Bonty v. USA

Filing 68

ORDER SUA SPONTE EXTENDING PETITIONER BONTY's DEADLINE TO RESPOND TO 65 Court's Order Regarding Motion for Return of Property (Doc. 64): For the reasons thoroughly set forth in the attached Order, the Court EXTENDS to October 1, 2014 the deadline by which Petitioner/Movant Bonty may respond to the Court's 8/17/14 Order (specifically addressing the questions of where Bonty's Motion for Return of Property is properly filed and whether that motion is timely). (Action due by 10/1/2014.)Signed by Judge Michael J. Reagan on 9/19/14. (soh )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL D. BONTY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 05-cv-0797-MJR

ORDER SUA SPONTE EXTENDING
PETITIONER’S DEADLINE TO RESPOND TO
COURT’S 8/17/14 MEMORANDUM AND ORDER
REAGAN, District Judge:
In May 2003, a jury convicted Michael Bonty on charges of transporting a minor
in interstate commerce with the intent to engage in criminal sexual activity, attempting
to intimidate a juvenile by leaving a message on her cellular telephone with the intent to
hinder the juvenile from communicating to law enforcement information relating to the
commission of a federal offense, and being a felon in possession of ammunition. United
States v. Bonty & Hall, Case No. 02-cr-30116-MJR.

After denying Bonty and his co-

Defendant’s post-trial motions, the undersigned sentenced Bonty in August 2003.
Judgment was entered August 20, 2003, and Bonty appealed unsuccessfully. See United
States v. Bonty, 383 F.3d 576 (7th Cir. 2004).
Bonty filed a timely petition challenging his sentence under 28 U.S.C. 2255. The
undersigned denied that petition in 2006.

Bonty appealed, again without success.

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Bonty filed additional motions and another appeal. The Seventh Circuit issued another
mandate in April 2008, dismissing Bonty’s November 2007 appeal.
In June 2013, Bonty filed another motion challenging his sentence on ineffective
assistance of counsel grounds. In July 2013, after allowing the parties an opportunity to
weigh in, the undersigned entered an Order finding that this Court lacked subject
matter jurisdiction to entertain a second or successive § 2255 petition.
In August 2014, Bonty filed in this closed § 2255 proceeding a “Petition for
Return of Seized Property” (Doc. 64), asking the Court to order the return of Bonty’s
cellphone, car keys, jewelry and personal papers seized from him in September 2002,
when he was arrested in the underlying (2002) criminal matter. Bonty relies on Federal
Rule of Criminal Procedure 41(g) in seeking the return of his personal belongings.
Rule 41(g) furnishes a mechanism by which criminal defendants can recover
their property which was seized by the Government. United States v. Stevens, 500 F.3d
625, 627-28 (7th Cir. 2008). The Seventh Circuit has explained that the proper office of a
Rule 41(g) motion is -- before forfeiture proceedings have been initiated or criminal
charges have been filed -- to seek the return of property seized without probable cause
or held an unreasonable time, and that Rule 41(g) can be used after criminal proceedings
have concluded “to recover the defendant’s property when the property is no longer
needed….” United States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004), cert. denied, 543 U.S.
1094 (2005), citing Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.), cert. denied, 539 U.S.
910 (2003).

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In the case at bar, the Court entered an Order August 17, 2014 raising two
questions. First, the undersigned questioned whether Bonty had erroneously filed the
motion for return of property in this closed § 2255 proceeding. The 8/17/14 Order
(Doc. 65) cited caselaw suggesting that after a defendant has been convicted (which was
11 years ago for Bonty), a Rule 41(g) motion can be treated as opening a new civil
equitable proceeding. See United States v. Shaaban, 602 F.3d 877, 879 (7th Cir. 2010);
United States v. Howell, 354 F.3d 693, 695 (7th Cir. 2004). Second, the Court questioned
whether Bonty’s motion as timely. Here, the undersigned cited cases indicating that
once the criminal proceedings (or civil forfeiture proceedings have concluded), a sixyear statute of limitations applies. Sims, 376 F.3d at 708-09. See also Shaaban, 602 F.3d
at 879 (Rule 41(g) movant “has six years from the close of his criminal proceedings to
initiate an action for return of his property”).
The Court directed Bonty and the United States to address these questions in a
brief filed by September 17, 2014. Certain that the motion for return of property was
not properly filed in this closed § 2255 case, the Court invited the parties to voice any
objection or alternative to filing the Rule 41(g) motion as a separate civil case.
Bonty’s copy of the 8/17/14 Order (setting the 9/17/14 deadline) was slightly
delayed in reaching him, and had to be re-mailed on August 29, 2014, due to a problem
with an outdated address for him used by the Clerk’s Office.

The Government

responded with to the 8/17/14 Order with a detailed memo on September 17, 2014.
Because of the delay in mailing the Order to Bonty, and because the Government has
suggested an alternative way to handle Bonty’s Rule 41(g) motion (file it in the closed

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criminal case instead of opening a new civil matter), the Court HEREBY EXTENDS to
October 1, 2014 the deadline by which Bonty can file a memo stating his position on the
issues raised in the Court’s 8/17/14 Order (i.e., where to properly file Bonty’s motion
for return of property, and whether the motion is timely).
IT IS SO ORDERED.
DATED September 19, 2014.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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