Perez-Colon v. Camacho , 206 F. App'x 1 ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1560
MANUEL PÉREZ-COLÓN,
Plaintiff, Appellant,
v.
ALEX CAMACHO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Lynch and Howard,
Circuit Judges.
Manuel Peréz-Colón on brief pro se.
Rosa E. Rodríguez-Vélez, United States Attorney, Nelson Pérez
Sosa, Assistant United States Attorney, and Germán A. Rieckehoff,
Assistant United States Attorney, on brief for appellees.
November 21, 2006
Per Curiam. Appellant Manuel Perez-Colon appeals from
the district court's judgment dismissing his complaint. This
complaint seeks the return of property ($3,000 in cash) which the
United States Marshals had seized from appellant. Forfeiture
proceedings against the cash were never instituted, and, shortly
after the seizure, the money was turned over to the Puerto Rico
Treasury Department. The district court, prior to service of
process, dismissed the complaint, sua sponte, on the ground that
appellant had failed to exhaust his prison remedies as required by
42 U.S.C. § 1997e(a). On appeal, we reversed the dismissal and
remanded for further proceedings, holding that if the money had
been seized at the time of appellant's arrest, as opposed to having
been seized at the time he entered prison, exhaustion would not be
required, and appellant would be permitted to bring a civil action
in equity for the return of the $3,000. Perez-Colon v. Camacho, 73
Fed. Appx. 474, 475-76 (1st Cir. 2003) (per curiam).
On remand -- where it was established that the money, in
fact, had been seized during appellant's arrest -- the government
filed a motion to dismiss the complaint, arguing essentially that
(1) construing the complaint as asserting a tort claim, appellant
had failed to comply with the requirements for filing such a claim
as set out in the Federal Tort Claims Act (FTCA), (2) construing
the complaint as asserting a claim under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
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qualified immunity protected the defendants from a money judgment,
and (3) since the seizure had been legal, appellant's rights under
the Fourth Amendment had not been violated. After appellant filed
a response, the district court entered a judgment dismissing the
complaint, stating that it was relying on the reasons given by the
government in its motion to dismiss. The instant appeal ensued,
and, once again, the judgment of the district court must be vacated
and the matter remanded for further proceedings.
Generally, after a defendant has been convicted, the
defendant "is presumed to have a right to [the] return" of any
property that has been seized from him or her. United States v.
Chambers, 192 F.3d 374, 377 (3d Cir. 1999); United States v. Potes
Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001). In a case where, as
here, the government has not forfeited the property in question, a
motion under Fed. R. Crim. P. 41(g) -- formerly Rule 41(e) -- is
the proper basis for a request for the return of such property.
See, e.g., United States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004)
(holding that, unless the seized property has been forfeited, Rule
41(g) is the proper remedy for seeking the return of such
property); Chambers, 192 F.3d at 376 (holding, in a case where
there had been no forfeiture, that "[a] person aggrieved by the
deprivation of property may file a motion under Rule 41(e) . . . to
request the return of that property") (footnote omitted). When a
Rule 41(g) motion is filed after the criminal proceedings have
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ended, also as here, the motion is treated as a civil proceeding
for equitable relief. See Sims, 376 F.3d at 707-08; Potes Ramirez,
260 F.3d at 1314; Chambers, 192 F.3d 376.
Because appellant has a cause of action under Rule 41(g),
he has no need to base his claim for the return of the $3,000 on
either the FTCA or Bivens. As a result, the questions whether
appellant complied with the requirements of the FTCA and whether
the defendants are entitled to qualified immunity are not relevant
to a resolution of this case. We therefore turn to the terms of
Rule 41(g).
Rule 41(g) provides as follows:
A person aggrieved by an
unlawful search and seizure of
property 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. If
it grants the motion, 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.
(emphasis added). Given the highlighted language, it is plain that
Rule 41(g) applies to legally, as well as to illegally, seized
property. See Government of the Virgin Islands v. Edwards, 903
F.2d 267, 273 (3d Cir. 1990) ("Under [a] 1989 amendment, Rule 41(e)
is no longer limited to property held following an unlawful search
or seizure"); 3A Charles Alan Wright, Nancy J. King & Susan R.
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Klein, Federal Practice and Procedure § 673, at 336 (3d ed. 2004)
(same). Thus, it is no answer to appellant's motion to say that
the seizure of the $3,000 was legal.
A Rule 41(g) motion nonetheless may be denied "if the
defendant is not entitled 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 continues."
Chambers, 192 F.3d at 377 (internal quotation marks and citation
omitted). It is the government's burden, after the termination of
criminal proceedings, to demonstrate that return of the property is
not warranted, and one way that the government may meet this burden
is to show "a cognizable claim of ownership or right to possession
adverse to that of the movant." Id. A case on point is United
States v. Francis, 646 F.2d 251 (6th Cir. 1981).
In Francis, federal agents had seized approximately
$20,000 from the defendant and then, while the defendant's Rule
41(e) motion was pending, transferred the cash to the state of
Michigan under a warrant of levy on the defendant's property for
nonpayment of state taxes. In affirming the denial of defendant's
motion for the return of the money, the court of appeals first
rejected the government's argument that, since it no longer had the
property, the case was moot. The question remained, the court
held, whether the government's transfer had been lawful -- i.e.,
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whether the transfer had been made pursuant to a right to the money
that trumped the defendant's rights. Id. at 262-63.
Turning to this question, the court, by analogy to cases
involving the Internal Revenue Service, determined that the
government, in fact, had a "continuing interest" in the money and
that this interest was sufficient to defeat the defendant's
interest:
The courts have uniformly held that
the [IRS] may lawfully attach
property belonging to a defendant .
. . and that the tax lien will
frustrate a motion for return of the
property. [T]he lien cannot violate
any rights that defendant has in the
money because even if the money were
returned to him, nothing would
prevent the government from
immediately levying on it at the
time of its return. It makes no
difference that in this case it is
a state rather than the IRS which
has asserted an interest in the
seized cash. The State of Michigan
may validly levy on money owned by
defendant that is in the possession
of the government.
Id. at 263 (citations and footnote omitted).
The court of appeals then determined that the lien that
the state had attached to the defendant's money was facially valid
and that it was broad enough to reach the money that the government
had seized. Id. at 263. Given this, and given that the federal
government lacked a greater interest in the cash, the court
concluded that the government had been required to comply with the
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lien by turning the money over to the state. Id. Thus, the court
held, the transfer had been lawful. Id. See also United States v.
Fitzen, 80 F.3d 387, 388-89 (9th Cir. 1996) (affirming the denial
of the appellant's Rule 41(g) motion to the extent that the seized
property (1) was subject to an Idaho state tax levy or (2) had been
forfeited pursuant to Idaho forfeiture law).
The problem here is that the government never explained
the precise nature of the Commonwealth's interest in appellant's
money, and, as a result, there is no way to determine whether the
transfer of that money was lawful. A remand, therefore, is
required so that the court can make a finding on the matter. See
Rule 41(g) ("[t]he court must receive evidence on any factual issue
necessary to decide the motion"). We add that, given the course of
the proceedings up until now, appellant may desire, on remand, to
request the appointment of counsel. See United States v. Giraldo,
45 F.3d 509, 512 (1st Cir. 1995) (per curiam) (where a pro se
prisoner was challenging, in a civil equitable action, an
administrative forfeiture of property that had been seized from
him, we noted that he was free to request an appointment of counsel
in the district court; citing cases permitting such an
appointment).
Finally, we note that, if the district court decides that
appellant is entitled to the return of the $3,000, the government's
argument that sovereign immunity bars relief in this case is
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misplaced. That is, appellant is not asking for money damages
here. Rather, he is seeking equitable relief "notwithstanding the
fact that the property at issue is currency." Polanco v. United
States Drug Enforcement Admin., 158 F.3d 647, 652 (2d Cir. 1998).
That is, "[i]n suing for return of the currency, [appellant] seeks
restitution of 'the very thing' to which he claims an entitlement,
not damages in substitution for a loss." United States v. Minor,
228 F.3d 352, 355 (4th Cir. 2000). Further, "the fact that the
government obviously cannot restore to [appellant] the specific
currency that was seized does not transform the motion into an
action at law." Id.The judgment of the district court is vacated, and the
matter is remanded for further proceedings consistent with this
opinion. No costs are awarded.
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