U.S. v. Ibrahim

• Decision Date: 14 April 2008
• Docket Number: No. 07-50153.,07-50153.
• Citation: 522 F.3d 1003
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tamer Adel IBRAHIM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

522 F.3d 1003

UNITED STATES of America, Plaintiff-Appellee, v. Tamer Adel IBRAHIM, Defendant-Appellant.

No. 07-50153.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 2008.

Filed April 14, 2008.

James W. Spertus, Los Angeles, CA, and Ronald Richards, Beverly Hills, CA, for the defendant-appellant.

Thomas P. O'Brien, United States Attorney, Christine C. Ewell, Assistant United States Attorney, and Steven R. Welk, Assistant United States Attorney, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CR-00-00852-CA-01.

Before: J. CLIFFORD WALLACE, RONALD M. GOULD, and SANDRA S. IKUTA, Circuit Judges.

WALLACE, Circuit Judge:

Tamer Adel Ibrahim (Tamer) appeals from the district court's denial of his motion for return of property, which he filed pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure. There were no criminal charges pending at the time he filed the motion, so the district court treated it as a civil complaint governed by the Federal Rules of Civil Procedure. The principal question before us is whether the court erred when it applied a preponderance of evidence standard to resolve the summary judgment motion, rather than determining whether there was a material fact in dispute and, if not, whether the government prevails as a matter of law. Second, we must decide Tamer's request that we apply the doctrine of judicial estoppel to the amount of currency seized from his apartment. The district court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We reverse.

I.

In December 1999, a task force of state and federal law enforcement officers executed a search warrant on Tamer's apartment in Los Angeles, California. Tamer was suspected in a wide-ranging conspiracy to import and traffic MDMA, the drug commonly known as ecstasy. During the search of Tamer's apartment, officers seized a total of $488,970.00 in U.S. currency. They discovered $240,000.00 in a bag outside the apartment, $221,000.00 in a safe, $485.00 on top of a dresser, and $27,485.00 elsewhere throughout the apartment. Tamer was eventually convicted of conspiracy to import and distribute MDMA in violation of 21 U.S.C. § 963 and conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h). At sentencing, the government and Tamer both concurred in a presentence report (PSR), which mistakenly listed the total amount of currency seized from his apartment as $981,485.00. The mistake apparently stemmed from a transcription error that listed $485,000.00 as the amount found on Tamer's dresser instead of $485.00. Tamer was ultimately sentenced to 188 months in prison, and ordered to pay a $4.5 million fine and $4.5 million in restitution.

Several other defendants were indicted for crimes relating to the same MDMA conspiracy, including Tamer's cousin, John Ibrahim (John). The confusion in this case stems from the government's failure to distinguish the two cousins. The government instituted forfeiture proceedings against Tamer's property in January 2000. They initially mailed notice of these proceedings to Tamer's Los Angeles apartment, but addressed the notice to John. When it was returned as undeliverable, the government contacted John's attorney of record. He indicated that John had a new attorney. When contacted, that attorney informed the government that John was being detained at the Metropolitan Detention Center (MDC) in Los Angeles. On May 5, 2000, the government sent notice directly to John at the MDC. It also published notice of the forfeiture in a newspaper of general circulation. Receiving no objection, the government summarily forfeited Tamer's property on June 12, 2000. The government forfeited an additional $859.73 on October 5, 2000 to account for interest income that was inadvertently left out of the original forfeiture. The notice procedures followed by the government for this amount were identical to those preceding the June 12 forfeiture.

Five years later, in January 2006, Tamer filed a motion for return of property, pursuant to Federal Rule of Criminal Procedure 41(g). He alleged that he never received notice of the government's forfeiture proceedings. The government responded, still under the mistaken impression that John and Tamer were the same person. When Tamer pointed out the government's mistake, it filed a supplemental memorandum arguing, among other things, that Tamer had received actual notice of the forfeiture.

In September 2006, the district court issued an order denying Tamer's motion, but ordering the parties to submit supplemental briefs on the issue of actual notice. The court held:

It appears that the government asserts that a factual dispute exists as to whether movant had actual notice of the forfeiture proceeding, given the fact that the government did notify John Ibrahim and Ronald Richards and published notification in the newspaper. Thus, pursuant to United States v. Ritchie, the Court concludes that this motion should be converted to a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

The government filed a memorandum and evidence in support of actual notice of forfeiture. It argued that actual notice should be imputed to Tamer, even though notice was never sent to him directly. The government pointed to telephone recordings from the MDC which showed that Tamer and John spoke frequently in the months leading up to the forfeiture. The recordings also demonstrated that the two men had discussed how the forfeiture process worked generally. Notably, the government did not have any tapes showing that Tamer and John spoke after John received the May 5, 2000 notice at issue in this case. Nevertheless, the government concluded that "[b]ased on their frequent and extensive telephone conversations and given their close familial relationship, it is inherently unlikely" that John failed to inform Tamer of the notice he received on May 5, 2000. In the alternative, the government argued that Tamer received notice through his current attorney, Ronald Richards, who also served as John's attorney "during much of the pendency of the forfeiture action."

In response, Tamer pointed to his sworn testimony in which he stated that he had no recollection of ever discussing the forfeiture proceeding with his cousin. In addition, John testified that he did not remember discussing the issue, and in fact has not spoken with Tamer at all since March of 2000. This statement conflicts with Tamer's testimony, stating that the two continued to speak frequently through July 2000. Finally, Tamer argued that "[a]t no time was [he] represented by Ronald Richards in connection with the case in front of this Court prior to July 26, 2004."

On January 2, 2007, the district court issued an order denying Tamer's motion for return of property. The court acknowledged that it was required to treat Tamer's Rule 41(g) motion as a civil complaint, governed by the Federal Rules of Civil Procedure, but held:

[T]he government has provided circumstantial evidence from which the trier of fact could reasonably conclude that movant had actual notice of the forfeiture proceedings. Contrary to movant's argument, the Court need not find as a matter of law that movant had actual notice. Rather, the Court must consider whether the government has shown, by a preponderance of the evidence, that movant had actual notice.

Applying this standard, the court found that Tamer's testimony was not credible, and held that "the government has shown by a preponderance of the evidence that John Ibrahim or his attorneys did, in fact, inform movant about the forfeiture proceedings ...."

II.

Tamer filed his motion for return of property under Federal Rule of Criminal Procedure 41(g). Because there were no criminal proceedings pending at the time of filing, the district court properly treated the motion as a civil complaint governed by the Federal Rules of Civil Procedure. See United States v. Ritchie, 342 F.3d 903, 906-07 (9th Cir.2003).

We have only had one occasion to address the procedural framework applicable to a Rule 41(g) motion when no criminal case is pending. In Ritchie, we treated the government's opposition to a Rule 41(g) motion as the equivalent of a 12(b)(6) motion to dismiss. Id. at 907. Because the district court considered evidence outside the pleadings, however, we remanded so that the government's opposition could be properly converted to a Rule 56 motion for summary judgment, consistent with the Federal Rules of Civil Procedure. Id. at 907, 911.

In the present case, the district court applied Ritchie and held that "a factual dispute exists as to whether movant had actual notice of the forfeiture proceeding," therefore "this motion should be converted to a motion for summary judgment." Unlike the court in Ritchie — which converted the government's opposition into a motion for summary judgment — the district court in this case appears to have converted Ibrahim's underlying motion for return of property into a motion for summary judgement. This was an error. Under the Federal Rules of Civil Procedure, it was the equivalent of converting a plaintiff's complaint into a motion for summary judgment.

The district court compounded this error at the next stage of proceedings. Instead of applying a summary judgment standard, it moved directly to the merits of Ibrahim's claim. The court concluded that it was not required to "find as a matter of law that movant had actual notice" and went on to decide the motion under a preponderance of the evidence standard.

This ad hoc approach may be appropriate in a regular Rule 41(g) proceeding with a criminal case pending. In that situation, the Rule provides little guidance as to what procedures the courts are required to follow, other than the broad...