Opinion
No. 00 Civ. 1274 (LTS)(THK)
August 24, 2001
MARY JO WHITE, United States Attorney for the Southern District of New York, By: Matthew L. Biben, Esq., Assistant United States Attorney, New York, New York.
MEMORANDUM OPINION AND ORDER
Plaintiff Edward Lovelace ("Plaintiff') brings this action pro seand in forma pauperis for the return of property seized at his residence pursuant to a search warrant by agents of the Defendant, the United States of America (the "Government"). After pleading guilty before Judge Wood to two counts of bank fraud, Plaintiff moved the Court, by letter to Judge Wood dated November 8, 1999, for the return pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure of property purportedly seized by the Federal Bureau of Investigation (the "FBI") on July 13, 1998, pursuant to a search warrant. Plaintiff's letter request for the return of property was deemed a civil complaint and, on Februaiy 22, 2000, the case was assigned to Judge Cote.
Although Plaintiff filed the instant motion under his criminal case number, the motion was docketed as a civil complaint filed in a separate action, presumably because Plaintiff bad already been sentenced in his criminal proceeding. Where criminal proceedings against the movant have already been completed, a court should construe a Rule 41(e) motion as a civil complaint. Onwubiko v. United States 969 F.2d 1392, 1397 (2d Cir. 1992); see also United States v. David, 131 F.3d 55, 61 (2d Cir. 1997);cf. Kee v. United States No. 01 Civ. 1657 (DLC), 2001 WL 897175, at *1 (S.D.N.Y. Aug. 9, 2001) (construing motion that had been deemed a civil complaint as one under Rule 41(e) because plaintiff's appeal was still pending).
Plaintiff pleaded guilty to criminal charges in this court on November 20, 1998, and a judgment was entered on March 19, 1999. Plaintiff filed a notice of appeal on March 26, 1999, and thereafter filed a petition for a writ of habeas corpus pursuant to section 2255 of Title 28 of the United States Code, seeking to have his conviction vacated or, alternatively, to be re-sentenced. On December 27, 1999, Plaintiff's appeal was withdrawn, without prejudice to its being reinstated by Plaintiff upon written notice within thirty (30) days after a final ruling is issued on Plaintiffs habeas petition.
In that Plaintiff filed his Rule 41(e) motion subsequent to the entry of a judgment in his criminal proceeding and subsequent to the withdrawal of his appeal, the Court will construe Plaintiff's motion as a civil complaint. To the extent, however, that the criminal proceedings against Plaintiff would not properly be viewed as completed given Plaintiffs right to renew his appeal, the Court notes that it would reach the same result were it to analyze Plaintiffs claims under Rule 41(e).
This matter comes before the Court on the Government's unopposed motion to dismiss the action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. By order dated September 5, 2000, Judge Cote, to whom the case was then assigned, directed Plaintiff to file his opposition by September 22, 2000, and the Government to file its reply by October 6, 2000. Plaintiff failed to submit any opposition. In an October 6, 2000 letter to the Court, the Government indicated that it did not intend to serve reply papers and requested that the motion be decided on the papers already submitted in support thereof.
The Court has considered thoroughly the parties' submissions and proffers. For the reasons set forth below, the Government's motion to dismiss the case is denied and its motion for summary judgment is granted subject to the conditions outlined below.
The following facts are uncontroverted. Plaintiff was arrested in July 1998. At the time of his arrest, certain property was seized from Plaintiff's residence pursuant to a search warrant. In accordance with the standard procedures of the FBI, these items were inventoried and placed in the custody of the FBI. (Affidavit of Matthew Biben, dated July 24, 2000 ("Biben Affidavit") at ¶ 3).
As stated above, Plaintiff entered a guilty plea to a two-count information, was sentenced, and a judgment was entered on March 19, 1999. Plaintiffs appeal, filed on March 26, 1999, was subsequently withdrawn, without prejudice to its being reinstated after a final ruling on Plaintiff's pending habeas corpus petition. To date, no such ruling has been made.
The Government does not challenge Plaintiffs ownership of the property sought, but, rather, contends that in view of the fact that Plaintiffs appeal is being held in abeyance pending a decision on his habeas petition, the seized property may still be necessary in connection with further prosecution of Plaintiff. The items seized by the Government on July 13, 1998, include various computer and computer-related items. (Biben Affidavit at ¶ 4). Many of these items, the Government alleges, were the tools used in Plaintiffs counterfeit trade production and constitute evidence of the criminal enterprise in which Plaintiff and others were engaged. (Id.). Additionally, the Government asserts that certain items seized from Plaintiff may be necessary for use as evidence in the criminal prosecutions of Plaintiffs alleged confederates, Mark Ernst Remy ("Remy") (United States v. Remy, No. 98 Cr. 1381 (KMW)) and Arthur Guerra ("Guerra") (United States v. Guerra No. 98 Mont. 1420).
At the time the Govermnent submitted its papers in support of the instant motion, the criminal proceeding against Remy was still pending; however, subsequent to the filing of such papers, Remy was sentenced and the case, United States v. Remy, No. 98 Cr. 1381 (KMW), was closed.
The Government has confirmed that all of the items Plaintiff seeks to have returned remain in the possession of the FBI. (Biben Affidavit at ¶ 5). The Government represents that, at a time convenient to the parties, it will identify and make available to Plaintiff or his designee any property which is not evidence and which is within the Government's possession, custody and control, provided that no seizure order is entered in Plaintiffs underlying criminal action. Those items which may be used as evidence in the previously mentioned criminal prosecutions against Plaintiff, Remy and Guerra will, according to the Government, be made available to Plaintiff at the close of the respective proceedings. (Id.).
Motion to Dismiss
Lack of Subject Matter Jurisdiction
The Government contends that there is no case or controversy before this Court because the Government has agreed to make available for retrieval by Plaintiff or his designee at a mutually convenient time any property which will not be needed as evidence and which is within the Government's possession, custody and control, and to return all of the remaining evidentiary items at the conclusion of the relevant criminal proceedings. Accordingly, it argues, the Court lacks subject matter jurisdiction of this action and dismissal pursuant to Rule 12(b)(1) is required.In considering a motion to dismiss for lack of subject matter jurisdiction, the Court must take as true the factual allegations in the complaint. Shipping Financial Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes. 416 U.S. 232, 236 (1974)). The Court is not confined to the complaint, however, and "may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Filetech S.A. v. France Telecom S.A. 157 F.3d 922, 932 (2d Cir. 1998) (citing Antares Aircraft. L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215 (1992)).
The Government argues that its offer to return to Plaintiff in the immediate future all items not needed as evidence in his or his confederates' criminal trials and to return all evidentiary items to Plaintiff on completion of the criminal proceedings renders Plaintiff's case non-justiciable for lack of a case or controversy. The Government relies on Abrams v. Interco Inc., 719 F.2d 23 (2d Cir. 1983) and Murphy v. Equifax Check Servs., Inc., 35 F. Supp.2d 200 (S.D.N.Y. 1999) for this proposition.
In Abrams, the Second Circuit recognized that a justifiable case or controversy no longer exists and that the action is subject to dismissal for lack of subject matter jurisdiction when a defendant tenders all that a plaintiff could recover if his or her individual claims were fully litigated. Abrams, 719 F.2d at 32-33 (2d Cir. 1993); see also Murphy 35 F. Supp.2d at 203-04 (holding that dismissal was warranted where plaintiff no longer had a personal stake in the outcome of the litigation because plaintiff was offered the maximum amount of damages to which she was entitled along with reasonable attorney's fees and costs).
In this case, Plaintiff seeks the immediate return of all property seized by the Government, whereas the Government's offer to return Plaintiff's property is conditioned upon its continued use of the material. The Court finds this case distinguishable from both Abrams andMurphy in that the Government's offer fails to provide Plaintiff with all to which he would be entitled. Cf. Soviero v. United States, 967 F.2d 791, 793 (2d Cir. 1992) (holding Rule 41(e) motion not rendered moot by the Government's offer to turn over property until such property has actually been returned) (emphasis supplied); Bautista v. United States, 813 F. Supp. 187, 190 (E.D.N.Y. 1993) (holding motion for return of property not rendered moot until the Government provides evidence that it has returned property or the Plaintiff withdraws the claim).
The Court accordingly concludes that there is a justifiable case or controversy as to whether Plaintiff is entitled to the immediate return of the property and that it has subject matter jurisdiction of this case.
Failure to State a Claim
The Government's motion is styled as a motion to dismiss, or in the alternative, for summary judgment. Evidence outside of the pleadings is necessary to resolve the issues presented; therefore, the motion will be treated as one for summary judgment. See Fed.R.Civ.P. 12(b)(6). Accordingly, the Government's motion for dismissal pursuant to Rule 12(b)(6) is denied.
Summary Judgment
The Government argues that it is entitled to summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure for reasons identical to those cited in support of its Rule 12(b)(l) motion. In deciding the motion, the Court applies the well-established rule requiring the moving party to prove that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party may do so by submitting affidavits, depositions and admissions that set forth facts which would be admissible at trial. Fed.R.Civ.P. 56(e). When a motion for summary judgment is made and supported in accordance with Rule 56, the nonmoving party must make a showing sufficient to establish the existence of a genuine issue for trial. Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must resolve all ambiguities and draw all inferences in favor of the nonmoving party. Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).
In support of its motion for summary judgment, the Government submits that it will return any items not needed for use as evidence in the criminal prosecutions of Plaintiff and his confederates. In light of the Government's offer, the Court finds that the Government is entitled to summary judgment with respect to such items, subject to its verification of their return. Cf. Strother v. United States, No. 99 Civ. 3772 (TPG), 2000 WL 1449870, at *2 (S.D.N.Y. Sept. 28, 2000).
The Government further argues that it is entitled to judgment as a matter of law given its asserted need for some of the items seized as evidence in the criminal prosecutions of Plaintiff and his confederates. The Second Circuit has recognized that a practical need for the Government's retention of seized property may justify a delay in its return. See Onwubiko, 969 F.2d at 1397-98. The Government's retention of items with possible evidentiary value has been held to constitute such a need. See, e.g. United States v. Camacho, No. S 87 Cr. 624 (RWS), 1988 WL 83431, at *1 (S.D.N.Y. Aug. 1, 1988), aff'd 868 F.2d 1268 (2d Cir. 1988), cert. denied, 493 U.S. 1034 (1990); In the Matter of a Search Warrant for "Premises Located at 233 J.B. Wise Place. Empsall Plaza, Room 21, Watertown, New York.", Misc. No. 1469, 1987 WL 20385, at *3 (N.D.N.Y. Nov. 23, 1987); In re Perillo No. 84 Mont. 0009, 1985 WL 8038, at *2 (E.D.N.Y. Mar. 13, 1985). "Where . . . the Government asserts in good faith that it requires seized property for use as evidence in related criminal proceedings, the Government may continue to hold the property while its need for the property as evidence continues." Vega v. United States, No. 00 Civ. 8920 (AGS), 2001 WL 823874, at *2 (S.D.N.Y. July 20, 2001) (citations omitted). The property used as evidence must be returned once the proceedings to which it relates have concluded. United States v. Davis. No. 00 Civ. 8296 (SHS), 2001 WL 47003, at *2 (S.D.N.Y. Jan. 17, 2001).
There is no dispute that the Government may, at a minimum, need certain items as evidence against Plaintiff given Plaintiff's right to reinstate the appeal of his conviction upon the issuance of a decision on his habeas petition. In that Plaintiff has not opposed the instant motion, he has failed to meet his burden of setting forth "specific facts showing that there is a genuine issue for trial." Fed.R.Crim.P. 56(e). The Court therefore finds that the Government is entitled to judgment as a matter of law with respect to those items needed as evidence.
The Government, however, has neglected to identify the items which fall into that category. Upon the filing of an itemized report by the Government of those items of property seized from Plaintiff which the Government is retaining for potential use in further criminal proceedings, the Court will grant summary judgment in favor of the Government. With respect to each item identified in the report, the Government shall specify the criminal proceeding(s) for which it is being retained and confirm its undertaking to return the items following the conclusion of the relevant proceeding(s).
CONCLUSION
The Government's motion to dismiss is denied. The Government is directed to file its itemized report of those items it plans to use as evidence within twenty-one (21) days from the date of this Opinion. The Government is further directed to return to Plaintiff or his designee all items not recorded on the aforementioned report, at a time mutually convenient to the parties, but in no event more than forty-five (45) days from the date of this Opinion, and to file an affidavit with the Court certifying the return. Upon the filing and service upon Plaintiff of such report and certification with a proposed order granting the Government's motion for summary judgment, the Court will grant summary judgment in favor of the Government. Additionally, the Government is expected to communicate with Plaintiff regarding the return of the remaining evidentiary items at the conclusion of the relevant criminal proceeding(s).
SO ORDERED.