United States v. Pompei ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-6-2003
USA v. Pompei
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2550
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Pompei" (2003). 2003 Decisions. Paper 221.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/221
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2550
UNITED STATES OF AMERICA
v.
HARRY POMPEI,
Appellant
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Crim. No. 98-cr-196-7)
District Judge: Honorable Charles R. Weiner
Submitted Under Third Circuit LAR 34.1(a)
September 12, 2003
Before: ALITO, BARRY and ALDISERT, Circuit Judges
(Filed: October 6, 2003 )
OPINION
PER CURIAM
Harry Pompei appeals pro se a District Court order denying his motion for the
return of property filed pursuant to Rule 41(e) of the Federal Rules of Criminal
Procedure.1 For the reasons that follow, we will affirm.
In March 1998, federal agents and state police executed a search warrant at 1404
Dyke Branch Road, Dover, Delaware, a home owned by Pompei. The search revealed
that the residence was the site of a clandestine methamphetamine lab. The next month,
Pompei and six others were indicted on various drug charges. The indictment also sought
criminal forfeiture of certain property, including Pompei’s home. In August 1998,
Pompei pleaded guilty to conspiracy to manufacture and distribute more than 1 kilogram
of methamphetamine and possession of P2P with intent to manufacture
methamphetamine. Pursuant to the plea agreement, Pompei also agreed to forfeit his
home, $5000 in a bank account, and $50,000 in United States currency, assets which
Pompei acknowledged constituted proceeds of, or facilitated, drug trafficking activity.
Simultaneous with entry of the criminal judgment and sentencing, the government
sought and was granted a preliminary order of criminal forfeiture as to the money only.2
See 21 U.S.C. § 853. The government did not seek forfeiture of the residence because of
concern about possible chemical contamination of the property. Pompei did not file an
1
In December 2002, Rule 41(e) was re-lettered as Rule 41(g). We will refer to the
version of the rule in existence at the time the District Court issued its order.
2
Although $50,000 was found in Pompei’s home at the time of his arrest, the
government contends that the money was not seized and that the order directing forfeiture
of $50,000 was “intended as a forfeiture money judgment, and not emanating from any
seizure of $50,000 from Pompei’s residence at the time of the search.” Appellee Br. at
16, 20.
2
appeal from the judgment of conviction and sentence, or object to the order of forfeiture.
Two years later, in December 2000, the government filed a motion for an order of
forfeiture of the home as a substitute asset pursuant to 21 U.S.C. § 853(p), asserting that
Pompei “failed to pay the agreed-upon forfeiture of $50,000.00 and the government has
identified no other assets from which to satisfy the defendant’s forfeiture obligation.” 3
The District Court granted the government’s motion, entered the order, and, receiving no
challenge or objection, entered a final order of forfeiture for substitute assets on June 19,
2001, directing that Pompei’s home be forfeited to the United States. According to the
government, the home was sold to a third party by the United States Marshals Service on
November 29, 2001.
On January 2, 2002, Pompei moved pursuant to Rule 41(e) for return of the
property at 1404 Dyke Branch Road, contending that he was not provided with notice
prior to the seizure and forfeiture of the home. The District Court denied the motion,
noting that the forfeiture was explained to Pompei at the plea hearing and that Pompei
was adequately provided with notice of the forfeiture through his attorney. Pompei timely
appealed. See United States v. Bein, 214 F.3d 408, 412 n.3 (3d Cir. 2000).
It is well-settled that the government may seize evidence for use in an investigation
and trial, but it must return the property once the criminal proceedings have concluded,
3
By this time, an environmental site assessment report of the home had been
completed; the report found no significant contamination on the premises.
3
unless it is contraband or subject to forfeiture. See United States v. Chambers, 192 F.3d
374, 376 (3d Cir. 1999). A district court has jurisdiction to entertain a motion for return
of property even after the termination of criminal proceedings against the defendant; such
an action is treated as a civil proceeding for equitable relief. See United States v.
McGlory, 202 F.3d 664, 670 (3d Cir. 2000) (en banc). We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291, and we review the District Court’s decision to exercise its
equitable jurisdiction for abuse of discretion. Chambers, 193 F.3d at 376.
Pompei claims that he did not receive sufficient notice about the forfeiture of his
home. The facts belie his assertion. “An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Mullane v. Central Hanover
Bank & Trust, Co., 339 U.S. 306, 314 (1950). Here, Pompei received notice of the
forfeiture of his home in both the indictment and guilty plea agreement. The indictment
contained a count seeking forfeiture of Pompei’s home. Significantly, Pompei had the
opportunity to challenge the forfeiture but chose to accept a guilty plea agreement
wherein he agreed to forfeit the property. The fact that the government waited until the
property was deemed uncontaminated before seeking its forfeiture does not diminish the
4
notice Pompei initially received.4
Pompei relies on, inter alia, Robinson v. Hanrahan, 409 U.S. 38 (1972) and United
States v. James Daniel Good Real Property, 510 U.S. 43 (1993), for the proposition that
he was denied due process. This reliance is misplaced. Those cases involved civil
forfeiture proceedings where the claimants had no notice or opportunity to challenge the
forfeiture. Here, by contrast, Pompei knew through his indictment that the government
sought to criminally forfeit his home, had an opportunity to defend against the forfeiture,
but chose to plead guilty and agreed to relinquish his interest in the property. Thus,
because he was not deprived of his right to due process, the District Court did not abuse
its discretion in denying Pompei’s Rule 41(e) motion.
4
In fact, when the government sought forfeiture of the home, additional steps were
taken to ensure proper notice: all motions and orders concerning the forfeiture of the
property were sent to Pompei’s criminal attorney by the Clerk of the Court and notice of
the preliminary order of forfeiture was published in the “Delaware State News” three
times in January 2001.
5