Green v. Stamford Police Dept et al

Filing 10

ORDER denying plaintiff's motion for the return of property and dismissing the case. The Clerk may close the file. Signed by Judge Robert N. Chatigny on 1/25/17. (Karges, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Frank Green, Sr.,

:

Plaintiff,

:

v.

:

United States,

:

Defendant.

Case No. 3:16-cv-79 (RNC)

:
RULING AND ORDER

Plaintiff Frank Green, Sr., a federal prisoner, has filed a
motion pursuant to Federal Rule of Criminal Procedure 41(g)
seeking return of property seized pursuant to a state search
warrant.

United States v. Green, 3-14-cr-111-RNC-1 (D. Conn.

Dec. 7, 2015).

The motion seeks return of eyeglasses, mail, a

cellphone and cash.
When a Rule 41(g) motion is filed after the criminal
proceeding is completed, it is treated as the initial pleading in
a civil equitable action.
608, 610 (2d Cir. 2008).

See Diaz v. United States, 517 F.3d
Accordingly, the motion has been

docketed as the initial pleading in the present case.

The

Government has filed a memorandum in opposition requesting
dismissal of the action.

Plaintiff has filed a reply, which has

been docketed in the underlying criminal case.
v. Green, No. 3:14-CR-111(RNC)(ECF 77).
the action is dismissed.

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See United States

For reasons that follow,

I.

Background
The record shows the following.

On October 4, 2013,

Stamford police officers executed a search warrant at Mr. Green’s
residence, where they seized an eyeglass case, three knotted
baggies of powder cocaine, a revolver, $121 in cash, a cell
phone, photographs, and mail. Green.

Mr. Green was arrested on

state firearm and narcotics charges.

At the time of his arrest,

he was serving a period of federal supervised release stemming
from his 2011 conviction for conspiracy to possess with intent to
distribute cocaine.
On May 23, 2014, nolles were entered on the state charges
following the return of a federal indictment charging Mr. Green
with unlawful possession of a firearm and possession with intent
to distribute cocaine.

The Stamford Police Department

subsequently transferred the firearm and cocaine to the United
States Bureau of Alcohol, Tobacco, Firearms and Explosives to aid
the federal prosecution.

On or about June 3, 2014, the

Connecticut Superior Court ordered the destruction of the
remaining items except the $121 in cash, which was ordered to be
forfeited.
On March 24, 2015, Mr. Green pleaded guilty to the felon-inpossession charge and admitted to having violated the terms of
his supervised release.

Prior to sentencing, Mr. Green’s counsel

asked the Government to bring his eyeglasses, photographs and

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cell phone to sentencing.

The Government undertook to comply

with the request but was unable to produce any of those items
because none could be found in the custody of ATF.
II.

Discussion
“Federal Rule of Criminal Procedure 41(g) permits a person

aggrieved by the government's unlawful seizure or deprivation of
property to move for specific relief: the property's return.”
Adeleke v. United States, 355 F.3d 144, 149 (2d Cir. 2004).

To

prevail on a Rule 41(g) motion, the movant “must demonstrate that
(1) he is entitled to lawful possession of the seized property;
(2) the property is not contraband; and (3) either the seizure
was illegal or the government's need for the property as evidence
has ended.”

Ferreira v. United States, 354 F. Supp. 2d 406, 409

(S.D.N.Y. 2005).

When property is not available for return to

the rightful owner, money damages may not be awarded because such
an award is barred by sovereign immunity.

See Kahn v. United

States, No. 05-CR-385 (JFK), 2009 WL 2900249, at *1 (S.D.N.Y.
Sept 8, 2009).
Here, copies of records of the Connecticut Superior Court,
Stamford Police Department and ATF support the Government’s
submission that the only items of property received by ATF were
the firearm and narcotics.
3:14CR111(RNC)(ECF 76-1).

See United States v. Green, No.
There is no evidence, documentary or

otherwise, suggesting that any other items were transferred to

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ATF.

Plaintiff argues that the Government was negligent in

failing to take custody of the other items.

Plaintiff’s

arguments are insufficient to raise a triable issue whether the
items he seeks to have returned are in the Government’s
possession.

On the record before the Court, there is simply no

reason to doubt the Government’s submission that ATF never had
the items.
III. Conclusion
Accordingly, plaintiff’s motion for the return of property is
hereby denied and the action is dismissed.

The Clerk may close the

file.

__________/s/ RNC___________
Robert N. Chatigny
United States District Judge

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