US v. Kelly

872 F. Supp. 556

UNITED STATES of America v. John W. KELLY.

No. HCR 90-72.

United States District Court, N.D. Indiana, Hammond Division.

August 3, 1994.

COPYRIGHT MATERIAL OMITTED

Michael A. Thill, Ass't U.S. Atty., Dyer, IN, for U.S.

Pamela P. Kosenka, Highland, IN, George A. Sullivan, Jr., counsel appointed by U.S. Ct. of Appeals, Bloomington, IN, for John W. Kelly.

ORDER

MOODY, District Judge.

John Kelly wants his things back. Kelly asks the court to "suppress and order the return of" items seized during a 1988 warrant-authorized raid of Kelly's shop, called "Kelly's Auto Repair," in Gary, Indiana. During the raid, police seized money, guns, cocaine, heroin, and measuring scales. Kelly also alleges that business papers were seized. Based, in part, on these items, Kelly was convicted by a jury before this court of narcotics and firearms violations. The Seventh Circuit recently affirmed that conviction. See United States v. Kelly, 14 F.3d 1169 (7th Cir.1994). Kelly makes his current request in the form of a motion, under FED.R.CRIM.P. 41(e), in his criminal case. The court concludes that it has equitable jurisdiction to proceed in this matter. Kelly's request, to the extent that it asks that the fruits of the 1988 search be suppressed, is DENIED. However, to the extent that Kelly asks for return of his property, the court withholds judgment. The court asks that the parties brief this aspect of Kelly's motion more fully, as described below.

I. Jurisdiction.

Rule 41 creates "a relatively rare procedural animal." Multi-Media Distributing Co., Inc. v. United States, 836 F.Supp. 606, 609 (N.D.Ind.1993). Sub-section (e) of the rule provides, in part:

Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property.

FED.R.CRIM.P. 41(e). In Multi-Media Distributing Co, Inc., the court held that it had equitable jurisdiction to hear a Rule 41(e) motion brought prior to the institution of criminal proceedings concerning the property at issue. 836 F.Supp. at 609. Kelly's motion presents the other extreme: a Rule 41(e) motion brought after the criminal proceedings have been terminated.

The court concludes that it has jurisdiction to hear Kelly's motion because that motion is ancillary to Kelly's criminal case, which was tried before the court. In United States v. Taylor, 975 F.2d 402, 402 (7th Cir. 1992), Wayne Taylor moved for the return of his gun more than a year after he had pleaded guilty to bank robbery. Taylor states that "the criminal prosecution supplies subject-matter jurisdiction extending to ancillary disputes." Id. at 403. It concludes that there was "no jurisdictional shortfall" in hearing Taylor's motion. Id. Taylor thus clearly implies that Rule 41(e) motions are ancillary to the underlying criminal prosecution and that this ancillary quality is jurisdictional, i.e., it is a basis for postconviction jurisdiction over Rule 41(e) motions. This is consistent with the holdings of other circuits faced with the same issue. See Rufu v. United States, 20 F.3d 63, 64 (2d Cir.1994) ("The district court where a defendant is tried has ancillary jurisdiction to decide the defendant's post-trial motion for return of seized property."); United States v. Price, 914 F.2d 1507, 1510-11 (D.C.Cir.1990) (district court has both jurisdiction and duty to ensure return of defendant's property). A hearing of the defendant's asserted property claim in the district court before which a defendant was tried also serves the interests of judicial efficiency. See United States v. Maez, 915 F.2d 1466, 1468 (10th Cir.1990) ("Interests of judicial efficiency permit a criminal trial judge to rule on the postconviction Rule 41(e) motion.") This court has jurisdiction to proceed on Kelly's motion.¹

II. Analysis of motions under Rule 41(e).

Although a postconviction Rule 41(e) motion is ancillary to the preceding criminal case, and although Rule 41 is a rule of criminal procedure, the nature of a postconviction Rule 41(e) motion is civil and equitable, not criminal. See Multi-Media Distributing Co., Inc., 836 F.Supp. at 609 (treating preindictment Rule 41(e) motion "as a civil action invoking the court's equitable powers") and Taylor, 975 F.2d at 403 ("Although some ... opinions suggest that the civil period applies only to motions before trial, the nature of the dispute is the same no matter when the action comes.") The rationale for this conclusion is simple: "Rule 41(e) motions represent a means by which a criminal defendant can determine his or her rights in property, and not a part of the trial and punishment process that is criminal law." Hunt v. U.S. Department of Justice, 2 F.3d 96, 97 (5th Cir.1993).

The civil nature of Rule 41(e) proceedings means that the court applies the civil-law preponderance evidentiary standard rather than the criminal-law beyond-reasonable-doubt standard. See Maez, 915 F.2d at 1468 ("The judge is not bound by the criminal proceeding's standard of proof or its findings.") The application of the preponderance standard is important because "a defendant may be acquitted of the crime under the reasonable doubt standard but found to possess property unlawfully because of the lower preponderance standard of proof." See id.

Equally significant is the equitable nature of Rule 41(e) proceedings. Here, the significance varies with the movant. The text of the rule provides for two classes of movants: (1) persons "aggrieved by an unlawful search and seizure," and, (2) persons "aggrieved by ... deprivation of property." FED.R.CRIM.P. 41(e). Prior to 1989, "Rule 41(e) did not explicitly recognize a right of a property owner to obtain return of lawfully seized property." See Amendments to the Federal Rules of Criminal Procedure, 124 F.R.D. 397, 427 (1989) (Advisory Committee Notes). The 1989 amendments to Rule 41(e) expanded the rule's express reach to "persons whose property has been lawfully seized." Id. These persons may now "seek return of property when aggrieved by the government's continued possession of it." Id.; see also Multi-Media Distributing Co., Inc., 836 F.Supp. at 613 n. 6.

When a postconviction Rule 41(e) movant relies on the unlawful nature of the underlying seizure, the court's equitable discretion is constrained. If the movant shows that the property was, indeed, unlawfully seized, no countervailing governmental law enforcement interest can overcome that fact because any governmental interest in the property would be necessarily tainted. See Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 2532-34, 101 L.Ed.2d 472 (1988) ("`The essence of a provision forbidding the acquisition of evidence in a certain way is not merely that evidence so acquired shall not be used before the Court but that it shall not be used at all.'") (citation omitted). In such cases, the court nonetheless must consider, as discussed below, whether the movant is entitled to lawful possession and the adequacy of any remedy at law.

Where, on the other hand, the movant does not rely on an argument of unlawful seizure, the court has freer reign to balance whatever interests the defendant asserts in his or her property against the interests of the government in retaining the property. See United States v. Duncan, 918 F.2d 647, 654 (6th Cir.1990) (concern on appeal is "whether the district court properly balanced the competing equities in deciding whether return was in order"). In these cases, the defendant must begin with a prima facie case of lawful entitlement. Maez, 915 F.2d at 1468. The defendant is aided in this by the presumption that "a criminal defendant ... has the right to the return of his or her property once it is no longer needed as evidence." See, e.g., United States v. Mills, 991 F.2d 609, 612 (9th Cir.1993); Duncan, 918 F.2d at 654 ("The general rule is that seized property, other than contraband, should be returned to the rightful owner after the criminal proceedings have terminated."); Maez, 915 F.2d at 1468 (seizure of property from someone prima facie evidence of that person's subsequent entitlement to that property).

Once a defendant makes out a prima facie case of lawful entitlement, the burden shifts to the government to prove that its interests outweigh the defendant's interests. Mills, 991 F.2d at 612. The government's interests may take various forms: what is essential is that the interest is "legitimate." See, e.g., id. (interest in fulfillment of restitution order); Duncan, 918 F.2d at 654 (interest in payment of criminal fines); Sovereign News Co. v. United States, 690 F.2d 569, 577 (6th Cir.1982) (interest in ongoing criminal and tax investigation). The government must show by a preponderance of the evidence that whatever interest it asserts overwhelms the defendant's interest.

The government may also respond to a Rule 41(e) motion by rebutting the defendant's claimed right of lawful entitlement. See Mills, 991 F.2d at 612 (government may rebut by showing claim of ownership or possession adverse to defendant); Maez, 915 F.2d at 1468 (government may rebut by proving ownership or that claimant who had possessed did so unlawfully). The government may also, of course, rebut the movant's claim of lawful entitlement by establishing that the property is contraband.

Finally, the government may argue that the defendant is not entitled to relief because he or she has an adequate remedy at law. This is a direct consequence, again, of the equitable nature of proceedings under Rule 41(e). In the return-of-property context, the government's argument in this regard will most often be that the defendant had an opportunity to be heard during a forfeiture proceeding. See, e.g., United States v. Clagett, 3 F.3d 1355, 1356 (9th Cir.1993) (opportunity to...