United States v. Brown, Criminal Action No. 05-02-6 (BAH)

• Decision Date: 05 May 2016
• Docket Number: Criminal Action No. 05-02-6 (BAH)
• Citation: 185 F.Supp.3d 79
• Parties: United States of America, v. Xavier Valentine Brown, Defendant.
• Court: U.S. District Court — District of Columbia

185 F.Supp.3d 79

United States of America,

v.Xavier Valentine Brown, Defendant.

Criminal Action No. 05-02-6 (BAH)

United States District Court, District of Columbia.

Signed May 5, 2016

Mitchell Mark Seltzer, William John O'Malley, Jr., Emory Vaughan Cole, U.S. Attorney's Office, Washington, DC, for United States of America.

Quentin Douglas Driskell, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Defendant Xavier Valentine Brown, proceeding pro se , filed a motion, on January 15, 2014, pursuant to Federal Rule of Criminal Procedure 41(g), for the return of personal property and cash allegedly seized from him by Federal Bureau of Investigation ("FBI") agents at the time of his arrest on January 6, 2005. Def.'s Petition for Return of Prop. Pursuant to Fed. R. of Crim. P. 41(g) by Way of Affidavit by Xavier Valentine Brown ("Def.'s Pet.") ¶ 4, ECF No. 149.¹ In response, the government has returned some of the items seized, denies seizing some items described by the defendant, and claims to have administratively forfeited or have a continuing evidentiary need for the rest of the items. Gov't's Opp'n to Def.'s Pro Se Fed. R. Crim. P. 41(g) Mot. for Return of Property ("Gov't's Opp'n"), at 1–2, ECF No. 150; Gov't's Supp. Mem. Opp'n ("Gov't's Supp. Opp'n"), at 6, ECF No. 154; Gov't's Response to Court's May 3, 2016 Minute Order ("Gov't's Certification") at 1 n.1, ECF No. 156; id. , Ex. 1 ("Ervin Aff.") at 3, ECF No. 156-1. Upon review of the parties' submissions, the petition is denied.

I. BACKGROUND

The defendant was arrested on January 6, 2005 and convicted by a jury one year later, on January 6, 2006, of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. See Verdict Form, ECF No. 80 at 1; Def.'s Pet. ¶ 3 (citing United States v. Brown , 508 F.3d 1066, 1068 (D.C.Cir.2007) ). He was subsequently sentenced on April 21, 2006 to a term of 135 months of incarceration, followed by a five-year term of supervised release, and fined $4,285. See J. and Commitment Form, ECF No. 89 at 1-5.

"At the time Brown was arrested, he had a cell phone in his hand ... [and] [f]our other cell phones were found in the car Brown was driving. Two notebooks were also recovered from Brown's vehicle." United States v. Brown , 508 F.3d at 1069. "The notebooks and the phones were entered into evidence at trial." Id . at 1069–70. The defendant now seeks return of these five phones and the two notebooks, which he apparently refers to as "Writing Pads," as well as other items that he claims were seized from him at the time of his arrest. He summarizes the items at issue in his pending motion for return of property as follows:

[#1.] U.S. Currency of over Seven Thousand ($7,000) dollars;

[#2.] Wallet with Driver's License and Credit Cards;

[#3.] House Keys;

[#4.] Gold Chain with a Jade Pendant;

[#5.] Wedding Band made of Gold and Diamonds;

[#6.] Diamond Earrings;

[#7.] Red Rope Belt;

[#8.] Black North Face Jacket;

[#9.] Men's Dress Shirts;

[#10.] Compact Discs;

[#11.] Writing Pads;

[#12.] Cell Phones and Phone Accessories.

Def.'s Pet. ¶ 53.

With respect to the twelve listed assorted items sought by the defendant, the government argues, first, that the U.S. currency (#1) was administratively forfeited on June 13, 2005 "after proper notice had been given to all known parties and after no claims contesting the proposed forfeiture had been filed." Gov't's Opp'n at 2–4. Second, the government opposes return of the five cell phones (#12) and two notepads (#11) because the items are being "retained ... as evidence for the prospective prosecution of ... Jose Meneses," a named co-defendant in the defendant's criminal case. Id . at 1, 4. Third, the government indicates that the FBI has no record of seizing from the defendant any diamond earrings (# 6), a black North Face jacket (#8), men's dress shirts (#9), or compact discs (#10) and, consequently, these items cannot be returned. Id. at 4, 7. Finally, the government does not object to returning the remaining items—a wallet with driver's license and credit cards (#2), house keys (#3), a gold chain with a jade pendant (#4), a wedding band made of gold and diamonds (#5), a red rope belt (#7), and four cell phone chargers (part of #12)—because these items have no evidentiary value. Gov't's Opp'n at 3, 6.

On May 3, 2016, the Court directed the government to submit a certification from the FBI "denying or otherwise indicating whether the FBI has any record of seizing from the defendant any diamond earrings, a black North Face jacket, men's dress shirts, or compact discs." Minute Order, dated May 3, 2016. On May 4, 2016, the government filed an affidavit from a FBI Special Agent "intimately familiar" with the defendant's investigation, arrest and prosecution, stating that "the FBI never seized" these items.² Ervin Aff. at 3. Furthermore, the Special Agent avers that he has returned to the defendant the following items: miscellaneous paperwork and various bankcards³ (part of #2), a ring of keys (#3), a gold chain (#4), a gold ring (#5), a red rope belt (#7), and four cell phone chargers (part of #12). Id.

II. LEGAL STANDARD

Rule 41(g)"allows the owner of property the government has seized in a search to seek its return." In re Sealed Case , 716 F.3d 603, 605 (D.C.Cir.2013). This rule provides that "[a] person aggrieved by ... the deprivation of property may move for the property's return." FED. R. CRIM. P. 41(g). The D.C. Circuit has expressed the " ‘general rule [ ] that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated.’ " United States v. Farrell , 606 F.2d 1341, 1343 (D.C.Cir.1979) (quoting United States v. LaFatch , 565 F.2d 81, 83 (6th Cir.1977) ); see also United States v. Hubbard , 650 F.2d 293, 303 (D.C.Cir.1980) ("[T]he party from whom materials are seized in the course of a criminal investigation retains a protectible property interest in the seized materials.").

While lawfully seized property "may be retained pending exhaustion of its utility in criminal prosecutions," Hubbard , 650 F.2d at 303 ; see also Farrell , 606 F.2d at 1347 ; United States v. Wilson , 540 F.2d 1100, 1103–04 (D.C.Cir.1976) ("[O]nce an item of property is no longer pertinent to a criminal prosecution, the item may be returned on application to the same criminal court."), seized property that is "contraband or statutorily forfeit ... need not be returned at all," Hubbard , 650 F.2d at 303 n. 26 ; see also Farrell , 606 F.2d at 1347. The D.C. Circuit has instructed that "the district court has both the jurisdiction and the duty" to ensure the return "to the defendant [of] property seized from him in the investigation but which is not alleged to be stolen, contraband, or otherwise forfeitable, and which is not needed, or is no longer needed, as evidence." Wilson , 540 F.2d at 1101 ; see also United States v. Price , 914 F.2d 1507, 1511 (D.C.Cir.1990) (per curiam) (summarizing holding in Wilson, at 1101, 1103,, that " ‘the District Court has both the jurisdiction and the duty to ensure the return’ of the defendant's property but only when ‘no government claim lies' against that property").

Rule 41(g) motions made after the conclusion of criminal proceedings are treated as civil actions against the government and, thus, subject to the six-year statute of limitation under 28 U.S.C. § 2401(a).⁴ Alaska Cmty. Action on Toxics v. U.S. E.P.A ., 943 F.Supp.2d 96, 102 (D.D.C.2013) ("The D.C. Circuit has held, and recently affirmed, that a court ‘lacks subject matter jurisdiction to hear a claim barred by section 2401(a).’ " (citations omitted)); see also Williams v. United States , Civil Action No. 13–325 (JDB), 2013 WL 2456109, at *2 (D.D.C. June 6, 2013) (applying six-year statute of limitation under § 2401(a) to Rule 41(g) claim).

III. DISCUSSION

At the outset, the government concedes that certain items seized from the defendant are of no evidentiary value and, consequently, have already returned those items—miscellaneous paperwork and various bankcards (#2), a ring of keys (#3), a gold chain (#4), a gold ring (#5), a red rope belt (#7), and four cell phone chargers (#12)—to the defendant. See Gov't's Opp'n at 6; Ervin Aff. at 3. Accordingly, the defendant's motion with respect to these items is denied as moot. Second, as noted, the government has certified that some of the listed items were never seized from the defendant during his arrest and, therefore, are not in the FBI's possession. Gov't's Opp'n at 7; Ervin Aff. at 3. Consequently, the defendant's motion with respect to the diamond earrings (# 6), a black North Face jacket (#8), men's dress shirts (#9), and compact discs (#10) is denied.

The remaining items identified by the defendant for return are either subject to administrative forfeiture or are being retained for use in other criminal proceedings. Consequently, for the reasons discussed in more detail below, the defendant's motion as it pertains to these remaining items is also denied.

A. THE U.S. CURRENCY (#1) HAS BEEN ADMINISTRATIVELY FORFEITED BARRING RECOUPMENT

The defendant seeks return of $7,176 seized from him at the time of his arrest, but this money has already been administratively forfeited, pursuant to 21 U.S.C. § 881(a)(6). Def.'s Pet. ¶ 4. Section 881(a)(6) authorizes forfeiture of "moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance ..., all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate any violation of this subchapter." See Gov't's Opp'n, Ex. 3 (Decl. of Admin. Forfeiture) at 10, ECF No. 150-1.

The law is well-settled "that once the Government initiates an administrative forfeiture proceeding and the property is not the subject of an ongoing criminal proceeding, the District Court has no jurisdiction to resolve the issue of return of property." United States...