Rufu v. U.S.

• Decision Date: 28 March 1994
• Docket Number: No. 817,D,817
• Citation: 20 F.3d 63
• Parties: Dekalu Add RUFU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 93-2459.
• Court: U.S. Court of Appeals — Second Circuit

Page 63

20 F.3d 63

Dekalu Add RUFU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 817, Docket 93-2459.

United States Court of Appeals Second Circuit.

Submitted Jan. 14, 1994.

Decided March 28, 1994.

Dekalu Add Rufu, pro se.

Zachary W. Carter, U.S. Atty. for the Eastern District of New York, Brooklyn, NY (Emily Berger and Lauren J. Resnick, Asst. U.S. Attys., Brooklyn, NY, of counsel), for respondent-appellee.

Before: MINER and MAHONEY, Circuit Judges and RESTANI, ^* Judge.

PER CURIAM:

Petitioner-appellant Dekalu Add Rufu appeals from a June 22, 1993 order of the United States District Court for the Eastern District of New York (Glasser, J.) denying his motion for the return of personal property seized from him at the time of his arrest, the district court having found that the Government already had returned the property. Rufu also has moved in this Court for the return of his property. For the reasons that follow, we reverse the order of the district court and remand for further proceedings. We deny the motion filed by Rufu in this Court.

BACKGROUND

Rufu was arrested at the JFK International Airport on May 31, 1991, and subsequently was convicted, on his plea of guilty, of importing heroin, in violation of 21 U.S.C. Sec. 952(a). He was sentenced to a 33-month term of imprisonment. At the time of his arrest, agents of the Drug Enforcement Administration ("DEA") seized from Rufu two pieces of luggage containing miscellaneous items including clothing, jewelry and cash.

On January 1, 1993, Rufu filed a motion in the district court requesting the return of the property seized from him. In particular, Rufu stated that the seized property consisted of "two Suitcases containing ... personal belongs [sic] (clothes, Jewelries, Black leather coat, Documents and others)." By letter dated June 22, 1993, the Government advised the district court that Rufu's property had been returned to him as follows: First, on June 5, 1991, a money order for $262.50 was sent to Rufu. Second, in October of 1991, two pieces of luggage--a "Black 'GERHARD' Model Garment Bag" and a "Brown imitation leather mini duffel bag"--were sent to Rufu's designated recipient, "Moses Akinfeleye," at 116-20 131st St., Queens, NY. The items of luggage were listed on a form entitled "Disposition of Non-Drug Evidence," prepared by the DEA in October of 1991. Return receipts indicated that the luggage was received by the addressee. Copies of the form and receipts were included with the letter to the district court. Third, a watch, a yellow cross and an empty wallet were returned directly to Rufu in July of 1992. Finally, Rufu's Nigerian passport and resident alien card were sent to the INS.

The district court concluded that Rufu's property already had been returned and dismissed the action the same day it received the Government's submissions. This appeal followed.

DISCUSSION

The district court where a defendant is tried has ancillary jurisdiction to decide the defendant's post-trial motion for 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). That the Government has destroyed or otherwise disposed of the property sought by the movant does not render the motion moot, since the court has authority to award damages in lieu of the equitable relief sought. See Soviero, 967 F.2d at 792-93; Mora, 955 F.2d at 159-61. At the very least, the district court was required to take evidence and make factual findings to identify any items still in the possession of the Government and any items that might have been lost. The district court did not follow the proper procedure in this case, because it dismissed Rufu's motion based on the letter and accompanying documents submitted by the Government. The Government did not file an answer, nor did it file a motion to dismiss. Rufu was not even given an opportunity to respond to the Government's submission, since the district court denied Rufu's motion the day it received the submission. Even if we could ignore the procedural defects in this case, we would be constrained to reverse because there was insufficient evidence for the district court to conclude that all of Rufu's property had been returned.

The Government contends that the luggage containing Rufu's property was shipped to his designated representative. According to Rufu, his property consisted of a "Black sport bag with wheels, and grey bag (like tennis bag)," rather than the luggage described in the Government's records. Rufu further contends that the Government sent the property to the wrong address in that his designated recipient was named Akinfalewo, not Akinfeleye and that...