.S.C. 371. Specifically, he admitted participating in a gang that burglarized hundreds of homes in New Jersey over the course of many years. As part of his sentence, which included 105 months in prison, Davis was ordered to forfeit $1.2 million pursuant to 18 U.S.C. 1963. Five months after his sentencing, Davis filed this motion pursuant to Fed.R.Cr.p. 41(e) for the return of the seized property. Rule 41(e) provides in pertinent part that "[a] person aggrieved . . . by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property."
Deborah Davis is named as a party in the body of the motion and has signed it.
DISCUSSION
Procedural Posture
The fact that the underlying criminal proceeding against Davis has already terminated would normally constitute a fatal defect to this Rule 41 motion. See Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir. 1992). However, because Davis is proceeding pro se, his papers need be read liberally. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quotingBurgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). Therefore, the Court will treat Davis's motion as a new civil action, rather than treating it as a Rule 41(e) motion and dismissing it as moot in light of the termination of the underlying criminal action. See Weng v. United States, 137 F.3d 709, 711 n. 1 (2d Cir. 1998); Boero v. Drug Enforcement Administration, 111 F.3d 301, 304-05 (2d Cir. 1997); Onwubiko, 969 F.2d at 1397.
Substitute Assets
Davis is not entitled to the return of the items taken from his Brooklyn residence. These items are subject to forfeiture as substitute assets pursuant to 18 U.S.C. § 1963(m), which provides that if any of the property acquired in the course of racketeering activity cannot be located, has been transferred, or has been diminished in value, "the court shall order the forfeiture of any other property of the defendant up to the value of [the missing property]." The government "need not trace the proceeds of [defendant's] racketeering activities to identifiable assets" because "section 1963 imposes forfeiture directly on an individual as part of a criminal prosecution rather than in a separate proceeding in rem against the property subject to forfeiture." United States v. Robilotto, 828 F.2d 940, 948-49 (2d Cir. 1987). Therefore, the government may use the various clocks, lamps, jewelry, and other items seized from Davis's Brooklyn residence to satisfy the $1.2 million forfeiture ordered as part of his criminal sentence.
Deborah Davis' claim
As noted above, Davis's wife, Deborah, has also signed the motion. However, there is insufficient information set forth for the Court to determine the validity of her claim. Accordingly, her motion is denied. However, pursuant to the procedures set forth in 18 U.S.C. § 1963, she may petition the Court for a hearing to adjudicate the validity of any alleged interest in the property within 30 days of the final publication of the notice of forfeiture or her receipt of the notice itself, whichever is earlier. 28 U.S.C. § 1963(1)(2). That petition "shall set forth the nature and extent of [her] right, title, or interest in the property, the time and circumstances of [her] acquisition of the right, title, or interest in the property, any additional fads supporting [her] claim, and the relief sought." 28 U.S.C. § 1963(1)(3). Ms. Davis will be required to prove by a preponderance of the evidence that she has a legal claim to the property. United States v. Lester, 85 F.3d 1409, 1411 (9th Cir. 1996). Her property interests are defined pursuant to state law — in this case, New York law; however, the federal forfeiture statutes determine whether those property interests must be forfeited to the government. Id. at 1412.
Evidence of a continuing criminal investigation
The government also seeks to withhold a 1986 appointment book and a Bible with handwritten names and telephone numbers and certain papers because the information they contain allegedly may become relevant evidence in the prosecution of at least two additional suspects. The government may retain these items as long as "retention is reasonably related to the government's interest in the property." In re Perillo, 1985 WL 8038 (E.D.N.Y. March 13, 1985) (quoting United States v. Premises Known As 608 Taylor Ave., 584 F.2d 1297, 1299 (3d Cir. 1978)). "The government is clearly permitted to seize evidence for use in investigations and trial . . . [n]evertheless, the government may not, by exercising its power to seize, effect a de facto forfeiture by retaining the property seized indefinitely." Premises, 584 F.2d at 1302. "Property used as evidence must be returned once the criminal proceedings to which it relates have terminated." Id.
The criminal proceedings against Davis himself concluded in April of 2000; however, the government has made a good faith showing that the appointment book, Bible and paperwork are needed for its ongoing criminal investigation. Because the government's retention of these items is "reasonably related" to its interest in the property, Davis's application is denied.
This motion also originally sought the return of certain items seized from Davis's Florida residence. The government has consented to their return.
CONCLUSION
For the reasons set forth above, Davis's motion is granted in part and denied in part. The Court orders that: (1) the relevant items seized from the Brooklyn residence are subject to forfeiture as substitute assets; (2) the appointment book, Bible, and related papers may be retained by the government as evidence in its ongoing criminal investigation; (3) the relevant property seized from the Florida residence must be returned to Davis within 30 days.
SO ORDERED