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denying Rule 41(g) motion without an evidentiary hearing where the claimant only alleged "general and conclusory assertions, without evidentiary support, that the DEA allegedly seized his property."
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00 Civ. 8820 (JFK), 89 Cr. 644-2 (JFK)
July 11, 2003
OPINION and ORDER
Plaintiff Jose Carlos Sanchez-Butriago ("Sanchez-Butriago"), proceeding pro se, moves pursuant to Fed.R.Crim. 41(g) for the return of property allegedly seized by the Drug Enforcement Administration ("DEA") at the time of his arrest on August 9, 1989. The Government, on May 6, 2003, supplied the Court with declarations and exhibits opposing the plaintiff's motion. For the reasons stated below, the Court denies Sanchez-Butriago's motion to compel the return of his personal property.
Background and Facts
On August 9, 1989, DEA agents arrested Sanchez-Butriago for violation of federal drug laws. On October 23, 1991, following a jury trial held in this Court, Sanchez-Butriago was convicted on six counts: operating a continuing criminal enterprise ("CCE") (Count Nine), in violation of 21 U.S.C. § 848 (a); conspiracy to import more than one kilogram of heroin (Count One), in violation of 21 U.S.C. § 963; importation of more than one hundred grams of heroin (Count Two), in violation of 21 U.S.C. § 960 (a)(1) and 960(b)(2)(A); conspiracy to distribute more than one kilogram of heroin (Count Four), in violation of 21 U.S.C. § 846; distribution of more than 100 grams of heroin (Count Six), in violation of 21 U.S.C. § 841(b)(1)(B); and conspiracy to transfer narcotics outside the United States in violation of 18 U.S.C. § 371. Sanchez-Butriago v. United States, No. 00 Civ. 8820, 2003 WL 354977, at *1 (S.D.N.Y. Feb. 14, 2003). The Court sentenced Sanchez-Butriago to 240 months' imprisonment on the CCE count (Count Nine), 121 months on Counts One and Four, 60 months on Counts Two and Six, and 48 months on Count Ten. Id. All of the sentences were ordered to run concurrently and followed by a five-year term of supervised release.Id. Sanchez-Butriago is currently incarcerated. Id.
Plaintiff claims that upon his arrest, DBA Agent John Wilson ("Wilson") seized the following items belonging to him: a Colombian ID, a Colombian passport, a Colombian driver's license, a watch, a gold wedding ring and $790 in cash. Plaintiff further claims that Wilson inventoried the property and placed the items inside a bag with plaintiff's signature. Plaintiff filed the instant motion pursuant to Rule 41(g) in October 2002, seeking the return of the items that he claims were seized at the time of his arrest in August 1989.
The Government asserts its opposition to plaintiff's request. The Government responds that the DEA has no record of personal property seized from Sanchez-Butriago other than a suitcase he was carrying which was placed in non-drug evidence and destroyed on September 1, 1999. See Wilson Decl., exh. A; see Rocco Decl., exh. A. Plaintiff does not seek return of the suitcase in his 41(g) motion.
The Government submitted a declaration by Wilson, who arrested Sanchez-Butriago, in which he represents that with the exception of the suitcase he does not recall having seized any of the items listed in plaintiff's motion. Wilson Decl., at ¶ 3. Annexed to Wilson's declaration is a DEA-6 Report, signed and dated by him on October 6, 1989, listing all of the items seized by the DEA agents from Sanchez-Butriago at the time of his arrest. Wilson Decl., exh. A. The sole item recorded as taken into custody from the plaintiff is a suitcase. Id. The suitcase is also the sole item listed on the Acquisition of Non-Drug Property and Regulatory Seizures Reports ("Acquisition Reports"), which reports evidence acquired throughout an investigation. Id. Neither the DEA-6 report nor the Acquisition Reports refer to the allegedly seized items.Id. at ¶ 5.
The Government further represents, through the declaration of Special Agent Aldo Rocco ("Rocco"), who maintains plaintiff's case file, that it does not contain any of the allegedly seized items nor do any reports or documents refer to any of the allegedly seized items. Rocco Decl., at ¶¶ 2, 3, 5. Annexed to Rocco's declaration is DEA Form-48a ("Disposition of Non-Drug Evidence"), which regulates the disposition of non-drug evidence. DEA Form-48a refers to the destruction of a suitcase seized in connection with the arrest of plaintiff. See Id. There is no mention of any other personal property relating to Sanchez-Butriago's arrest that was destroyed. Id.
Discussion
I. JurisdictionFed.R.Crim.P. 41(g) provides that "[a] person aggrieved by an unlawful search and seizure 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." Because plaintiff did not make the instant motion until after the criminal proceedings against him were concluded, the Court treats the motion as a civil complaint for equitable relief rather than a motion pursuant to Fed.R.Crim.P. 41(g). See Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992).
The 2002 amendments to Rule 41 reworded and renumbered the substance of Rule 41(e) as 41(g). Gonzalez, No. 01 Civ.10095, 2003 WL 1213172, at *1. These amendments did not enact any substantive changes, merely stylistic changes. Id.
As Sanchez-Butriago is a pro se plaintiff, the court construes his pleadings and papers liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). In doing so, courts of this Circuit have liberally construed pro se claims, such as Sanchez-Burtiago's, "as brought under the Tucker Act, 28 U.S.C. § 1346 (a)(2), for property worth less than $10,000; the Administrative Procedure Act ("APA"), 5. U.S.C. § 702; or the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671." Vasquez v. U.S., No. 94 Civ. 7580, 1996 WL 692001, at *2 (S.D.N.Y. Dec. 3 1996); see Boero v. Drug Enforcement Administration, 111 F.3d 301, 305 n. 4 (2d Cir. 1997).
Although none of the Tucker Act, FTCA, or APA is explicitly raised by the plaintiff, the court in construing his motion liberally considers these as possible means of establishing jurisdiction. The plaintiff seeks the return of his property which is a form of equitable relief. Plaintiff does not seek money damages; therefore, the plaintiff is barred from moving pursuant to either the FTCA or the Tucker Act. See Kosak v. United States, 465 U.S. 848, 852 n. 7 (1984) (FTCA provides jurisdiction over civil actions seeking only money damages against the United States); United States v. Mitchell, 463 U.S. 206, 216 (1983) (claims under the Tucker Act must be for money damages against the United States only). The plaintiff's claim can be construed as being brought under the APA, however r. Polanco v. U.S. Drug Enforcement Administration, 158 F.3d 647, 652 (2d Cir. 1998) (APA "waives sovereign immunity in an action seeking equitable relief from wrongful agency action").
Another possible source of jurisdiction is under the Federal Rule of Criminal Procedure 41(g), pursuant to which Sanchez-Butriago brought this suit. The Second Circuit recognizes that district courts retain ancillary jurisdiction to decide post-trial motions for the return of seized property relating to the plaintiff's original criminal trial. Mora, 955 F.2d at 158; see also Rufu v. United States, 20 F.3d at 65 (2d Cir. 1994); Soviero v. United States, 967 F.2d 791, 792 (2d Cir. 1992). As this Court had original jurisdiction over Sanchez-Butriago's criminal case, it has ancillary jurisdiction over his motion for return of seized property.
II. Statute of Limitations
Claims governed by the Tucker Act, APA, FTCA, as well as any "[r]ule 41(g) claims[,] are subject to a six year statute of limitations as set forth in 28 U.S.C. § 2401(a)." Gonzalez, No. 01 Civ.10095, 2003 WL 1213172, at *2. Section 2401(a) provides that "every civil action commenced against the United States is barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a) (1994). Section 2401(b) provides that "a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues. . . ." 28 U.S.C. § 2401(b) (1994).
Under federal law, a cause of action accrues "when a claimant knows or has reason to know of the injury" that is the basis of his action.Keating v. Carey, 706 F.2d 377, 382 (2d Cir. 1983). In Polanco, the Second Circuit held that a cause of action for the return of property accrues when the plaintiff "discover[s] or ha[s] reason to discover that his property had been forfeited without sufficient notice." 158 F.2d at 654. Consequently, this action, brought under either Rule 41(g) or the APA, accrues at the earliest of the following dates: (1) "at the close of the forfeiture proceedings, however soon after the seizure," or (2) "if no forfeiture proceedings were conducted, at the end of the five-year limitations period during which the government is permitted to bring a forfeiture action, at which time the claimant — without other notice — had reason to know that the forfeiture proceedings had begun (or that the property was being held) without due process." Id. Therefore, "because a claimant has six years to file his claim after it accrues, the claimant may sometimes have a total of eleven years post-seizure [in which to] complaint about the obvious and overt deprivation of his property." Id. (citation omitted); see Matura v. United States, No. 98 Civ. 4716DC, 1999 WL 144498, at *2 n. 1, (S.D.N.Y. March 17, 1999); Gonzalez, 2003 WL 1213172, at *3.
Sanchez-Butriago alleges that his property was seized on the date of his arrest on August 9, 1989. The end of the five-year limitations period during which either the government was permitted to bring a forfeiture action or, if they did not do so, the time when the plaintiff is "on notice that he had been deprived of his property without due process" occurred on August 9, 1994. Gonzalez, 2003 WL 1213172, at *3. Thus, on August 9, 1994 Sanchez-Butriago's claim ciccrued, giving him six years from that date to file a civil claim against the government for the return of his property. Id.; see also 28 U.S.C. § 2401. This six year time period expired on August 9, 2000. Sanchez-Butriago filed his 41(g) motion on June 24, 2002, approximately one year and nine months after the statute had run. The Court concludes that Sanchez-Butriago's claim is time-barred under 28 U.S.C. § 2401. Thus, the Court is without jurisdiction to hear this claim. See Gonzalez, 2003 WL 1213172, at *3. Furthermore, because his claim is time-barred, "an evidentiary hearing would be of no value." Id.
In some limited circumstances a petitioner's otherwise time-barred 41 (g) claim may be saved by the doctrine of equitable tolling. The equitable tolling doctrine allows the courts to toll the statute of limitations where a plaintiff has been "prevented in some extraordinary way from exercising his rights, or h[as] asserted his rights in the wrong forum." Johnson v. Nyack Hospital, 86 F.3d 8, 13 (2d Cir. 1996) (alteration in original) (citations omitted). The burden is on the party seeking the benefits of the equitable tolling doctrine "to establish inequitable circumstances warranting an extension of time," Bowers v. Transportacion Maritima Mexicana, S.A., 901 F.2d 258, 264 (2d Cir. 1990), as well as "his reasonable diligence through the period [he] seeks to have tolled."Johnson, 86 F.3d. at 12. In the present case, Sanchez-Butriago alleges that he wrote two letters to the Court requesting assistance in recovering his allegedly seized property from the Government, dated December 1, 2001 and January 28, 2002. Both letters, however, are outside the statutory period, which expired on August 9, 2000. Furthermore, the plaintiff makes no allegations of unsuccessful attempts to reclaim the property during the statutory period. See Bowers, 901 F.2d at 264 (equitable tolling denied in the absence of any affirmative action by plaintiff to preserve his right to the property during the statutory period). Therefore, the Court holds that the plaintiff's delay in attempting to secure the return of his property was inexcusable and his attempts after the end of the statutory period are insufficient to permit equitable tolling of 28 U.S.C. § 2401(a). The Court holds that the plaintiff's motion for return of property is dismissed as time-barred and lacking in subject matter jurisdiction.
III. Merits of the Plaintiff's 41(g) Motion
Assuming arguendo that Sanchez-Butriago's 41(g) motion was timely, which it is not, the Court would still not grant plaintiff's motion for return of property.
After the plaintiff's criminal trial, "when the property is no longer needed for evidentiary purposes," the burden of proof shifts to the government to justify its continued possession. United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). In cases in which whether the property was ever seized is in question, "once the government . . . bear[s] the burden of proving that it dealt with plaintiff's property in accordance with regulations prescribed in 41 C.F.R. § 128-50.101 or other acceptable standards . . . the burden should then shift to the claimant to demonstrate the existence of the property." Otonoye v. United States, 903 F. Supp. 357, 363 n. 8 (E.D.N.Y. 1995). The Government must prove that the DEA, as a bureau of the Department of Justice, fulfilled its responsibilities pursuant to 41 C.F.R. § 128-50.101. Section 128-50.101 requires the government to:
establish and maintain inventory records of its seized personal property to ensure that: (a) The date the property was seized is recorded; (b) All of the property associated with a case is recorded together under the case name and number; (c) The location of storage of the property is recorded;(d) A well documented chain of custody is kept; and(e) All information in the inventory records is accurate and current.41 C.F.R. § 128-50.101 (1991); see also Rufu, 20 F.3d at 65; Mora, 955 F.2d at 158.
Additionally, "in prior cases, the Second Circuit has reversed district court denials of motions to compel the return of seized property when the Government did not comply with its own requirements." United States v. Cardoria, 897 F. Supp. 802, 804 (S.D.N.Y. 1995); see also Rufu, 20 F.3d at 65 (dismissal inappropriate where district court relies on insufficient evidence, such as representations made by Government referring to DEA records that are not submitted); Mora, 955 F.2d at 158 (dismissal inappropriate where Government failed to submit receipts, log entries, affidavits or other documentation concerning the disposition of property).
In Cardona, the plaintiff moved pursuant to 41(e) to compel the return of property allegedly seized by the DEA during a search of his apartment. Cardona, 897 F. Supp. at 802. The Government opposed the motion, submitting to the Court an affidavit from a DEA officer who was part of the search, as well as a DEA-6 Report, signed by the same officer. Id. at 803. In addition, the Government supplied to the Court two discovery letters sent from the Government to defense counsel, a DEA-48a form, an affidavit from the DEA agent who completed the DEA-48a form, and an Acquisition of Non-Drug Property and Regulatory Seizures Report. Id. The Government affidavits and documentation identify all the items originally seized from the plaintiff but do not mention any of the allegedly seized items. Id. The district court found that the information in the DEA-6 report was "current and accurate" because it was supported by DEA 48-a form ("Disposition of Non-Drug Evidence") and an affidavit from the agent who completed the DEA 48-a form. Id. at 804. The court also noted that the plaintiff supplied no evidence supporting the existence of the allegedly seized property before denying the plaintiff's motion to compel the return of property. Id. at 805. Therefore, the court found that the Government had fulfilled its burden of proof by providing affidavits and documentation supporting its contention that all property relating to the arrest had been properly inventoried and the allegedly seized property did not exist, but that the plaintiff had not fulfilled his burden of proving the existence of the allegedly seized property. Id.; see also Otonoye, 903 F. Supp. at 363 n. 8.
This case is readily distinguishable from Rufu and Mora as the Government supplies ample documentation supporting its motion to dismiss. This case is analogous to Cardona, in that the Government supplies a declaration from Wilson, the arresting officer, accompanied with a DEA-6 Report and an Acquisition of Non-Drug Property and Regulatory Seizures Report. The DEA-6 Report "prove[s]: (1) the identification of the property seized; (2) the date of its seizure; (3) the case name and number to which the property relates; (4) the storage location of the property; and (5) the chain of custody of the property."Cardona, 897 F. Supp. at 804; c. f. Wilson Decl., at exh. A; 41 C.F.R. § 128-50.101. The DEA-6 Report supports the Government's assertions that it dealt with plaintiff's property in compliance with DEA regulations pursuant to 41 C.F.R. § 128-50.101. See Qtonoye, 903 F. Supp. at 363 n. 8. Similarly, the declaration of Rocco, the DEA agent who maintains Sanchez-Butriago's case files, and the DEA-48a form ("Disposition of Non-Drug Evidence Report") identify all non-drug items originally seized from Sanchez-Butriago at the time of his arrest and none of the items Sanchez — Butriago alleges were seized are mentioned. Sanchez-Butriago's allegations are weak in comparison to the substantial body of evidence provided by the Government in support of its position. C.f. United States v. Moloney, 985 F. Supp. 358, 362 (W.D.N.Y. 1997) (finding the Government's substantial body of evidence supporting its position in conjunction with paucity of plaintiff's evidence to demonstrate conclusively that the Government had met its burden). Thus, the Government has met its burden of proving that it properly inventoried plaintiff's property in accordance with regulations.
Once the burden of proof shifts from the Government to the plaintiff, the plaintiff must "demonstrate the existence of the property." Otonoye, 903 F. Supp. at 363 n. 8. Like the plaintiff in Cardona, Sanchez-Butriago has not supplied any evidence that the DEA seized the alleged items. Although plaintiff claims that the allegedly seized items were inventoried at the time of their seizure, the DEA records, which comply with the "regulat[ory] and statutory provisions of procedures to be followed by the DEA," have no mention of the property. Pimentel v. United States Drug Enforcement Administration, 99 F. Supp.2d 420, 430 (S.D.N.Y. 2000). While the Government has the initial burden of proof, the plaintiff has proven neither his ownership of nor the existence of these items. The Government, conversely, has provided the Court with a comprehensive body of evidence. Therefore, assuming arguendo that the plaintiff's 41(g) claim was timely, the Court would nonetheless deny plaintiff's motion for return of property. C.f. Berete v. United States, 112 F.3d 503 (2d Cir. 1996) (Second Circuit found record, including signed waiver, a Customs Declaration and government's representation that property had been returned sufficient for district court to determine that plaintiff's claims were meritless).
Furthermore, assuming that the plaintiff's claim was timely, the court could dismiss plaintiff's motion without an evidentiary hearing. "[E]videntiary hearings are not grant63d as a matter of course . . . general and conclusory assertions will not suffice" to warrant an evidentiary hearing. United States v. Dean, 100 F.3d 19, 21 (5th Cir. 1996) (holding that plaintiff's 41(g) motion did not present a disputed factual issue, and plaintiff was not entitled to an evidentiary hearing where plaintiff alleged no facts to support a 41(g) claim nor sought to rebut the Government's circumstantial evidence); see also United States v. Podlog, 1997 WL 128472, at *2 (2d Cir. Mar. 21, 1997) (holding that the district court has discretion to determine not to hold an evidentiary hearing after the filing of a motion for the return of property based on government's affidavits and receipts stating that it never had possession of the allegedly seized property). Similar to the plaintiff in Dean, Sanchez-Butriago's general and conclusory assertions, without evidentiary support, that the DEA allegedly seized his property would not have been sufficient to entitle him to an evidentiary hearing.
Conclusion
For the foregoing reasons, the Court denies the plaintiff's motion to compel return of property. The Court directs the Clerk to enter judgment for the Government dismissing this action and orders the case closed and removed from the Court's docket.
SO ORDERED.