United States v. Julien Garcon ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12715 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 21, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:07-cr-80051-DTKH-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
JULIEN GARCON,
a.k.a. Johnathan Imgramham,
a.k.a. Julian Garcon,
a.k.a. Tedric Sherman,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 21, 2010)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Julien Garcon, a federal prisoner proceeding pro se, appeals the district
court’s order denying his motion for return of property, filed pursuant to
Fed.R.Crim.P. 41(g). On appeal, Garcon contends that the district court erred in
denying his Rule 41(g) motion. Specifically, he argues that the court should have
ordered the government to return $48,865.00 in United States currency, the two
identification documents, and the 40 loose photographs. He also asserts that the
district court did not give him adequate time to object to the magistrate’s report
and recommendation (“R & R”). For the reasons stated below, we affirm.
I.
In 2007, a jury convicted Garcon of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Garcon
to a term of 120 months’ imprisonment. We affirmed Garcon’s conviction and
sentence on direct appeal. United States v. Garcon, 349 Fed.Appx. 377 (11th Cir.
2009). Garcon subsequently filed a 28 U.S.C. § 2255 motion to vacate sentence,
which currently is pending before the district court.
In December 2009, Garcon filed a pro se motion under Fed.R.Crim.P. 41(g)
seeking the return of certain property seized by the government. After the district
court ordered Garcon to clarify the property at issue, Garcon filed an amended
motion explaining that he was seeking the return of: (1) $48,865 in U.S. currency;
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(2) “40 loose pictures;” (3) an auto auction card; (4) a driver’s license; (5) a soil
compressor; (6) a hydraulic jack; (7) a plastic bin; (8) an Audi A6 vehicle; and
(9) handcuffs.
In its response, the government explained that the $48,865 in U.S. currency
was given to the West Palm Beach Police Department for safekeeping, and
ultimately had been forfeited as abandoned property to the City of West Palm
Beach. The government stated that the 40 loose photographs and a box containing
handcuffs already had been returned to Garcon’s designee. The government
explained that the two identification cards mentioned by Garcon, a Miami Auto
Auctions card and a driver’s license, had evidentiary value, and, therefore, needed
to remain in the government’s possession until Garcon’s § 2255 motion was
resolved. Next, the government explained that the soil compressor and hydraulic
jack had been used to press cocaine hydrochloride into bricks. Therefore, the
government argued that those items were contraband and should not be returned to
Garcon. Finally, the government explained that the Audi A6 vehicle was
quick-released to Capital One Auto Finance, which held a lien on the vehicle.
In support of its response, the government submitted an affidavit by Special
Agent James Matthews of the Drug Enforcement Administration, who served as
the case agent in the federal prosecution of Garcon. Agent Matthews explained
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that the $48,865 in U.S. currency was given to the West Palm Beach Police
Department for safekeeping. The police department sent a notification letter to an
address for Shari Morant, the individual who signed the lease for the apartment
from which the money had been recovered but the money went unclaimed and
ultimately was forfeited to the City of Palm Beach as abandoned property. Agent
Matthews stated that agents already had returned the 40 loose pictures and a box
containing handcuffs to Garcon’s designee. Agent Matthews was planning to
make arrangements to return two plastic bins to Garcon’s designee as well.
Agent Matthews stated that the two identification cards, a Miami Auto
Auctions card and driver’s license would have evidentiary value in any retrial of
Garcon. He indicated that he would return the Miami Auto Auction card to
Garcon’s designee after all proceedings concerning Garcon’s conviction were
completed. Agent Matthews explained that the driver’s license appeared to be a
counterfeit document, and, as such, should not be returned to Garcon. Next, Agent
Matthews explained that the soil compressor and hydraulic jack appeared to have
been used to compress cocaine hydrochloride into bricks. He explained that the
surface of the soil compressor had tested positive for cocaine. Accordingly, Agent
Matthews asserted that the soil compressor and hydraulic jack were drug
paraphernalia that should not be returned to Garcon. Finally, Agent Matthews
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explained that the Audi A6 had been quick-released to Capital One Auto Finance,
which held a lien on the vehicle, in accordance with DEA policy.
On March 29, 2010, a magistrate issued an R & R concluding that Garcon’s
motion for return of property should be denied. First, the magistrate noted that
Agent Matthews’s affidavit stated that the government had already returned the 40
loose pictures, plastic bin, and handcuffs to Garcon. The magistrate observed that
Garcon had not challenged that contention, despite having ample time to do so.
Therefore, the magistrate recommended that the motion be denied as moot with
respect to those items. Next, the magistrate noted that the $48,865 had been given
to the West Palm Beach Police Department and had been forfeited to the City of
Palm Beach as abandoned property. The magistrate concluded that the
government did not have the ability to return the currency because the government
had never taken possession of it.
Next, the magistrate concluded that Garcon was not entitled to the return of
the Miami Auto Auctions card or driver’s license because those documents would
be needed as evidence at a retrial in the event that Garcon was able to successfully
overturn his conviction in the § 2255 proceedings. The magistrate also concluded
that Garcon could not recover the soil compressor or hydraulic jack because those
items had been used to package cocaine, and, therefore, were contraband. Finally,
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the magistrate determined that Garcon’s motion should be denied with respect to
the Audi A6 because that vehicle had been quick-released to a lien holder, Capital
One Auto Finance. Accordingly, the magistrate recommended that Garcon’s
motion to return property be denied.
On April 8, 2010, less than 14 days after the R & R was entered, the district
court adopted the magistrate’s report and denied Garcon’s Rule 41(g) motion. On
April 20, 2010, Garcon’s objections to the R & R were filed with the district court.
Garcon certified that he had placed his objections in the institutional mail on April
7, 2010, nine days after the magistrate’s report was entered. In his objections,
Garcon stated that he never received a copy of the government’s response, and,
therefore, did not have an opportunity to contest the government’s assertion that it
already had returned the 40 loose pictures, plastic bin, and the handcuffs. He
asserted that the government had not submitted any evidence showing that the
$48,865 in U.S. currency had been forfeited He also argued that any forfeiture
order was invalid because neither he nor the lease holder, Shari Morant, received
notice of the forfeiture proceedings.
Next, Garcon argued that the soil compressor and hydraulic jack were not
contraband because no cocaine residue had been found on those items. He stated
that the government had violated his Fourth and Fifth Amendment rights by
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turning the Audi A6 over to Capital One Auto Finance without giving him prior
notice. Finally, Garcon asserted that the government did not have a continuing
need for the identification cards because his conviction had been affirmed on
direct appeal.
II.
In considering the district court’s denial of a Fed.R.Crim.P. 41(g) motion to
return property, we review the district court’s legal conclusions de novo and its
factual findings for clear error. United States v. Howell, 425 F.3d 971, 973 (11th
Cir. 2005). Although we liberally construe pro se briefs, issues not raised on
appeal by a pro se litigant are deemed abandoned. Timson v. Samson, 518 F.3d
870, 874 (11th Cir. 2008). We do not consider arguments raised for the first time
in a reply brief. Id.Under Federal Rule of Criminal Procedure 41(g), an individual whose
property has been seized by the government may file a motion for return of the
property. Fed.R.Crim.P. 41(g). A Rule 41(g) motion is treated as a civil action in
equity. Howell, 425 F.3d at 974. The movant must demonstrate that he has a
possessory interest in the seized property and that he has “clean hands” with
respect to that property. Id. The First Circuit has held that “a Rule 41(g) motion is
properly denied if the defendant is not entitled to lawful possession of the seized
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property, the property is contraband or subject to forfeiture, or the government’s
need for the property as evidence continues.” United States v. Pierre, 484 F.3d
75, 87 (1st Cir. 2007) (quotation omitted). If the government wishes to retain the
property, it must have and state a legitimate reason for doing so. United States v.
Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001). The government is not
obligated to return property that it no longer possesses, but it must provide some
evidentiary support for its claim that it no longer has possession of the property.
See id. (holding that the district court erred when it relied on the government’s
representation that the property sought by the defendant had been destroyed
because the government did not submit any evidence of the property’s
destruction).
In this case, Garcon’s opening brief does not challenge the denial of his
motion with respect to the plastic bin, the handcuffs, the soil compressor, or the
hydraulic jack. Therefore, Garcon has abandoned any argument that he is entitled
to the return of those items. Although Garcon did not expressly mention the Audi
A6 in his initial brief, we will liberally construe his arguments regarding forfeiture
as referring to both the vehicle and the currency.
The district court properly denied Garcon’s Rule 41(g) motion with respect
to the $48,865 in United States currency because that money had been turned over
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to the to the City of West Palm Beach Police Department, and ultimately was
forfeited to the City of West Palm Beach. Although Garcon contends that the city
did not provide sufficient notice of the forfeiture proceeding, the real question is
not whether the forfeiture comported with the requirements of due process, but
rather, whether the government was in possession of the currency. Because the
government demonstrated that it no longer had possession of the currency, the
district court correctly found that the government did not have the ability to return
it to Garcon.
Garcon also failed to demonstrate that he was entitled to the return of the
Audi A6. The record reflects that the Audi was quick-released to Capital One
Auto Finance, which held a lien on the vehicle. Garcon failed to show that he had
a possessory interest in the Audi that was superior to that of the lien holder. See
Howell, 425 F.3d at 974 (explaining that the movant must demonstrate that he has
a possessory interest in the seized property).
Next, the government was not obligated to return the Miami Auto Auctions
card or the driver’s license because those items would be needed as evidence in
the event that Garcon’s pending 28 U.S.C. § 2255 motion is successful and he is
able to obtain a new trial. See Pierre, 484 F.3d at 87 (stating that a Rule 41(g)
motion should be denied if the government’s need for the property as evidence
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continues). Finally, Agent Matthews reported that the 40 loose photographs
already had been returned to Garcon’s designee, and Garcon failed to offer any
evidence to refute that contention. Because the property that Garcon sought to
have returned either was not in possession of the government, was still needed as
evidence, or already had been returned to Garcon’s designee, the district court
properly denied Garcon’s Rule 41(g) motion.
III.
A district court may direct a magistrate to prepare an R & R containing
proposed findings of fact and a recommended disposition with respect to a
dispositive motion. 28 U.S.C. § 636(b)(1). The parties have 14 days from the day
on which they receive the R & R to file objections. Id. The district court must
conduct a de novo review of those portions of the R & R to which an objection is
made. Id.In this case, the district court did not afford Garcon a full 14 days to object
to the R & R. Nevertheless, under the particular circumstances of this case, we
conclude that the district court’s procedural error was harmless because all of
Garcon’s objections to the R & R were meritless. Garcon’s objections regarding
the United States currency, the identification cards, the Audi A6, and the 40 loose
photographs fail for the reasons described above. Garcon’s objections concerning
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the plastic bin, the handcuffs, the soil compressor, and the hydraulic jack likewise
lacked merit. Garcon did not present any evidence to contradict the government’s
assertion that the handcuffs and plastic bin had already been returned or would be
returned to his designee. With respect to the hydraulic jack and the soil
compressor, Garcon’s only argument was that the government had not presented
any evidence linking those items to illegal drugs. According to Agent Matthews’
affidavit, however, both items were found in close proximity to cocaine and drug
paraphernalia, and the soil compressor tested positive for the presence of cocaine.
Thus, the district court correctly concluded that the hydraulic jack and the soil
compressor were contraband. Since none of Garcon’s objections to the R & R
were meritorious, we conclude that the district court’s error in failing to consider
those objections was harmless.
Accordingly, after review of the record and the parties’ briefs, we affirm the
denial of Garcon’s Fed.R.Crim.P. 41(g) motion.
AFFIRMED.
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