Hill v. UNITED STATES OF AMERICA, No. 3:2011cv00480 - Document 22 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/12/12. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division ANTOINE HILL, Plaintiff, v. Criminal No. 3:llcv480 UNITED STATES OF AMERICA, Defendant. MEMORANDUM OPINION Antoine this Hill, "MOTION FOR Property") a federal prisoner proceeding pro se, RETURN OF {Docket No. 2) SEIZED PROPERTY" pursuant This United to ("Motion to Return Federal Procedure 41(g). States has No. 14.) Hill filed a Reply (Docket No. filed Rule of responded.1 15) Motion for Summary Judgment (Docket No. 18). Criminal (Docket and an unsupported The matter is ripe for judgment. I. PROCEDURAL HISTORY Richmond City Police targeted Hill during an investigation for drug trafficking. 2007, Richmond City (Mot. Police Ret. Prop. executed a 12. )2 search On August 10, warrant at the 1 The Clerk docketed the response of the United States as a motion for summary judgment. Because Hill's Motion to Return Property and attachments consistent numbering, the Court employs the numbers lack assigned system. to this document from the Court's CM/ECF docketing residence of Hill, 515 West Richmond, Virginia, and seized, paraphernalia, United a States jewelry. In semiautomatic currency, Franklin Street, inter pistol, documents Apt. alia, heroin, ammunition, and #316, papers, drug $6867.00 phones, in and (Mot. Ret. Prop. 1-2, 9, 15-18.) Circuit the Court of the City of Court") , Hill waived service of a copy of Notice of Seizure, and "waive [d] Richmond the Information and any and all interest in said, $ 6867.00 in United States Currency[] . . . and agree[d] to the entry of the final Order of Forfeiture .... parte." Commonwealth v. Stipulation and Agreement United States Currency, filed Aug. 10, 2007) et. al., ("Circuit 2, No. (alterations to the Court ex 07F4391/BWS to original) . (Va. The $6867.00 Cir. Ct. Circuit Court entered a Final Order of Forfeiture for $6867.00 in United States with currency, the finding illegal property, in used the manufacture, controlled substances, the Hill sale, or Hill furnished, exchange for a property or in connection distribution of or intended to furnish controlled substance in violation of Section § 18.2-248 or 18.2-248.1 of the Virginia Code. Final Order of Forfeiture 2-3, United States Currency, Nov. 27, 2007). The et. al., No. Circuit forfeited to the Commonwealth. Id. Commonwealth v. 07F4391/BWS Court at 3. ordered $6867.00 (Va. Cir. Ct. the property Based the search Hill indicted on on federal Indictment 3:07cr407 the 1-2 of his drug (Docket No. residence, and 3), firearm United as subject to United charges. States (E.D. Va. filed Oct. 16, 2007). following property the v. States Sealed Hill, No. The Indictment listed forfeiture upon conviction of the crimes charged in the Indictment: Hill's $6900.00 in United States currency, a Kel-Tec 9mm semi-automatic pistol, and 9mm ammunition. Id. Following a jury trial, Hill of possession violation furtherance U.S.C. of of 21 a § 924(c), convicted felon, with U.S.C. drug § this Court entered a conviction of intent 841, to distribute possession trafficking crime, in of heroin, a in firearm in violation of 18 and possession of a firearm/ammunition by a in violation of 18 U.S.C. § 922(g)(1). Judgment 1 (Docket No. 36), United States v. Hill, No. 3:07cr407 (E.D. Va. Oct. Procedure 32.2, 7, 2008). Pursuant 2008). Rule of Civil Motion for Forfeiture of Property 1 (Docket No. 31), United States v. 6, Federal the Government moved for criminal forfeiture of the firearm and ammunition.3 Oct. to The Court Hill, No. 3:07cr407 ordered criminal (E.D. Va. forfeiture of the 3 In its Response, the United States notes that the $6900.00 listed in the indictment was the same $6867.00 seized by the Richmond Police. (Resp. Mot. Ret. Prop. 3, n.l.) Because Hill forfeited this currency to the Commonwealth pursuant to the Final Notice of Forfeiture, the United States moved for criminal forfeiture of only the firearm and ammunition. firearm and ammunition. Order of Forfeiture (Docket No. 34), United States v. Hill, No. 3:07cr407 (E.D. Va. Oct. 7, 2008). On October Property, States seeking Government formally Hill return (2) documents (Mot. must 2010, the currency; (4) jewelry. never 26, Ret. return Prop. the instituted of: filed (1) the and Motion 1-2.) (3) He [sic] Return in United phones; argues because foreiture to $6,867.00 papers; property a his that "the (Docket No. 15) Hill's Motion for at 1-2.) Return of proceeding(s) For the reasons Property will the government conformity with established United States Law . . . ." Br. and in (Reply set forth below, be dismissed with respect to the currency and the jewelry.4 II. RELIEF PURSUANT TO FED. R. CRIM. P. 41(G) Federal Rule of Criminal Procedure 41(g) provides: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for be filed seized. factual the property's return. The motion must in the district where the property The court must receive evidence on issue necessary to decide grants the motion, the motion. was any If it 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. Because the United States never possessed the currency and jewelry, the Court lacks subject matter jurisdiction over the property, and the appropriate disposition is dismissal. United States v. Downs, 22 F. App'x 961, 962 (10th Cir. 2001). 4 See Fed. R. Crim. P. 41(g). The Court properly denies a motion for return of property if the defendant lacks entitlement to "lawful possession of the seized property, the property is contraband or subject to forfeiture or the government's need for the property as evidence 713, 719 F.2d 609, continues.'" (8th Cir. 612 United 2002) States v. Vanhorn, (quoting United States (9th Cir. 1993) ).5 296 F.3d v. Mills, Additionally, 991 appropriate circumstances exist for a Rule 41(g) motion only if the United States 338 possesses F.3d 990, F.3d 722, 723 the property. 995 (9th Cir. (7th Cir. defendant may use Rule return of property See United States 2003); 1997). v. Marshall, United States v. Solis, 108 In "limited circumstances," a 41(g) "as a vehicle to petition for the seized by state authorities." Clymore v. United States, 164 F.3d 569, 571 (10th Cir. 1999), superseded by statute, Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, § 2, 114 Stat. 202, 208, as recognized in Kadonsky v. United States, 3 F. App'x 898, 904 n.6 (10th Cir. 2001).6 These 5 The cases cited herein predating 2002 address motions brought pursuant to Federal Rule of Criminal Procedure 41(e). The Advisory Committee reorganized Rule 41 in 2002, amended Rule 41(e), and recodified it as Rule 41(g). The Advisory Committee Notes described the changes as "stylistic only." See Fed. R. Crim. P. 41, Advisory Committee Notes, 2002 Amendments. 6 Clymore remains good authority for the above proposition set forth in this Memorandum Opinion. However, Congress significantly amended the civil forfeiture statute discussed in Clymore. See Kadonsky, 3 F. App'x at 904 n.6. circumstances include "actual federal possession of the property forfeited by the state," or constructive federal possession of the property: evidence (1) in the government where the government federal prosecution, directed state uses or officials (2) to the property as where the seize the federal property. Clymore, 164 F.3d at 571; see United States v. Copeman, 458 F.3d 1070, 1072 Moreover, States Cir. 2006); at Solis, 108 F.3d 722-23. a state's decision to defer prosecution to the United by property (10th itself, fails seized during to the confer state constructive possession Copeman, investigation. of 458 F.3d at 1072. A. Return Of The $6867.00 Here, the United States entitlement to possession establishes of the that $6867.00. Hill The lacks lawful United States argues that it never possessed the currency,7 and in any event, Hill forfeited the currency through state proceedings because he used the Moreover, currency the Final in connection Order of with the drug offenses. Forfeiture and Stipulation and Agreement entered in the Circuit Court of the City of Richmond 7 The United States submits the Declaration of Anthony Spotswood, a Special Agent with the Richmond office of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") (Resp. Mot. Ret. Prop. Attach. 1.) Spotswood states that he checked the ATF's evidence inventory system and determined that ATF never possessed the property Hill seeks to have returned. Id. demonstrate that Hill forfeited the $6867.00 to the Commonwealth of Virginia in a state proceeding. Virginia judicially entitlement to Rule relief. 41(g) this seized States v. Fitzen, Hill the property, See $6867.00, and that Hill he cannot 164 Clymore, 80 F.3d 387, contends Because the Commonwealth of F.3d 389 (9th Cir. the United lacks avail at lawful himself 571-72; of United 1996). States constructively possessed the $6,867.00 of forfeited currency.8 However, Hill ignores the fact that he lacks lawful entitlement to property that the state forfeited, foreclosing Rule 41(g) relief for the currency. for Return Hill's Motion of Property regarding the return of the $6867.00 will be dismissed. B. Return Of The Papers And Documents, Phones, And Jewelry Hill also seeks return of papers and documents, phones, and jewelry seized by the state pursuant to a search warrant. argues entitlement government never to formally against this property. concedes that argues the return of this instituted Hill property because forfeiture (Mot. Ret. Prop. 5.) proceedings The United States it never sought forfeiture of this property, that the state seized the the property pursuant to a but state Hill directs the Court to a trial transcript excerpt in which the United States asks Hill whether he forfeited money found in his apartment to state detectives. Hill responds: "I never Thus, forfeited he contends nothing." the (Reply Government in his federal prosecution. Id. 7 Brief Attach. C 217-18.) used the $6867.00 as evidence search warrant, involvement and in the none of Hill's pleadings suggest (Resp. Mot. Prop. seizure. Ret. federal 4.) The United States submits the Declaration of Special Agent Spotswood of the ATF to demonstrate that the United States never possessed this property. nor the (Resp. Mot. Ret. Prop. Attach. record shows that the United constructively possessed the jewelry. 1.) Neither Hill States actually or Hill's Rule 41(g) motion will be denied regarding the return of the jewelry. A cursory review of the criminal trial docket, however, reveals the United States entered both phones and documents into evidence at trial. United 2008) . States v. The Exhibit and Witness List 1 (Docket No. 26), Hill, United No. States 3:07cr407 submits (E.D. the Va. filed July 2, Declaration of Detective Todd Bevington of the City of Richmond Police Department ("RPD") to demonstrate phones and that documents. the RPD currently (Resp. Opp'n possesses Mot. Summ. the J. cellular Attach 1.) The United States argues that "[t]he use of some property as evidence at trial in no way diminishes" the conclusion that "the [RPD] and not ATF had custody of the property seized from Hill." (Resp. Opp'n Mot. Summ. J. 6.) The United States, however, fails to address the issue of constructive possession of these items in its response. See Copeman, 458 F.3d at 1072; Clymore, 164 F.3d at 571; Solis, 108 F.3d at 722-23; see, e.g. , United States v. Watson, Okla. No. 04-CR-182-TCK, July 28, 2011) 2011 WL (finding items 3241357, at *l-2 (N.D. seized by state officials, which remained in state custody were constructively possessed by United States federal because the prosecution). items Given were this introduced omission, the as evidence Court in declines to resolve the proper disposition of the phones and jewelry at this juncture. III. Based Summary on the Judgment denied in part. foregoing, (Docket be directed 14) United will be States's granted Motion in part for and Hill's Motion to Return Property (Docket No. 1) denied. to the No. will be dismissed in part. will CONCLUSION (Docket submit Hill's Motion for Summary Judgment No. further 18.) briefing The Government addressing will be constructive possession. The Clerk of the Court is directed to send a copy of this Memorandum Opinion to Hill and counsel for the United States. An appropriate Order shall issue. /a/ (IIP Robert E. Payne Senior United States District Judge Richmond, Virginia Date: hjtu^i*, ¢^
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