Opinion
No. 02-40005-01-SAC.
September 22, 2004
MEMORANDUM AND ORDER
The case comes before the court on the Carlos Alonso Moreno's motion for return of property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure. (Dk. 73). Moreno seeks the return of $26,048.00, a 2000 Harley-Davidson motorcycle, and a 1989 Jeep Cherokee sport utility vehicle ("SUV"). In the caption of his motion, Moreno uses the case number from his criminal proceeding, but he styles himself as the plaintiff and names the Drug Enforcement Administration and the Kansas Department of Revenue Drug Tax Collector as the defendants. Because the motion was filed in this case pursuant to Rule 41(g), the court retains the caption of the original criminal proceeding.
In the criminal case, the defendant pleaded guilty to a drug trafficking offense and to the possession of a firearm by a prohibited person. The defendant appealed his sentence to the Tenth Circuit which reversed the guideline sentence based on an error in the defendant's criminal history points. The district court recently resentenced the defendant correcting this error.
In support of his motion, Moreno attaches an affidavit averring that he is the lawful owner of this property, that the property was unlawfully seized by the Drug Enforcement Administration and the Kansas Bureau of Investigation, that he was never provided a warrant during the raid on his home, and that he purchased all of the property from money earned from his roofing business. The defendant seeks the return of the property.
The government responds that deputies with the Shawnee County Sheriff's Department executed a search warrant on the defendant's property finding a safe that contained a gun, drugs and nearly $20,000 in currency. In a bedroom closet, deputies found another $5,000 in currency in the pocket of a pair of men's pants. The deputies also confiscated the motorcycle and SUV from the property for purposes of civil asset forfeiture. The deputies stored all of these items in the custody of the Shawnee County Sheriff's Department.
The government attaches a tax warrant issued by the Kansas Department of Revenue that was placed on the currency and motorcycle which are the subject of this motion. The appearance docket for this state civil proceeding on the drug tax warrant shows the warrant was served on May 14, 2001. The government represents the Kansas Department of Revenue collected the currency and motorcycle from the Shawnee County Sheriff's Department to satisfy the warrant. The motorcycle was sold at auction and proceeds applied towards the drug tax warrant. Documents attached to the government's brief evidence that the Sheriff's Department returned the SUV to the registered owner appearing on the vehicle's title.
Rule 41(g) permits a person who has had property seized to move the district court for its return. Though the criminal proceedings have terminated, a district court has jurisdiction to treat a Rule 41(g) motion "as a civil proceeding for equitable relief." United States v. Bein, 214 F.3d 408, 411 (3rd Cir. 2000), cert. denied, 534 U.S. 943 (2001); United States v. Rowzer, 201 F.R.D. 516, 518 (D. Kan. 2001). A Rule 41(g) motion "is an equitable remedy available only to a defendant who can show irreparable harm and an inadequate remedy at law." United States v. Akers, 215 F.3d 1089, 1106 (10th Cir.) ("a forfeiture proceeding provides a defendant with an an adequate remedy at law for resolving a claim to seized property" (citation omitted), cert. denied, 531 U.S. 1023 (2000); Clymore v. United States, 164 F.3d 569, 571 (10th Cir. 1999) (available state avenues of relief are an adequate remedy at law). If the defendant "has state avenues of relief open to him, he cannot show an inadequate remedy at law." Clymore, 164 F.3d at 571.
Because the property here was seized by state authorities, Rule 41 relief is available only if (1) federal authorities actually possess the property that the State first seized and then released to federal authorities; (2) federal authorities constructively possess the property that "was considered evidence in the federal prosecution;" or (3) state officials acted upon directions from federal officials in seizing the property. Clymore v. United States, 164 F.3d at 571. The defendant's bald allegation that the DEA participated in the search and seizure, "without more, is insufficient to establish the extensive federal possession or control necessary to make Rule 41(e) the appropriate vehicle by which to recover the state-forfeited property." Clymore, 164 F.3d at 571; Rowzer, 201 F.R.D. at 518. Thus, the United States "is not the appropriate party from which to request . . . [the] return" of this property listed in the defendant's motion, see United States v. Solis, 108 F.3d 722, 723 (7th Cir. 1997), and this court lacks subject matter jurisdiction over this same property. Additionally, Moreno has not shown an inadequate remedy at law at to warrant Rule 41(g) relief, because there appear to be or to have been state avenues of relief available to him.
In 2002, Rule 41 was amended in several respects, and the paragraph governing motions for return of property was moved from (e) to (g).
IT IS THEREFORE ORDERED that the defendant's motion for return of property (Dk. 73) is dismissed without prejudice for lack of subject matter jurisdiction.