USA v. Tommy Webster
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6848037-1]  [16-1377]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 14, 2017*
Decided June 15, 2017
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Northern District of Indiana,
South Bend Division.
No. 3:11‐CR‐67 RLM
Robert L. Miller, Jr.
O R D E R
In March 2011 officers with the South Bend Police Department searched
Tommy Webster’s house and seized 50 marijuana plants, several guns, and dozens of
electronics, including laptop computers, car stereos, and digital cameras. Webster was
prosecuted in federal court for drug and gun crimes, and in November 2015, after he
had been convicted, he filed a motion in the criminal case under Federal Rule of
Criminal Procedure 41(g) demanding that the United States return the electronics,
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
which he valued at $80,000. The district court denied the motion after concluding that
the United States does not possess the electronics. We affirm that decision.
In accepting the representation by the United States that it does not possess the
electronics, the district court relied on unsworn statements from two police officers who
conducted the search of Webster’s house. In those statements the officers explain that
they believed the electronics were stolen and confiscated them after Webster denied
ownership or even knowledge about the items. The officers add that, unlike the drugs
and guns introduced at Webster’s trial in federal court, the electronics were never
turned over to federal authorities.
We struggle to discern any coherent argument from Webster’s opening brief,
but—with the benefit of his reply brief—we understand him to fault the district court
for crediting the officers’ unsworn statements, which the government had
mischaracterized as “affidavits.” In fact, the statements are not notarized, and they do
not even comply with the formalities in 28 U.S.C. § 1746 for unsworn declarations
executed under penalty of perjury. Still, we cannot conclude that Webster was harmed
because other documents he attached to his motion (and still more appended to his
opening brief) confirm that the United States never received the electronics from the
South Bend police. The return from the search warrant states that the electronics were
“delivered to the South Bend Police Department to be held pursuant to authority of the
Sheriff of St. Joseph County.” And an affidavit from the manager of the Department’s
evidence room establishes that, except for one generator that the Department still
possesses, all of the electronics eventually were destroyed or auctioned. Indeed,
Webster concedes in his opening brief that all of the property has been “lost, stolen,
destroyed, or sold.” That concession scuttles Webster’s case because the only relief
available under Rule 41(g) is return of any property the United States possesses.
See United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007).
Webster does not argue that the district court should have construed his motion
under Rule 41(g) as a civil complaint for damages. See United States v. Norwood, 602 F.3d
830, 836–37 (7th Cir. 2010) (recognizing that pro se motion under Rule 41(g) may be
liberally construed to allow alternative claim for money damages). And, regardless, that
interpretation of his motion could not have helped Webster because he values the
electronics at $80,000, and only the Court of Federal Claims has subject‐matter
jurisdiction over claims against the United States for monetary relief in excess of
$10,000. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1); United States v. Bormes, 133 S. Ct. 12,
16–17 n.2 (2012); Norwood, 602 F.3d at 833. Moreover, Webster already has tried,
unsuccessfully, to hold various federal and state officials personally responsible for his
lost property. See Webster v. U.S. Attorney, No. 3:15‐cv‐554‐PPS (N.D. Ind. Jan. 15, 2016),
appeal dismissed sub nom. Webster v. Office of the U.S. Attorney, No. 16‐1180 (7th Cir.
July 20, 2016). The district court correctly denied Webster a second opportunity to
relitigate claims that he could have pursued in that earlier proceeding.
A final issue remains: The United States has alerted us that the district court still
may possess Webster’s checkbook and some letters that were seized from his house and
introduced into evidence at trial. Webster’s filings in both the district court and this
court focus on the electronics, and apparently he does not seek return of these personal
items. In any event, we accept the representation by the United States that it will not
object to Webster using the procedures in the district court’s local rules, see N.D. IND.
L.R. 79‐1, to request return of items the court still holds.
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