Opinion
NO. 3-01-CV-2100-R
April 22, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Troy Watts has filed a motion for return of seized property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. The motion has been referred to United States Magistrate Judge Jeff Kaplan for recommendation pursuant to 28 U.S.C. § 636(b).
Petitioner originally filed this action in the United States District Court for the Northern District of Illinois. By order dated October 16, 2001, the case was transferred to the Northern District of Texas where the property at issue was seized.
I.
On August 14, 1996, federal agents executed a search warrant at petitioner's residence located at 537 Winston, Grand Prairie, Texas. Among the items seized were various pieces of computer equipment and two handguns. Petitioner was subsequently charged and pled guilty to federal drug and money laundering charges in the Northern District of Illinois. Punishment was assessed at a 292 months confinement and a criminal monetary penalty of $13,000. United States v. Watts, No. 1-96-CR-290-2 (N.D. Ill. Dec. 22, 1998). Now that the criminal proceedings have been concluded, petitioner seeks to recover a laptop computer, a Ruger P85 9mm pistol, and an American Derringer .38 caliber handgun seized by DEA agents pursuant the search warrant. Petitioner alleges that he is the lawful owner of this property and never received notice of any intended forfeiture. (Pet. Mot. at 1).
In its original answer and two supplemental responses, the government denies that it seized a laptop computer. However, "[i]f there ever was a laptop, it was returned to Peggy Watts" the day after the search. (Gov't First Supp. Ans. at 2, ¶ 1). The government acknowledges that it still has the two handguns, but points out that as a convicted felon, petitioner is prohibited from possessing these weapons. The issues have been briefed by the parties and the motion is ripe for determination.
The Court initially determined that an evidentiary hearing was required to resolve disputed fact issues surrounding the motion. See ORDER, 11/19/01. However, this hearing was canceled after petitioner notified the Court that he was satisfied with the state of the record and "has nothing that he could add to the Evidentiary Hearing." (Pet. Mot., 12/3/01 at 2).
II.
Rule 41(e) of the Federal Rules of Criminal Procedure provides that "[a] person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court . . . for the return of the property on the ground that such person is entitled to lawful possession of the property." FED. R. CRIM. P. 41(e). 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). When, as here, a Rule 41(e) motion is filed after the criminal proceedings have terminated, "the person from whom the property is seized is presumed to have a right to its return, and the government must demonstrate that it has a legitimate right to retain the property." United States v. Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001), quoting United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999).A.
The government disputes that it seized a laptop computer from petitioner's residence on August 14, 1996. In support of this assertion, the government points out that the inventory attached to the search warrant return does not specifically list a "laptop computer." Instead, the inventory describes only a "computer" and "computer monitor, printer, CPU, power source, keyboard." (Gov. Second Supp. Ans., Exh. A, Items G22.1-G22.5 G23). Some of these items were returned to petitioner's wife, Peggy Ann Watts, on August 15, 1996. However, the release signed by Watts lists only a "monitor, keyboard switching system and printer." ( Id., Exh. B). There is no mention of the "computer" listed as Item G23 or the "CPU" listed as Item G22.3. ( Id.).
Before the case was transferred to this district, a judge considered this evidence and found:
There is a discrepancy between the descriptions in the receipt and in the inventory list — the absence of "CPU" or "Computer." I agree with the government that item G22 seems to have been a desktop computer and G23 ("Computer") could have been a laptop, but I cannot say that the receipt demonstrates a return of that item. Therefore, I direct the government to make further inquiries concerning the laptop computer.United States v. Watts, No. 1-96-CR-290-2 (N.D. Ill. Feb. 15, 2001). In response to this order, the government filed a supplemental response stating that "it has no record of computer equipment being retained following the search of defendant's residence." (Gov't First Supp. Ans, at 1, ¶ 1). Petitioner counters with the sworn declaration of Peggy Ann Watts. According to Watts, "their [sic] was a Lap Top Computer taken from my house on or about August, 1996 and it was never returned to me." (Pet. Resp. to Gov't First Supp. Ans., Exh. A). After reviewing the evidence submitted by both parties, the Court finds that the government seized a laptop computer from petitioner's residence on August 14, 1996, but has lost or misplaced this property. The question is how to compensate petitioner for the loss of his laptop computer.
The government goes on to explain that it would have been standard procedure to turn over all seized property to a Chicago-based DEA agent, who would give each item of non-drug evidence a number and forward it to an evidence custodian. However, neither the DEA nor the IRS, who also participated in the search, "has a record of having retained any computer equipment from the search of defendant's residence." (Gov't First Supp. Ans. at 1-2, ¶ 1).
Rule 41(e) makes no provision for the award of monetary damages. However, petitioner may be entitled to seek damages for the loss of his computer under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See United States v. Pena, 157 F.3d 984, 986 (5th Cir. 1998). Instead of dismissing this case, petitioner should be allowed to amend his pleadings to assert a Bivens claim. Id. Cf. Daniels v. United States, 2002 WL 66160 at *2 (N.D. Tex. Jan. 10, 2002) (Stickney, M.J., rec. adopted by Sanders, J.) (denying leave to amend Rule 41(e) motion to allege Bivens claim where pleadings conclusively establish that such a claim would be time-barred).
The Court expresses no opinion as to whether such a claim is barred by the two-year statute of limitations applicable to Bivens actions. See Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989) (limitations period on Bivens claim begins to run when plaintiff knows or has reason to know of injury giving rise to cause of action).
B.
The government concedes that petitioner is entitled to the return of the seized handguns. However, federal law prohibits possession of a firearm by a convicted felon. 18 U.S.C. § 922(g)(1); see also United States v. Willson, 8 F.Appx. 593, 595 (8th Cir. 2001) (convicted felon not entitled to return of rifle seized by federal agents). The government therefore suggests substituting payment in lieu of returning the handguns. See Cooper v. City of Greenwood, 904 F.2d 302, 306 (5th Cir. 1990) (permitting sale for the benefit of convicted felon claiming ownership of guns). In support of this request, the government provides the affidavit of Edwin Human, an IRS agent who participated in the execution of the search warrant. Human states that the combined "blue book" value of the Ruger P85 9mm pistol and the American Derringer .38 caliber handgun is $405.00. (Gov't Second Supp. Ans., Exh. D). Petitioner does not contest the value of the guns or the procedure recommended by the government.
Accordingly, petitioner's motion should be granted as to the fair market value of the Ruger P85 9mm pistol and the American Derringer .38 caliber handgun. The government should be ordered to pay petitioner the sum of $405.00 in lieu of returning these firearms.
The government states that it "may seek to recover the check through the Federal Debt Collection Procedure Act of 1990" to collect the $13,000 criminal monetary penalty assessed against petitioner. (Gov't Second Supp. Ans. at 3). While the government may institute such a proceeding if it believes that relief is appropriate under the FDCPA, the Court will not prejudge the merits of a case that has not yet been filed or withhold payment to petitioner based on a one sentence conclusory assertion made for the first time in a responsive pleading.