UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Cr. Case No. xx-088-01(JMF)
:
xxxxxxxxxxxx :
________________________________:
DEFENDANT'S SUPPLEMENTAL BRIEF IN SUPPORT OF
MOTION FOR RETURN OF PROPERTY
This Honorable Court has received opposition from the District of Columbia to Mr. xxxxx' Motion for Return of Property, specifically for the return of his money, on the basis that because the District of Columbia believes that the currency was the illegal proceeds of or was intended for use in exchange for a forfeitable controlled substance, it may institute forfeiture proceedings against the currency pursuant to District of Columbia Code Sec. 33-552(a)(7). The Court has reviewed Defendant's Motion, and the District's Opposition, and has ordered supplemental briefing of the following issues.
1. Is the assertion of the intention of the District of Columbia to forfeit the money sufficient to defeat this Court's jurisdiction to return the property when jurisdiction is premised on Fed. R. Crim. P. 41? See United States v. Price, 914 F.2d 1507 (D.C. Cir. 1990).
2. Assuming that the assertion of that intention does not divest the Court of jurisdiction, should the Court as a matter of comity nevertheless abstain from exercising jurisdiction lest it destroy the res of the forfeiture action that the District of Columbia intends to prosecute in the Superior Court?
DISCUSSION
I. This Court first raises the question as to whether the District of Columbia's assertion of its intent to forfeit Mr. xxxxx' money is sufficient to preempt this Court's jurisdiction to order the return of the property to its owner, Mr. xxxxx, pursuant to Fed. R. Crim P. 41. Defendant, through undersigned counsel, concludes that it is not sufficient to resist this Court's jurisdiction.
In U.S. v. Price, 914 F.2d 1507 (D.C. Cir. 1990), this Court encountered a similar dilemma with regard to the return of the defendant's property. The defendant, Nigel Price, was arrested and indicted on drug charges. Within a few weeks, he filed a motion pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure for the return of money and jewelry found at the time of his arrest. During the pending criminal proceeding, but before a decision was made on his motion, DEA sent a notice to Price indicating its intent to seek forfeiture of the property. The DEA alleged that the property was the proceeds of the defendant's illegal trafficking in narcotics. This Court held 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.
Price, however, is not dispositive in this case. In the present case, the facts, compared to Price, present opportunity for distinction. Mr. xxxxx was arrested and the charges were dismissed against him. When he was arrested his money was seized and retained by the Office of the U.S. Attorney for evidence. But Mr. xxxxx was never indicted, and although an amount of drugs were found, the government never proved that the money Mr. xxxxx had in his pocket was in any way connected to the drugs.(1) The charges were dismissed completely and Mr. xxxxx was released, but his property remained with the U.S. Attorney. When the U.S. Attorney released the funds without any problem or restriction, the release was barred because the arresting officer, Officer Creamer, has classified the funds as "subject to forfeiture." When Officer Creamer was asked by undersigned counsel's paralegal as to why he had determined the classification without discussion with the U.S. Attorney, he answered that it is a common practice of the Metropolitan Police Department. When undersigned counsel's paralegal further inquired as to whether this is also common when charges are dismissed and no allegation is made that the money is connected to any crime and the U.S. Attorney releases the property, Officer Creamer admitted that he may have erred in this case, and offered to reclassify the property. Unbeknowst to him at the time, and to undersigned counsel, once he classifed the property as "subject to forfeiture," he could not change it, and the only remedy left to Mr. xxxxx was to post a costs bond and wait for the District of Columbia to hold an administrative hearing.
This is the dilemma Mr. xxxxx subsequently found himself in when, upon the U.S. Attorney's good faith effort to release his funds, Mr. xxxxx appeared in front of the Property Clerk and was told "If you don't pay a $250 bond, you lose the money." This was the first assertion made that any agency had the intention to forfeit Mr. xxxxx' money. Up to that moment in time, Mr. xxxxx had not received any notice that his money was "subject to forfeiture" by any agency of the United States or of the District of Columbia. Consequently, he never had the opportunity to challenge the initial classification of the property. Logically, of course, there would not have been any need had the property been released upon the authorization of the U.S. Attorney. Further, he wasn't even able to provide a bond to challenge the seizure in a hearing because he did not have the money; noone ever informed him that he could waive the bond because of indigency.
Mr. xxxxx, through undersigned counsel, contends that his case does not raise a Price issue. Rather, the fact that the District of Columbia retained Mr. xxxxx' money without advising him of any reason, and the failure of the District of Columbia to return his money upon authorization of the U.S. Attorney, raises issues of procedural defects in violation of Mr. William's right to due process.
Therefore, Mr. xxxxx contends that the issue is not whether the District of Columbia assertion to forfeit the money sufficient to preempt the district court's jurisdiction to return the property, but whether the District of Columbia expeditiously notified Mr. xxxxx that his property was even subject to forfeiture, and the U.S. Attorney's release was a nullity in the issue.
Mr. xxxxx's case, then, finds support within the framework of United States v. Wilson, 540 F.2d 1100, 1103-1104 (D.C. Cir. 1976) which still requires that if property is subject to forfeiture, appropriate proceedings should be started expeditiously. Id. At 1104.
The stronger theory that supports Mr. xxxxx' contention that this Court retains jurisdiction over this matter may be found in Onwubiko v. United States, 969 F.2d 1392 (2nd Cir. 1992), where the court recognized that an exception to the general rule that an administrative forfeiture removes the res from the district court and marks an end to its in rem jurisdiction if the property is taken accidentally, fraudulently, or improperly. Id at 1398. The court in that case held that if an administrative forfeiture is procedurally deficient, the court has jurisdiction to correct the deficiency. Id. Further, the fact that no criminal proceeding was pending with regard to Mr. xxxxx, does not, under the principle of Onwubiko, bar Mr. xxxxx from raising a claim under Fed. R. Crim. P. 41(e). See Onwubiko v. United States, 969 F.2d 13921, 1397 (2d Cir. 1992) ("Where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint.")
Several circuits have held that where a procedural defect is raised, the district court retains jurisdiction, and they are instructive here with regard to question of whether the district court should retain jurisdiction in our case at hand.
In Muhammed v. Drug Enforcement Agency, Asset Forfeiture Unit, 92 F.3d 648 (8th Cir. 1996); United States v. Woodall, 12 F.3d 791 (8th Cir. 1993); In United States v. Giraldo, 45 F.3d. 509 (1st Cir. 1995), the court here held that district courts have jurisdiction to entertain collateral due process attacks on administrative forfeitures, Id. At 511, citing United States v. Woodall, 12 F.3d 791, 793 (8th Cir. 1993)("the federal courts have universally upheld jurisdiction to review whether an administrative forfeiture satisfied statutory and due process requirements.") Again, circuits have held that that such challenges may be pursued in a civil action under 28 U.S.C. Sec. 1331. See United States v. Mosquera, 845 F. 2d 1122, 1126 (1st Cir. 1988)(per curiam); Marshall Leasing, Inc., v. United States, 893 F.2d 2096,1102y-03(9th Cir. 1990)(district court had jurisdiction over due process attack on forfeiture under Sec. 1331); Willis v. United States, 787 F.2d 1089, 1093(7th Cir. 1986)(general federal question subject matter jurisdiction exists over constitutional challenge to forfeiture), cited in Sarit v. United States Drug Enforcement Administration, 987 F.2d 10, 17 (1st Cir.)(citations omitted), cert. denied, 510 U.S. 888, 114 S.Ct. 241 (1993).
It is clear from the facts that the retention of Mr. xxxxx money is grounded on
procedural default. The money was seized and retained without any allegation that it was
connected to any crime. Therefore, it is defendant's conclusion that the assertion of the
District of Columbia's intention to forfeit Mr. xxxxx' funds is not sufficient to defeat
this Court's jurisdiction to return the property pursuant to Fed. R. Crim. P. 41, because
it did not comply with due process.
II. Assuming then, that this Court retains jurisdiction, it then asks whether it should, as a matter of comity, nevertheless abstain from exercising jurisdiction lest it destroy the res of the forfeiture action that the District of Columbia intends to prosecute in the Superior Court.
A forfeiture action is in rem. The general rule is that, in an in rem action, removal of the res [item of property] ends the jurisdiction of the court. U..S. v. Ten Thousand Dollars in U.S. Currency, 860 F.2d 1511, 1513 (9th Cir. 1988).
Although this Court, out of deference, may grant the District of Columbia the privilege of proceeding with its administrative forfeiture proceeding, it is not obligated to do so. Brown v. Babbitt Ford, Inc., 571 P.2d 689, 695. It may be appropriate to permit the District of Columbia to continue with its forfeiture proceeding without challenge, courts have held that a district court retains ancillary jurisdiction to decide a defendant's post-trial motion for the return of seized property. United States v. Giovanelli, 998 F.2d 116 (2nd Cir. 1993). this Court is also obligated to retain ancillary equitable jurisdictioin because of the defective nature of the forfeiture proceeding perpetuated by the District of Columbia. There was no attempt on the part of the prosecutor's office, nor of the District of Columbia Property Clerk to advise Mr. xxxxx that his property was even still available.
The defendant does not ask the the court overlook the fact that the District of Columbia plays a significant role in the seizure of property belonging to individuals arrested and/or indicted and/or convicted in this territory and, as a result, is entitled to enforce its laws for specific purposes. The defendant here only asks that the Court retain its jurisdiction based upon the equitable jurisdiction of all the district courts.
The District of Columbia is aware that an order to return the property to Mr. xxxxx would make it impossible for the District to pursue a civil forfeiture action against the $289 owned by Mr. xxxxx. Under the District of Columbia Code, the inference that money found in close proximity to drugs or drug paraphernailia is connected with drug trafficking has provided the District of Columbia with unbridled discretion to forfeit money from individuals arrested simply based on the fact of physical proximity alone.
"This is a cautionary tale, illustrating the mischief to which our eagerness to employ forfeiture as a weapon in the war on drugs can lead." Muhammed v. Drug Enforcement Agency, Asset Forfeiture Unit, 92 F.3d. 648, 650 (8th Cir. 1996). Judge Beam raised an interesting caveat as this Court wends its way through this case with an entertaining twist: who actually has the authority to return Mr. xxxxx' money. There is no question that the district courts, in a variety of circumstances, retain jurisdiction to order the return of a defendant's property, whether the request is at the preindictment stage, or at the finality of an administrative forfeiture hearing.
WHEREFORE, for all the foregoing reasons, and for any other reasons this Court may deem just and proper, and which may appear in supplemental pleadings, which Mr. xxxxx explicitly reserves the right to file, Clarence xxxxx, through counsel, respectfully requests that his Motion For Return Of Property be granted.
Respectfully submitted,
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
Barry Boss
Assistant Federal Public Defender On Behalf of Clarence xxxxx
625 Indiana Avenue, N.W. Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF SERVICE
This is to certify that, on this 29 day of May 1998, a copy of the foregoing Defendant's Supplemental Brief In Support of Motion for Return of Property and has been served upon Mr. Andrew J. Marcus, Assistant Corporation Counsel, Civil Enforcement, 441 Fourth St., N.W., Washington, DC 20001, and Mr. Robert E.L. Eaton, Jr., Assistant United States Attorney, 555 Fourth Steet, N.W., Washington, DC 20001.
Barry Boss
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Cr. Case No. 9x-088-01(JMF)
:
CLARENCE xxxxx :
________________________________:
O R D E R
This matter having come before the Court on Mr. xxxxx's Motion For Return of Property and Incorporated Memorandum of Points and Authorities In Support Thereof, and good cause having been shown, it is this day of , 1998 HEREBY ORDERED:
1) That the motion is granted;
2) That the Metropolitan Police Department, or any other agency holding Mr. xxxxx's
$289 taken from him at the time of his February 10, 1998, arrest, return that money to him
forthwith.
______________________
JOHN M. FACCIOLA
United States Magistrate Judge
Copies To:
Clarence xxxxx
xxxxxxxxxxxxxxx
Apt. xxx
Landover, MD 20706
L. Barry Boss
Assistant Federal Defender
Office of the Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
Robert E.L. Eaton, Jr.
Assistant United States Attorney
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001
Terry Ryan
General Counsel
Metropolitan Police Department
300 Indiana Avenue, N.W., Room 4125
Washington, D.C. 20001
Andrew J. Marcus
Assistant Corporation Counsel
Civil Enforcement
4441 Fourth Street, N.W.
Washington, D.C. 20001
1. Although D.C. Statute Sec. 33-522(Aa)(7)(B) allows the forfeiture of money based on its physical proximity to drugs, the problem with this presumption is that there are many cases in which money found in proximity to drugs does not equal drug money. See United States v. Wright, 610 F.2d 930, 940-42 (D.C. Cir. 1979)($2100 seized from appellants who lived in or frequented "shooting gallery").