United States v. Thomas ( 2003 )


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  •                                                                                                                            Opinions of the United
    2003 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-12-2003
    USA v. Thomas
    Precedential or Non-Precedential: Precedential
    Docket 02-2288
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    Recommended Citation
    "USA v. Thomas" (2003). 2003 Decisions. Paper 779.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2003/779
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    PRECEDENTIAL
    Filed February 12, 2003
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 02-2288
    UNITED STATES OF AMERICA
    v.
    LUTHER THOMAS,
    Appellant
    ON APPEAL FROM THE DISTRICT COURT
    OF THE VIRGIN ISLANDS
    District Court Judge: Honorable Thomas K. Moore
    (D.C. No. 00-cr-00272)
    Argued: November 13, 2002
    Before: SCIRICA, ALITO, and RENDELL, Circuit   Judges
    (Opinion Filed: February 12, 2003)
    DOUGLAS J. BEEVERS (Argued)
    Assistant Federal Public Defender
    PO Box 1327
    St. Thomas, USVI 00804-1327
    Counsel for Appellant
    JOYCELYN HEWLETT (Argued)
    Assistant U.S. Attorney
    5500 Veterans Drive, Suite 260
    Federal Building & US Courthouse
    St. Thomas, USVI 00802-6424
    Counsel for Appellee
    OPINION OF THE COURT
    ALITO, Circuit Judge:
    Appellant Luther Thomas contests the administrative
    forfeiture of $1,049 in cash. After unsuccessfully moving for
    a return of property pursuant to Federal Rule of Criminal
    Procedure 41(e), Thomas argued that the government’s
    failure initially to assert jurisdiction over the res rendered
    the forfeiture invalid. The District Court found no
    jurisdictional deficiencies, and we affirm.
    I.
    On May 25, 2000, the Drug Enforcement Administration
    obtained from the District Court a warrant to search
    Thomas’s home. Officers seized $1,049 in cash pursuant to
    that warrant and arrested Thomas for possessing a small
    amount of cocaine base (crack) with intent to distribute. On
    June 1, a DEA task-force agent and Virgin Islands police
    officer converted the currency into a cashier’s check and
    delivered the instrument to the United States Marshals’
    office. The DEA initiated administrative forfeiture
    proceedings on the money while Thomas awaited trial on
    the drug charges.
    The DEA mailed a notice of seizure to Thomas at three
    different addresses and published notice in the Virgin
    Islands Daily News and the Wall Street Journal. Two of the
    mailed notices were returned to sender, and the DEA
    delivered another notice to Thomas granting him an
    additional 20 days to contest the forfeiture judicially by
    filing a claim and posting bond, as required by 19 U.S.C.
    S 1609(a). Thomas neglected to do so but moved the District
    Court for the property’s return pursuant to Rule 41(e) of
    the Federal Rules of Criminal Procedure. The Magistrate
    Judge denied that motion, and the DEA declared the money
    forfeited on December 7, 2000.
    Thomas then attempted to seek the return of the money
    administratively by petitioning the DEA for remission of
    forfeiture. See 28 C.F.R. S 9.5 et seq. In his petition,
    2
    Thomas alleged that the $1,049 represented legitimate
    income from the sale of assorted knickknacks. While the
    petition was pending, the jury found Thomas not guilty of
    all of the criminal charges against him. On June 4, 2001,
    an attorney from the DEA’s asset-forfeiture division
    informed Thomas that he had "failed to provide sufficient
    documentation showing a legitimate origin for the forfeited
    currency." The DEA’s letter stated that a claimant alleging
    forfeited money to be legitimate business proceeds must
    provide "credible, verifiable documentation evidencing the
    transaction, such as bills of sale."
    Thomas moved for reconsideration of his motions in both
    the administrative and judicial fora. Before the District
    Court, Thomas emphasized a different basis for his claim,
    arguing that the DEA never properly asserted in rem
    jurisdiction over the seized property, thereby undermining
    the forfeiture. For this argument, Thomas relied principally
    on Scarabin v. DEA, 
    966 F.2d 989
    (5th Cir. 1992). The
    District Court ruled, citing United States v. McGlory, 
    202 F.3d 664
    , 670 (3d Cir. 2000), that it had no jurisdiction to
    adjudicate a Rule 41(e) motion for the return of property
    "once the government has initiated administrative forfeiture
    proceedings and the property is no longer the subject of an
    ongoing criminal proceeding." However, acknowledging
    McGlory’s limited exception for a situation in which a Rule
    41(e) movant alleges that the forfeiture proceedings failed to
    satisfy statutory and due-process requirements, see 
    id., the District
    Court reached Thomas’s Scarabin argument. It
    concluded that because the $1,049 "was at all times in the
    hands of the federal government," Scarabin was inapposite,
    and it therefore denied Thomas’s motion. This appeal
    followed.
    II.
    In Scarabin, the Fifth Circuit considered a challenge to
    the administrative forfeiture of $12,360 in cash. Scarabin
    operated a fuel dock and marine supply business at a
    marina in Plaquemines Parish, Louisiana. See Scarabin v.
    DEA, 
    919 F.2d 337
    , 338 (5th Cir. 1990) (hereinafter
    Scarabin I).1 Acting pursuant to a warrant issued by a
    _________________________________________________________________
    1. For clarity’s sake we refer to the final Scarabin decision at 
    966 F.2d 989
    (5th Cir. 1992), on which Thomas relies in this case, simply as
    Scarabin.
    3
    Louisiana state court, personnel of the Plaquemines
    Sheriff ’s Department and the Drug Enforcement
    Administration (DEA) raided the marina and found two
    marijuana cigarette butts on the premises but not in the
    vicinity of Scarabin. 
    Id. In addition,
    the Sheriff seized
    $12,360 from Scarabin. 
    Id. Scarabin was
    originally charged
    with criminal offenses, but these charges were dismissed.
    
    Id. The seized
    funds, however, were forfeited in a DEA
    administrative proceeding. 
    Id. Scarabin pursued
    remission
    of forfeiture via administrative channels but was rebuffed
    due to a technicality. 
    Id. In an
    opinion issued in 1990, the
    Fifth Circuit acknowledged that it lacked jurisdiction to
    review the denial of remission but remanded the case to the
    DEA with the following suggestion: "[This] is the perfect
    case for big government to be big hearted and big enough
    to return ill-gotten gains to the rightful owner rather than
    unjustly enrich itself on the basis of a technical‘gotcha.’ "
    Scarabin 
    I, 919 F.2d at 339
    .
    By the time the case returned to the Fifth Circuit in
    1992, additional facts had emerged concerning the
    treatment of the seized cash. Unbeknownst to the Court
    during consideration of Scarabin I:
    [A] mere three days after [its] search of the Parish
    marina and seizure of Scarabin’s funds, the Sheriff ’s
    Office bought a cashier’s check using Scarabin’s
    $12,360. [It] did so without the knowledge, much less
    the authority, of the state court. The cashier’s check
    was then handed over to the DEA for civil forfeiture
    under federal law. . . . [T]he DEA proceeded to forfeit
    administratively the $12,360 from the cashier’s check
    received from the Sheriff ’s Office, purporting to forfeit
    the funds actually seized from Scarabin. . . . [T]he DEA
    gave the Sheriff ’s Office $11,124 (or 90% of $12,360)
    under a federal statute that allows the DEA to return
    forfeited property to state or local law enforcement
    agencies that have participated directly in the seizure
    or forfeiture of that property.
    
    Scarabin, 966 F.2d at 991
    .
    The Fifth Circuit concluded that "[t]he administrative
    forfeiture of which the DEA informed Scarabin [was] a non-
    4
    entity." 
    Id. at 995.
    The Fifth Circuit stated that it was
    "astonished by the DEA’s belated revelation that it never
    possessed or controlled Scarabin’s $12,360 in cash, the res
    at issue in this case," and the Fifth Circuit noted that a
    federal agency undertaking an administrative forfeiture
    "must have physical control over the property to be forfeit."
    
    Id. at 993.
    The panel then reasoned that "[a]s the DEA by
    its own admission never had control over Scarabin’s
    $12,360, it could not lawfully have found the property
    forfeit under the rules of in rem forfeiture." 
    Id. Moreover, the
    panel held that, even if the DEA had possessed the
    actual res, the DEA would still have lacked in rem
    jurisdiction because "Scarabin’s $12,360 was never out of
    the legal control of the state court and thus was never in
    the possession of the federal government." Id . at 995. In
    reaching this conclusion, the Fifth Circuit relied on a
    Louisiana statute that provided as follows:
    When property is seized pursuant to a search warrant,
    it shall be retained under the direction of the judge. If
    seized property is not to be used as evidence or is no
    longer needed as evidence, it shall be disposed of
    according to law, under the direction of the judge.
    LA. C. CR. P. art. 167. The Court reasoned that, under this
    statute, "the state court’s control terminates when, but only
    when, the seized property is disposed of according to law."
    
    Scarabin, 966 F.2d at 993
    . It held, accordingly, that "[a]
    federal agency cannot obtain jurisdiction over the res --
    and thus cannot find the res administratively forfeit --
    when a state court obtains jurisdiction first and never
    relinquishes that jurisdiction." 
    Id. (citing, e.g.,
    Penn Gen’l
    Casualty Co. v. Pennsylvania, 
    294 U.S. 189
    (1935)).
    III.
    The Fifth Circuit’s opinion in Scarabin may be read as
    holding that the DEA lacked in rem jurisdiction over the
    seized cash for two separate reasons: first, because the
    state court retained jurisdiction under state law and,
    second, because the DEA never actually possessed the cash
    but instead merely obtained a cashier’s check from the
    local sheriff. Thomas appears to rely on both propositions.
    5
    He argues, first, that the District Court, not the DEA, had
    possession of the seized cash in this case, since the cash
    was seized pursuant to a warrant issued by the District
    Court and, second, that possession of the res was lost
    when it was converted into a cashier’s check. We address
    each argument in turn.
    A.
    Although Thomas contends that the District Court, not
    the DEA, possessed the res at issue here, he cites no legal
    authority that supports this conclusion. In Scarabin, as
    noted, the warrant was issued by a Louisiana state court,
    and a Louisiana statute provided that the seized property
    was to remain under the direction of the state court that
    issued the warrant. We disagree with Thomas’s argument
    that Federal Rule of Criminal Procedure 41 operates
    analogously. The Rule gives a claimant some rights but
    does not provide that the warrant-issuing court, as opposed
    to the executive branch agency making the seizure, retains
    the res. Compare FED. R. CRIM. P. 41(d), (e) with LA. C. CR.
    P. art. 167. In the absence of a statutory provision like the
    one invoked in Scarabin, we decline to hold that, for
    purposes of in rem jurisdiction, property seized under a
    federal warrant rests within the exclusive possession of the
    warrant-issuing court rather than the executive-branch
    agency that executes the warrant and actually seizes the
    property. See United States v. Certain Real Property, 
    986 F.2d 990
    , 994-95 (6th Cir. 1993); United States v. $12,390,
    
    956 F.2d 801
    , 805-06 (8th Cir. 1992); United States v. One
    1986 Chevrolet Van, 
    927 F.2d 39
    , 44-45 (1st Cir. 1991).
    Scarabin is also distinguishable from the present case on
    the ground that it involved a seizure by a state officer under
    a state warrant. The District Court considered this
    distinction dispositive when it ruled that because a federal
    search warrant authorized the seizure of Thomas’s $1,049,
    the DEA, as another arm of the federal government, could
    properly assert jurisdiction over the res. Although we do
    not rely exclusively on this ground, we agree with the
    District Court that Scarabin should not be extended to
    cases where property seized by a federal officer under a
    6
    federal warrant is forfeited in a federal administrative
    proceeding.
    B.
    We also reject Thomas’s argument that the DEA
    relinquished possession of the res when it converted the
    cash to a cashier’s check. In making this argument,
    Thomas relies on the rule stated in The Brig Ann , 13 U.S.
    (9 Cranch.) 289, 290 (1815), and reaffirmed in Republic
    Nat’l Bank of Miami v. United States, 
    506 U.S. 80
    (1992),
    that judicial cognizance of a forfeiture in rem is defeated
    "[i]f a seizure be completely and explicitly abandoned"
    before forfeiture proceedings are instituted. Id . at 86-87
    (quoting The Brig 
    Ann, 13 U.S. at 290
    ). Under this rule,
    asserting jurisdiction over a res requires actual physical
    control over the res, and an abandonment of physical
    control undermines in rem jurisdiction. "The Brig Ann
    stands for nothing more than this." 
    Id. at 87.
    In order for
    this rule to apply to the present case, the act of converting
    cash to a check must constitute a "complete[ ] and explicit[ ]
    abandonment" of the res. The Brig 
    Ann, 13 U.S. at 290
    . To
    the extent that Scarabin supports that result, however, it is
    in tension with approaches to the forfeiture of cash
    endorsed by other Circuits.
    It behooves authorities to preserve seized money in the
    form in which they seized it when they intend to use it as
    physical evidence in a trial. Typical situations are when
    cash traded for drugs contains trace residue of the
    narcotics involved or when the serial numbers on the bills
    implicate the accused. However, when no legal significance
    attaches to the bills themselves, some courts favor a
    departure from literal application of in rem jurisdiction. In
    Madewell v. Downs, 
    68 F.3d 1030
    , 1042 n.14 (8th Cir.
    1995), the Eighth Circuit refused to follow Scarabin,
    holding that "[c]urrency, cashier’s checks, and bank
    deposits are simply surrogates for each other, and in
    modern society are certainly regarded as ‘fungible,’ when
    the question is ownership of the funds each represents."
    Similarly, the Ninth Circuit rejected the argument that
    when "currency was exchanged for a cashier’s check, the
    currency, which is the res, ‘disappeared into the banking
    7
    system and is no longer identifiable.’ " United States v.
    $46,588 in U.S. Currency and $20.00 in Canadian
    Currency, 
    103 F.3d 902
    , 905 (9th Cir. 1996). Citing
    Madewell, it held that "the cashier’s check was an
    appropriate, fungible surrogate for the seized currency." 
    Id. This approach
    accords comfortably with the
    jurisprudence of civil forfeiture. Historically, forfeiture
    proceeded from the legal fiction that property used in the
    commission of a crime itself offends the law. See, e.g., The
    Palmyra, 25 U.S. (12 Wheat.) 1, 14 (1827). The forfeited res,
    as a legal entity, is identical with the physical article when
    the property is, for example, a sea vessel, an automobile, or
    a firearm. Currency, however, differs substantially from
    such objects. Paper currency, in the form of the Federal
    Reserve Note, is defined as an "obligation[ ] of the United
    States" that may be "redeemed in lawful money on
    demand." 12 U.S.C. S 411 (2002). These bills are not
    "money" per se but promissory notes supported by the
    monetary reserves of the United States. When an individual
    engages in a criminal transaction with paper currency,
    although the individual certainly uses the notes to
    accomplish the criminal end, the currency’s monetary value
    funds the transaction and is also an appropriate target of
    forfeiture. This result also follows from the fact that an
    individual who uses legal documents representing
    ownership of land to raise funds for a criminal purpose
    renders the land itself subject to forfeiture. See United
    States v. Rd 1, Box 1, Thompsontown, 
    952 F.2d 53
    (3d Cir.
    1991). It would be absurd, in that case, to suppose that
    forfeiture could attach only to the document and not to the
    legal interests represented by that document. We therefore
    hold that the DEA did not abandon the res when it
    converted the currency to a cashier’s check.
    IV.
    In sum, we hold that the DEA properly exercised in rem
    jurisdiction over the $1,049 seized from Thomas. As the
    District Court correctly recognized in citing McGlory, no
    other issue that would normally go to the merits of a Rule
    8
    41(e) motion may be considered or adjudicated at this time.
    We therefore affirm the judgment of the District Court.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    9