United States v. Decker, Crim No. 2:16-cr-20666
| Decision Date | 28 October 2019 |
| Docket Number | Crim No. 2:16-cr-20666 |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. TIMOTHY KENNETH DECKER, Defendant/Petitioner. |
| Court | U.S. District Court — Eastern District of Michigan |
For the reasons set forth below, it is recommended that Defendant/Petitioner Timothy Kenneth Decker's January 18, 2018 motion for return of property under Fed. R. Crim. P. 41(g) be GRANTED IN PART and DENIED IN PART. (ECF 42.)
On October 4, 2016, Defendant/Petitioner Timothy Kenneth Decker ("Defendant") was indicted for production and possession of child pornography. (ECF 16.) The Indictment also sought, upon Defendant's conviction, forfeiture of property related to the charges pursuant to 18 U.S.C. § 2253. (Id. at 7-8.) On July 24, 2017, Defendant pleaded guilty, pursuant to a plea agreement,1 to charges of production and possession of child pornography in violation of 18 U.S.C. § 2251(a) (ECFs 31 & 39), and on January 3, 2018, he was sentenced to 187 months' imprisonment (ECF 40). Defendant is presently incarcerated at the Federal Bureau of Prisons FCI Milan in Milan, Michigan. See www.bop.gov, "Inmate Locator," (#55009-039).
On January 18, 2018, Defendant filed the present motion for return of property "requesting the return of personal property taken during [his] home search on September 19, 2016 other than what was listed as forfeiture by the court," including but not limited to the following items: "WOW Cable Modem, Belkin Router, Attaching cables for computers (misceleaneous) [sic], 2 First Aid Kits, 3 sets of road flares (3 per set), 1 Tom Tom GPS, 1 set of keys (Approximately 20 on ring), 5 Garage door remote controls, [and] 1 Computer formerly used for a Photo Booth." (ECF 42 (emphasis added).) In response to the motion, the Government stated that it has no objection to the return of property seized by the FBI or WarrenPolice Department that does not contain contraband, and that it has in its possession, and will return to Defendant, the WOW cable modem, Belkin router, keys, and garage door remote controls. (ECF 46.) Further, the Government asked for additional identifying information, including a serial number, for the computer Defendant requested, and averred that it has none of the remaining items listed in Defendant's motion. (Id.) On July 8, 2019, Judge Borman referred the motion to me for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF 47.)
To obtain additional information necessary to resolve the motion, the Court entered an interim order on July 31, 2019, requiring that: (1) Defendant file both a notice with the Court providing a serial number or more specific identifying information for the computer requested in his motion, and "any documentation in his possession that more specifically identifies all of the items seized by the FBI and the Warren Police Department" and, (2) the Government file an affidavit addressing whether it could produce the computer requested based on any further information supplied by Defendant, and "supporting its contention that any requested items . . . are or are not in its possession, including whether the item(s) were seized, and, if so, how each item was disposed of." (ECF 48 at 2-3.)
Defendant responded to the Court's interim order on August 16, 2019, attaching documentation listing the items seized from Defendant as part of aSeptember 19, 2016 search warrant, providing further identifying information, but not a serial number, for the computer requested in the motion, and asking for the return of a number of items, many electronic, that were not originally requested in his motion for return of property. (ECF 49.) Further, Defendant's response states, "Road Flares, First Aid Kits, and Tom Tom GPS after due diligence were found not to have been taken." (Id.) On August 30, 2019, the Government filed its affidavit in accordance with the Court's interim order: (1) asserting that the road flares, First Aid kit, Tom Tom GPS, and attaching cables are not listed in the evidence log; (2) agreeing to release to Defendant's representative one set of keys (with approximately 20 keys on the ring) and five garage door remote controls and; (3) stating: (ECF 50 at 2-3.) The Government attached the February 7, 2017 Notice of Seizure of Property and Initiation of Administrative Forfeiture Proceedings under 18 U.S.C. § 983, the list of assets seized, and the April 24, 2017 Declaration of Administrative Forfeiture of those assets, pursuant to 18 U.S.C. § 2254. (ECF 50-A.)
Rule 41(g) of the Federal Rules of Criminal Procedure states:
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
Fed. R. Crim. P. 41(g). The general rule followed by district courts is "that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated." Savoy v. United States, 604 F.3d 929, 932 (6th Cir. 2010) (quoting United States v. Hess, 982 F.2d 181, 186 (6th Cir. 1992)). "[W]hen considering a motion to return, the court must balance the legitimate needs of the United States against the property rights of the moving party." United States v. Popham, 382 F.Supp.2d 942, 956 (E.D. Mich. 2005) (citing Sovereign News Co. v. United States, 690 F.2d 569, 577 (6th Cir. 1982)). However, "the person seeking return of property must show that they are lawfully entitled to possess it." United States v. Headley, 50 F. App'x. 266, 267 (6th Cir. 2002). If the movant establishes interest in the property, the burden shifts to the government to demonstrate a legitimate interest in continuing to retain the movant's property.
United States v. Omian, No. 05-80338, 2006 WL 3240555, at *2 (E.D. Mich. Nov. 7, 2006).
Defendant pleaded guilty, however, to production and possession of child pornography in violation of 18 U.S.C. § 2251(a) (ECFs 31 & 39) and was, thus, subject to forfeiture of property seized in connection. 18 U.S.C. § 2253(a). Property subject to forfeiture pursuant to 18 U.S.C. § 2253 may be forfeited in a civil case according to the administrative forfeiture proceedings set forth in 18 U.S.C. § 983. 18 U.S.C. § 2254. Under 18 U.S.C. § 983(a), the government must send notice of civil forfeiture proceedings to interested parties. And "'[a]fter the government initiates forfeiture proceedings and notifies a claimant of the proceedings, a claimant may no longer use Rule 41[g], but must instead submit to the statutory procedures governing civil forfeiture proceedings.'" United States v. One Million Seven Hundred Thousand Dollars ($1,700,000.00) in U.S. Currency, 545 F.Supp.2d 645, 653 (E.D. Mich. 2008) (quoting United States v. One 1974 Learjet 24D, Serial Number 24D-290, Mexican, 191 F.3d 668, 673 (6th Cir. 1999)). "A motion to set aside a forfeiture under 18 U.S.C. § 983(e) is the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute . . . ." United States v. King, 442 F. App'x 212, 213 (6th Cir. 2011).
In his response to the Court's interim order, Defendant acknowledges that the Government did not seize the road flares, First Aid kits, and Tom Tom GPS requested in his motion for return of property. (ECF 49.) Accordingly, the Court should deny Defendant's request for these items. The Government does, however, have in its possession the set of keys and five garage door remote controls listed in the motion, and does not object to their return, stating that a representative for Defendant may retrieve the items from the FBI office in Clinton Township, Michigan. (ECFs 46 & 50.) Further, in its initial March 14, 2018 response to Defendant's motion for return of property, the Government expressed that it had in its possession, and did not object to the return of, the WOW cable modem and Belkin router. (ECF 46 at 2.) These items are not mentioned further in the Government's affidavit in response to the Court's interim order, beyond a statement that Defendant requested the items in his motion. (ECF 50 at 1.)2 Accordingly, per the Government's initial response, Defendant may have a representative call the Warren Police Department Property Office at 586-574-4860, provide the Property Office with compliance number 16-45623 and specify the items to be retrieved. (ECF 46 at 2.)
In his original motion, Defendant also requested the return of "Attaching cables for computers (misceleaneous) [sic]," and a "Computer formerly used for a Photo Booth." (ECF 42.) Even if the movant can establish a property interest, "courts will not grant a motion for the return of property if the government no longer possesses the property." Arispe v. United States, Nos. 03-10124, 00-20013, 2005 WL 3132211, at *5 (E.D. Mich. Nov. 21, 2005) (citing United States v. Francis, 646 F.2d 251, 263 (...
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