Soviero v. U.S., 1052

• Citation: 967 F.2d 791
• Decision Date: 24 June 1992
• Docket Number: D,No. 1052,1052
• Parties: Vincent SOVIERO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 91-2521.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 791

967 F.2d 791

Vincent SOVIERO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 1052, Docket 91-2521.

United States Court of Appeals, Second Circuit.

Submitted March 25, 1992.

Decided June 24, 1992.

Vincent Soviero, pro se, Petersburg, Va., filed a brief for petitioner-appellant.

Andrew J. Maloney, U.S. Atty., E.D. New York, Brooklyn, N.Y. (Robert L. Begleiter Before: NEWMAN and CARDAMONE, Circuit Judges, and WOOD, District Judge. ^*

Richard K. Hayes, Asst. U.S. Attys., of counsel), filed a brief for respondent-appellee.

CARDAMONE, Circuit Judge:

Vincent Soviero, pro se and in forma pauperis, appeals from an order of the United States District Court for the Eastern District of New York (Sifton, J.) denying his motion, construed by the court as a motion under Rule 41(e) of the Federal Rules of Criminal Procedure, for the return of seized property. The issue presented by this appeal is whether a prisoner's motion for the return of property seized at the time of his arrest is rendered moot because the government either has destroyed it or declared it forfeit. We answer this question in the negative and, accordingly, reverse the order that denied appellant's motion as moot, and remand the case for further proceedings.

BACKGROUND

After Soviero was arrested on December 28, 1988 for illegal possession of a firearm and bail jumping, U.S. Marshals seized certain property from his apartment, which they had searched pursuant to a warrant. Prior to jumping bail, appellant had been charged with drug conspiracy and bribery, but these charges were dropped for lack of evidence. In October 1990 he pled guilty to the firearm and bail jumping charges and was sentenced to consecutive prison terms of 48 months and seven months, respectively. In January 1991--a little over two years after his property had been seized--Soviero wrote to the Assistant United States Attorney (AUSA) who had prosecuted his case, requesting its return. This request was renewed in a second letter of May 15, 1991. Both letters went unanswered.

Between May 1989 and April 1991, some of Soviero's property--including an automobile, $28,000 in U.S. currency, and electronic equipment valued at $7,050--was forfeited pursuant to statutory administrative proceedings. On March 6, 1991 and May 9, 1991, other items--some, but not all, of which were designated by the government as drug paraphernalia--were destroyed. Still other property--including computer hardware worth approximately $6,000, computer software of undetermined value, and various miscellaneous items--remained in the government's possession.

On July 1, 1991 appellant filed a motion in the district court seeking the return of his seized property. The government was directed on July 22 to show cause why the relief should not be granted, and in response asked for an extension of time to August 19 because the AUSA assigned to the case was away and would not return until August 5. On August 6 Soviero's computer software was destroyed, and his computer hardware was transferred to the Drug Enforcement Administration (DEA) for administrative forfeiture proceedings. In a letter to the district court dated August 15 the government declared that all of Soviero's property that had not been forfeited, destroyed, or transferred to the DEA would be turned over to him.

Construing Soviero's motion as one made under Rule 41(e) of the Federal Rules of Criminal Procedure, the district court on September 30, 1991 denied it as moot, "since the United States consents to the return of property not subject to forfeiture proceedings."

DISCUSSION

We have held that a district court where a defendant is tried has ancillary jurisdiction to decide a defendant's post-trial motion for the return of seized property. See Mora v. United States, 955 F.2d 156, 158 (2d Cir.1992). Where criminal proceedings are no longer pending against the defendant such motion is treated as a civil After it had been ordered to show cause why Soviero's software should not be returned to him, the government, according to the complaint, high-handedly destroyed it. If the software held records of drug transactions--as the government apparently believes it did--the appropriate means to establish that fact as a reason for refusing to return the property would have been to present the software to the district court. According to Soviero, the software "represented many months of difficult programming which resulted in several programs of some possible commercial value." On remand, the district court should receive evidence with respect to the value of the software and the circumstances of its destruction. Appellant should be permitted to seek damages if the district court determines the government's conduct renders it liable for such. See Mora, 955 F.2d at 161; Martinson, 809 F.2d at 1370.

                equitable proceeding even if styled as being pursuant to Fed.R.Crim.P. 41(e).  United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir.1987).   Simply because the government destroys or otherwise disposes of property sought by the movant, the motion for its return is not thereby rendered

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