United States v. Robert Michael Evans

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11010
Non-Argument Calendar
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D.C. Docket No. 5:08-cr-00242-IPJ-HGD-9
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT MICHAEL EVANS,
a.k.a. Hot Dog,
a.k.a. Hot Boy,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
________________________
(April 1, 2014)
Before TJOFLAT, JORDAN and FAY, Circuit Judges.
PER CURIAM:
Robert Michael Evans, a federal prisoner proceeding pro se, appeals the
district court’s denial of his motion for attorney’s fees, costs, and interest related to
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his action to recover $27,000 the government seized for forfeiture prior to his
criminal prosecution. Mr. Evans argues that the district court abused its discretion
by denying his motion under the Civil Asset Forfeiture Reform Act (“CAFRA”),
28 U.S.C. § 2465, because he substantially prevailed against the government in an
action to recover seized property, and the CAFRA requires that fees, costs, and
interest be paid to prevailing parties under such circumstances. After reviewing
the record and the parties’ briefs, we affirm.
I
Authorities searched Mr. Evans’ place of business in 2008 and seized
$27,000 in United States currency and certain checks allegedly belonging to him.
A federal grand jury originally charged Mr. Evans and others with multiple felony
counts relating to a drug distribution scheme, and the indictment included a
forfeiture count for materials and proceeds related to the drug trafficking offenses.
Mr. Evans pled not guilty to the charges and proceeded to trial, where a jury found
him guilty on some counts, but acquitted him on others, and found in his favor on
the criminal forfeiture count.
In addition to the criminal forfeiture count, the government also undertook
administrative forfeiture efforts, with the DEA issuing a declaration of forfeiture.
In July of 2012, following his conviction, Mr. Evans sought return of the $27,000
by moving for return of his property pursuant to Rule 41(g) of the Federal Rules of
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Criminal Procedure. Mr. Evans argued that the government had not followed the
requirements necessary to properly forfeit the money administratively. In
response, the government conceded that a notice of administrative seizure issued
by DEA officials had never been delivered to Mr. Evans at his place of
incarceration via certified mail and, therefore, it was inadequate. Based on this
concession, the district court set aside the DEA’s administrative declaration of
forfeiture, and ordered officials to send Mr. Evans a new notice of seizure letter
within 60 days. Neither Mr. Evans nor the government appealed this ruling, which
was issued in September of 2012.
In November of 2012, Mr. Evans filed a second motion for return of
property. The district court denied this motion as moot, finding it lacked
jurisdiction over the case because an unrelated appeal by Mr. Evans was pending
before this Court. Mr. Evans did not appeal the district court’s denial of his second
motion. Instead, he moved for reconsideration pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure.
He also filed a motion titled “Notice; Claim Complaint/Return of Property,”
in which he once again argued that the government’s seizure notice was untimely,
and that, therefore, the government was required to return the $27,000 to him,
along with interest as provided by 28 U.S.C. § 2465(b)(1). In response, the
government conceded that the money should be returned to Mr. Evans, and it
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informed the district court that the DEA “will or has begun the process of returning
the money at issue to the defendant pursuant to the Debt Collection Improvement
Act of 1996.” D.E. 927 at 1-2. In light of this concession, the district court
entered an order on January 14, 2013, ruling that Mr. Evans’ motions for
reconsideration and for return of property were moot, as the government had
already agreed to return the money and was in the process of doing so. Mr. Evans
then filed a motion seeking attorney’s fees, costs, and interest pursuant to 28
U.S.C. § 2465(b)(1), which the district court denied.
Although the record suggests that the seized funds have since been returned
to Mr. Evans, this appeal follows his unsuccessful attempt to be awarded attorney’s
fees, costs, and interest in connection with his efforts to recover the seized funds
prior to their return. 1
II
We review a district court’s decision to deny attorney’s fees and costs for
abuse of discretion. See Friends of the Everglades v. S. Fla. Water Mgmt. Dist.,
1
Mr. Evans’s pro se notice of appeal designated the denial of a post-judgment motion for
reconsideration, not the underlying order, as the order on appeal, but we construe his notice to
include the latter and therefore exercise jurisdiction over this appeal. See KH Outdoor, LLC v.
City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006) (“In this circuit, it is well settled that an
appeal is not lost if a mistake is made in designating the judgment appealed from where it is clear
that the overriding intent was effectively to appeal.”) (quotation marks, citations, and alterations
omitted). Because Mr. Evans raises no challenges to the denial of the motion for
reconsideration, any issue in that respect is abandoned. See Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008) (“[I]ssues not briefed on appeal by a pro se litigant are deemed
abandoned.”).
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678 F.3d 1199, 1201 (11th Cir. 2012). “Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)
(internal quotation marks omitted).
III
Mr. Evans argues that the district court abused its discretion by denying his
motion for attorney’s fees, costs, and interest under the CAFRA because he
substantially prevailed against the government in his action to recover seized
property. We have previously held in other contexts that pro se litigants are
entitled to an award of attorney fees only to the extent that the “services of an
attorney were utilized and fees incurred.” Barrett v. Bureau of Customs, 651 F.2d
1087, 1089 (5th Cir. Unit A July 27, 1981) (denying attorney’s fees to pro se
litigant under Privacy Act);2 Clarkson v. IRS, 678 F.2d 1368, 1371 (11th Cir. 1982)
(denying fee request in pro se FOIA suits). There is no indication in the record
before us that Mr. Evans paid any attorney for work related to the forfeiture action
or the Rule 41(g) proceedings. Mr. Evans proceeded pro se the entire time he
2
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), this Court adopted as
binding precedent decisions of the Fifth Circuit, including Unit A panel decisions of that circuit,
handed down prior to October 1, 1981. See United States v. Todd, 108 F.3d 1329, 1333 (11th
Cir.1997).
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sought the return of the $27,000.3 Therefore, he is not entitled to an award of
attorney’s fees. See Clarkson, 678 F.2d at 1371.
Costs of litigation, however, can be reasonably incurred even by a pro se
litigant who is not an attorney, assuming he has substantially prevailed. See
Clarkson, 678 F.2d at 1372. The CAFRA provides, in relevant part, as follows:
“[I]n any civil proceeding to forfeit property under any provision of Federal law in
which the claimant substantially prevails, the United States shall be liable for [ ]
reasonable attorney fees and other litigation costs reasonably incurred by the
claimant,” as well as post-judgment interest. 28 U.S.C. § 2465(b)(1)(A)-(B). The
Ninth Circuit has held that that a plaintiff is entitled to interest under § 2465(b)(1)
when the government seeks to forfeit property in a judicial proceeding, but not
when it utilizes administrative proceedings to do so. See Synagogue v. United
States, 482 F.3d 1058, 1061-64 (9th Cir. 2007). Although we have not yet
addressed the question of whether an administrative forfeiture is considered a civil
forfeiture proceeding for purposes of § 2465(b)(1), it is unnecessary to do so here.
Even if we were to answer the question in the affirmative, Mr. Evans would still
3
Mr. Evans alleged that he had an attorney assist him with the forfeiture action, but the
record indicates only that prior to his criminal trial, Mr. Evans retained an attorney, Cecila Pope,
whom he moved to dismiss as his counsel before the trial started. CM/ECF for N.D. Ala., case
no.08-CR-00242, dkt. entry dated June 20, 2008; D.E. 261; D.E.771 at 10-16; D.E. 772 at 5-7.
The district court appointed new counsel, Gregory Reid, to represent Mr. Evans at trial. D.E.
267, 307. In 2010, after this Court affirmed Mr. Evans’ convictions and sentence, see United
States v. Goodlow, et al., 389 Fed. App’x. 961 (11th Cir. 2010) (unpublished), Mr. Reid
withdrew as Mr. Evans’ attorney of record, and Mr. Evans represented himself in all subsequent
proceedings. See D.E. 713; D.E. 785.
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not be entitled to costs and interest, as he did not substantially prevail in the
underlying forfeiture proceedings.
Generally, a prevailing party is one who has been given some relief by the
court, resulting in some change in the legal relationship between the plaintiff and
the defendant. See Buckhannon Bd. & Care Home v. W. Va. Dep't of Health &
Human Res., 532 U.S. 598, 603-05 (2001)). A litigant is not a prevailing party
when his suit only stirs the government to action, rendering the suit moot, because
no relief is obtained on the merits of the claim. See id. at 605.
In this instance, the district court denied Mr. Evans’ claim as moot because
the government voluntarily returned the money at issue. Although Mr. Evans’
many motions seeking return of the seized property may indeed have been the
catalyst that provoked the government to action, the term “prevailing party” does
not include “a party that has failed to secure a judgment on the merits or a court-
ordered consent decree, but has nonetheless achieved the desired result because the
lawsuit brought about a voluntary change in the defendant’s conduct.” Id. at 600.
See also id. at 605 (“A defendant’s voluntary change in conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the
necessary judicial imprimatur on the change. Our precedents thus counsel against
holding that the term ‘prevailing party’ authorizes an award of attorney’s fees
without a corresponding alteration in the legal relationship of the parties.”).
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Accordingly, because no relief resulting in some change in the legal relationship
between the government and Mr. Evans was ordered by the district court, we
conclude that Mr. Evans did not substantially prevail, and is therefore not entitled
to costs and interest under the CAFRA.
V
Based on the foregoing, we affirm the district court’s denial of Mr. Evans’
motion for attorney’s fees, costs, and interest.
AFFIRMED.
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