United States v. Carlos Garza , 486 F. App'x 782 ( 2012 )

Case: 11-12394 Date Filed: 08/10/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 11-12394
Non-Argument Calendar
_____________________________
D. C. Docket No. 1:02-cr-00586-TCB-GGB-12
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GARZA,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________
(August 10, 2012)
Before HULL, EDMONDSON, and BLACK, Circuit Judges.
PER CURIAM:
Carlos Garza appeals the district court’s denial of his pro se motion to
Case: 11-12394 Date Filed: 08/10/2012 Page: 2 of 6
recover $25,000 seized by the government in connection with an earlier criminal
prosecution, pursuant to Fed.R.Crim.P. 41(g). No reversible error has been
shown; we affirm.1
In September 2002, the United States Drug Enforcement Administration
(“DEA”) searched a residence, located in Marietta, Georgia (the “Vermillion Lane
property”), where Garza resided with several persons. The DEA found money and
evidence of drug activity. Agents seized a total of $293,661 through an
administrative seizure from the Vermillion Lane property. Garza ultimately was
convicted of conspiracy to possess with intent to distribute cocaine and
methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.
At sentencing, the government requested a money judgment against Garza
for the proceeds of his drug transactions and a preliminary order of forfeiture for
all proceeds from Garza’s crime of conviction and, specifically, a house located in
Austell, Georgia (the “Anderson Mill property”). The district court concluded that
the government had failed to meet its burden to show that the Anderson Mill
property was used to facilitate drug transactions or constituted the proceeds of
such transactions. In 2006, as part of his criminal proceedings, Garza entered into
1
We review de novo a district court’s determination about subject-matter jurisdiction and the
court’s decision on whether to exercise its equitable jurisdiction. Mesa Valderrama v. United
States, 417 F.3d 1189, 1194 (11th Cir. 2005).
2
Case: 11-12394 Date Filed: 08/10/2012 Page: 3 of 6
a stipulation with the government in which he agreed to forfeit his interest in the
items seized from the Anderson Mill property.
In 2010, Garza filed the instant motion and sought the return of $25,000 that
he alleged the DEA seized from a drawer in his bedroom at the Vermillion Lane
property.2 Garza argued that the items taken from the Vermillion Lane property
were not part of the 2006 stipulation he entered into with the government in the
criminal case against him; he contends that the government was improperly
holding these assets. The government maintained that it seized $293,661 in cash
from the Vermillion Lane property as part of an administrative forfeiture and that
nothing evidenced a discrete sum of $25,000 belonging to Garza. Moreover, the
government submitted evidence to show that it had provided notice of the
pertinent seizure via mail and publication in the Wall Street Journal. The district
court determined that the court lacked jurisdiction to review the merits of the
administrative forfeiture decision and also declined to exercise equitable
jurisdiction.
2
Garza also challenged the seizure of five vehicles from the Vermillion Lane property, but the
district court rejected his arguments on the vehicles when it denied his Rule 41(g) motion. We
conclude that Garza abandoned these claims because he fails to argue on appeal that the district
court erred in denying his claims about the vehicles. See N. Am. Med. Corp. v. Axiom
Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008) (stating that “issues not raised on
appeal are abandoned”).
3
Case: 11-12394 Date Filed: 08/10/2012 Page: 4 of 6
Under Rule 41(g), “[a] person aggrieved by an unlawful search and seizure
of property or by the deprivation of property may move for the property’s return.”
Fed.R.Crim.P. 41(g).3 The movant must demonstrate that he has a possessory
interest in the seized property. See United States v. Howell, 425 F.3d 971, 974
(11th Cir. 2005). Rule 41, however, cannot be used to recover property that has
been forfeited to the government in a civil forfeiture proceeding. United States v.
Watkins, 120 F.3d 254, 255-56 (11th Cir. 1997). According to the government,
the funds at issue were administratively forfeited before Garza filed his instant
Rule 41(g) motion for the return of seized property. Id. at 256 (explaining that the
government’s admission that property was administratively forfeited “deprive[s]
the court of authority to grant the Rule 41[g] motion”).
Garza has not expressly argued that his motion should be construed as a
claim under 18 U.S.C. § 983(e). See Mesa Valderrama, 417 F.3d at 1196 (holding
that § 983(e) is the exclusive remedy for claimants challenging administrative
forfeitures). Even if he had, however, he still is unentitled to relief. We have
recognized that a federal court generally lacks jurisdiction to review the merits of
an administrative or nonjudicial forfeiture determination. Id. Instead, such review
3
In 2002, Rule 41(e) was reclassified as Rule 41(g) with no substantive changes.
Fed.R.Crim.P. 41, Advisory Committee Note to the 2002 amendments. Therefore, our earlier
cases interpreting Rule 41(e) also apply to the new Rule 41(g).
4
Case: 11-12394 Date Filed: 08/10/2012 Page: 5 of 6
is limited to determining whether the agency followed appropriate procedural
safeguards. Id. This review might be exercised in two ways. United States v.
Eubanks, 169 F.3d 672, 674 (11th Cir. 1999).
First, district courts might have jurisdiction “when the agency refuses to
consider a request that it exercise its discretion.” Id. Here, Garza challenged the
administrative seizure, but not within the statutory deadline. As a result, the items
from the Vermillion Lane property were forfeited; and the DEA thereafter denied
Garza’s counseled petition for remission or mitigation of the forfeiture.
Second, federal courts may choose to exercise equitable discretion if “the
petitioner’s conduct and the merits of his petition require judicial review to
prevent manifest injustice.” Id. Even assuming that Garza had sought relief under
§ 983(e), he could only obtain equitable relief if he demonstrated that the
government failed to follow proper procedures or that the forfeiture worked a
miscarriage of justice. Whether the government gave proper notice before
forfeiting the $293,661 seized from the Vermillion Lane property is unclear: none
of the mail or publication notices referenced the amount of currency seized from
the residence. But Garza failed to show that he possessed a demonstrable interest
in any set amount of money seized from the Vermillion Lane property. Although
Garza presented trial testimony from DEA agents who discovered the currency, his
5
Case: 11-12394 Date Filed: 08/10/2012 Page: 6 of 6
only basis for stating that he owned the money was his own bare assertion that
$25,000 of the money seized from the Vermillion Lane property belonged to him.
Accordingly, the district court did not err in determining that it lacked
jurisdiction to entertain Garza’s motion for return of seized property.
AFFIRMED.
6