United States v. Elwood Cooper , 485 F. App'x 411 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15741
Non-Argument Calendar
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D.C. Docket No. 9:97-cr-08125-KLR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELWOOD COOPER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 1, 2012)
Before BARKETT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Elwood Cooper, a pro se federal prisoner, appeals the district court’s denial
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of his motion that sought (1) the return of two vehicles, pursuant to Federal Rule
of Criminal Procedure 41(g); and (2) relief from the judgments entered in his
previous cases challenging the forfeiture of U.S. currency, pursuant to Federal
Rule of Civil Procedure 60(b). After review, we affirm.
I. BACKGROUND
A. 1997 Drug Convictions
In 1997, Cooper paid two people a down payment of $30,000 to assist him
in transporting cocaine. Unbeknownst to Cooper, the two people were
confidential sources working with the Drug Enforcement Agency (“DEA”). The
confidential sources turned the currency over to the government, and Cooper was
ultimately arrested. A jury convicted Cooper of various counts related to the
importation and trafficking of cocaine. Cooper currently is serving a life sentence.
B. 2001 Rule 41(e) motion for Return of Currency in Criminal
Proceedings
In 2001 in his criminal case, Cooper filed a Rule 41(e) motion for the return
of $36,625, which consisted of: (1) the $30,000 down payment made in two
payments of $24,210 and $5,800; (2) an additional $5,115 Cooper paid DEA
sources during the undercover investigation; and (3) another $1,500 seized in
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connection with Cooper’s criminal case.1 The district court summarily denied
Cooper’s Rule 41(e) motion. Cooper did not appeal.
C. 2002 Rule 60(b) Motion in Civil Proceedings
In May 2002, Cooper filed a second, pro se motion to set aside the forfeiture
of the currency and requested relief under Rule 60(b). Cooper argued that the
government had committed fraud and other misconduct in forfeiting the currency.
Cooper’s Rule 60(b) motion was construed as a civil complaint and given a
civil action number. After the parties filed cross-motions for summary judgment,
a magistrate judge filed a report (“R&R”) recommending that the government’s
summary judgment motion be granted, and Cooper’s summary judgment motion
be denied. The R&R concluded that Cooper: (1) lacked standing with respect to
the $1,500 because he never presented evidence of a property interest in the funds;
(2) was not entitled to the return of the $30,000 because the currency was paid as
part of an illegal contract to transport cocaine; and (3) had not presented any
evidence the government still held the $5,115.
Over Cooper’s objection, the district court adopted the R&R and dismissed
with prejudice Cooper’s action to set aside the forfeiture. This Court summarily
1
In 2002, Rule 41 was amended and subsection (e) became subsection (g) with no substantive
changes. See Fed. R. Crim. P. 41, advisory committee note to 2002 amendments.
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affirmed the district court’s ruling. See United States v. Cooper, No. 03-13543
(11th Cir. April 27, 2005) (unpublished).
D. 2011 Motion under Rule 41(g) (as to Vehicles) and Rule 60(b) (as to
Currency)
In 2011 in his criminal case again, Cooper filed the present “Motion for
Return of Additional Property Pursuant to Fed. R. Crim. P. 41(g) or, in the
Alternative Motion to Set Aside Declaration of Forfeiture and Custody Order and
Motion for Leave of the Court to Reopen the Case and an Evidentiary Hearing
Thereon.” Cooper asked the district court to exercise equitable jurisdiction over
his motion and order the return of a 1993 Infiniti and a 1988 BMW.
Cooper’s motion asserted that: (1) he had not been provided notice of
forfeiture of the vehicles, in violation of his due process rights; (2) he had standing
to challenge the vehicles’ forfeiture because he paid for them with his drug
proceeds, but registered the vehicles in someone else’s name; (3) he had a
constructive possessory interest in the vehicles because, although the vehicles
were registered in the names of others, the vehicles did not actually belong to
those individuals; and (4) drug traffickers commonly put title of purchases in the
names of family and friends.
In addition, Cooper asked the district court to reopen the judgment entered
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in his earlier 2002 Rule 60(b) challenge to the currency forfeiture. Cooper
asserted that he had new evidence that the currency forfeiture was fraudulently
conducted. Cooper’s evidence consisted of (1) copies of three cashier checks, in
the amounts of $24,210, $5,899 and $1,500 that Cooper received in 2004, and (2)
DEA documents associated with the cashier checks, including Summary Expense
and Income Data forms. Cooper claimed that these documents showed fraud
because there were different “[c]ase numbers” on the forms and the cashier checks
were purchased at, and then deposited into, different banks.
In response, the government asserted that: (1) the currency forfeiture already
was adjudicated and Cooper’s new evidence did not contradict those
adjudications; and (2) Cooper lacked standing to challenge the vehicles’ forfeiture.
With respect to the vehicles, the government stated that, if required to offer proof,
a DEA agent would testify that, in 1998, the 1993 Infiniti was seized from Charles
Russell (although the registered owners were Heather and Arnett Shakes) and
quick-released to its lienholder, Barnett, and the 1988 BMW was seized from
Glenroy Craig,2 the registered owner, and administratively forfeited.
The district court denied Cooper’s motion and his subsequent motion for
2
Glenroy Craig was the individual who, acting at Defendant Cooper’s direction, paid money
to the DEA’s confidential sources.
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reconsideration. Cooper filed this pro se appeal.
II. DISCUSSION
A. Rule 41(g) Motion for Return of Vehicles
Under Rule 41(g), “[a] person aggrieved by an unlawful search and seizure
of property . . . may move for the property’s return.” Fed. R. Crim P. 41(g). “In
order for an owner of property to invoke Rule 41(g), he must show that he had a
possessory interest in the property seized by the government,” and that he has
“clean hands” with respect to the property. United States v. Howell, 425 F.3d 971,
974 (11th Cir. 2005); see also United States v. Machado, 465 F.3d 1301, 1307
(11th Cir. 2006), abrogated on other grounds by Bowles v. Russell, 551 U.S. 205,
127 S. Ct. 2360 (2007); United States v. Eubanks, 169 F.3d 672, 674 (11th Cir.
1999).
A Rule 41(g) motion is unavailable if the property was seized pursuant to
civil or administrative forfeiture, Eubanks, 169 F.3d at 674, or if the movant
“invokes Rule 41(g) after the close of all criminal proceedings.” Howell, 425 F.3d
at 974. In these circumstances, “the court treats the motion for return of property
as a civil action in equity.” Howell, 425 F.3d at 974; Eubanks, 169 F.3d at 674.
The decision to exercise equitable jurisdiction in these cases is “highly
discretionary and must be exercised with caution and restraint.” Eubanks, 169
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F.3d at 674.
However, in order to contest a forfeiture, the claimant must first show he
has an interest in the property sufficient to give him Article III standing. United
States v. $38,000.00 Dollars in U.S. Currency, 816 F.2d 1538, 1543 (11th Cir.
1987). To have standing, the claimant need not own the property, but rather may
have some lesser property interest, such as a possessory interest. Id. at 1543-44.3
Here, we conclude that Cooper failed to show he had an interest in the two
vehicles sufficient to confer Article III standing to challenge their forfeiture. First,
Cooper has not shown he had an ownership interest in the vehicles. Cooper did
not hold title to either vehicle under Florida law because neither was registered in
his name. See Cochran v. Jones, 707 So. 2d 791, 793-95 (4th D.C.A. 1998)
(concluding individual has ownership interest in a vehicle if he has a certificate of
title pursuant to Fla. Stat. § 319.21)); United States v. Four Million, Two Hundred
Fifty-Five Thousand, 762 F.2d 895, 907 (11th Cir. 1985) (relying on state law to
determine whether claimant had ownership interest).
Further, Cooper did not show a possessory interest in the vehicles. Cooper
3
We review questions of law relating to the Rule 41(g) motion de novo, but review “the
equitable equation of the district court’s decision to deny a Rule 41(g) motion only for abuse of
discretion.” Machado, 465 F.3d at 1307. Article III standing is a threshold jurisdictional issue and
is subject to de novo review. United States v. Weiss, 467 F.3d 1300, 1307-08 (11th Cir. 2006).
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admits he did not have actual possession of the vehicles at the time of their
seizure. Moreover, he did not allege, much less show, facts demonstrating
constructive possession of the vehicles. To have constructive possession, Cooper
had to have dominion or control over the property. See Aqua Log, Inc. v. Georgia,
594 F.3d 1330, 1336-37 (11th Cir. 2010). Cooper did not allege that he had
control of the vehicles or that he directed those who had actual possession of them.
Instead, Cooper alleged only that he paid for the vehicles, which is insufficient to
establish his standing to challenge their forfeiture.4
B. Rule 60(b) Motion With Respect to U.S. Currency
Cooper argues that the district court should have construed his Rule 41(g)
motion as a Rule 60(b) motion for relief from the judgments entered in his
previous challenges to the forfeiture of the U.S. currency and granted the motion
based on his new evidence of fraud during the forfeiture proceedings.
Rule 60(b) permits a district court to “relieve a party or its legal
representative from a final judgment, order, or proceeding for,” among other
things, “(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b); (3) fraud
4
Although Cooper argues that the government failed to satisfy its burden, Cooper had the
burden to show he had Article III standing. See DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299,
1301 (11th Cir. 2008).
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. . . ;” or “(6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). A
motion under Rule 60(b)(2) or (3) must be filed “no more than a year after the
entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P.
60(c)(1).
A motion under Rule 60(b)(6) must be made within a reasonable time. Id.However, Rule 60(b)(6) is only an appropriate basis for granting relief if the
motion does not fall within any of the other categories listed in Rule 60(b)(1)
through (5). United States v. Real Prop. & Residence Located at Route 1, Box
111, Firetower Rd. Semmes, Mobile Cnty., Ala. , 920 F.2d 788, 791 (11th Cir.
1991); see also Gulf Coast Bldg. & Supply Co. v. Int’l Bhd. of Elec. Workers,
Local No. 480, AFL-CIO, 460 F.2d 105, 108 (5th Cir. 1972) (“Where either
Clauses (b) (1), (2), (3), (4), or (5) provide coverage for the movant’s claim, relief
may not be obtained pursuant to Clause (b) (6).”).5
Here, Cooper’s Rule 60(b) motion appears to attack two judgments—the
2002 judgment entered with respect to his initial Rule 40(e) motion and the 2003
judgment entered with respect to his first Rule 60(b) motion that was construed as
a civil complaint. Cooper does not specify which subsection of Rule 60(b) his
5
We review a district court’s denial of a Rule 60(b) motion for abuse of discretion. Frederick
v. Kirby Tankships, Inc., 205 F.3d 1277, 1287 (11th Cir. 2000).
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motion falls under. Construing Cooper’s motion liberally, it appears to seek relief
under either Rule 60(b)(2) or Rule 60(b)(3). However, to the extent Cooper relies
on either of these subsections, his motion is untimely because it was filed in 2011,
long after the one-year period for filing such motions expired. Although a Rule
60(b)(6) motion can be filed “within a reasonable time,” Cooper’s claim of new
evidence of fraud cannot be brought under (b)(6)’s catch-all provision because it
falls under either (b)(2) or (b)(3).6 See Fed. R. Civ. P. 60(c)(1).
For all these reasons, the district court did not abuse its discretion in
denying Cooper’s pro se motion under either Rule 41(g) or Rule 60(b). We also
find no abuse of discretion in the district court’s refusal to hold an evidentiary
hearing.7
AFFIRMED.
6
In any event, even if Cooper’s motion could be brought under Rule 60(b)(6), he has not
shown he filed it within a reasonable time. Cooper’s “new evidence” of fraud consisted of cashier
checks and DEA property inventory forms that he admitted he received in 2004 and 2005, but he did
not file his motion until 2011, and he has given no reason for his delay.
7
Because Cooper’s Rule 60(b) motion fails anyway, we need not decide whether it is barred
by the doctrine of res judicata, as the government suggests.
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