IN RE: THIRTY-EIGHT FIREARMS AND 12,858 ROUNDS OF AMMUNITION
Filing
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ORDER denying 9 Claimant Kelly Corrick's Motion for Immediate Return of Property and Motion for Sanctions. Signed by Magistrate Judge Tim A. Baker on 11/1/2013. (JLM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
IN RE:
THIRTY-EIGHT FIREARMS AND
12,858 ROUNDS OF AMMUNITION SEIZED
FROM THE RESIDENCE LOCATED AT
705 LEON PRALL ROAD, OSTICO, CLARK
COUNTY, INDIANA ON OCTOBER 26, 2012
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Misc. No. 4:13-mc-0002-SEB-TAB
ORDER ON MOTION FOR IMMEDIATE RETURN OF PROPERTY
AND MOTION FOR SANCTIONS
I.
Introduction
Claimant Kelly Corrick seeks the return of firearms and ammunition seized by Indiana
State Police officers and ATF agents and alleges that the federal government has wrongfully
failed to promptly return her property. The government responds that Corrick’s motion for the
return of property and for sanctions should be denied because the Court lacks jurisdiction over
the property. For the reasons set forth below, Corrick’s motion for the immediate return of
property and sanctions [Docket No. 9] is denied.
II.
Facts and Procedural History
On October 26, 2012, the Clark Superior Court issued a search warrant authorizing ISP to
search Corrick’s home “for firearms [and] ammunition … related to the investigation of a serious
violent felon in possession of firearms and/or stolen firearms.” [Docket No. 10-1.] On the same
day, ISP officers and ATF agents executed the warrant and seized 38 firearms and 12,858 rounds
of ammunition. [Docket No. 10 at 1–2.] Clark Superior Court issued the warrant, yet ATF
agents took control of the property and initiated forfeiture proceedings. [Id.] The Clark County
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prosecutor never filed a motion to transfer the property to federal authorities and Clark Superior
Court did not issue such an order. [Id. at 4.]
On November 6, 2012, Corrick received notice that ATF initiated forfeiture proceedings.
[Docket No. 11-1.] On November 28, 2012, Corrick filed a claim of ownership with ATF and
Corrick’s counsel sent ATF a letter asserting that the property was unlawfully transferred from
ISP officers to ATF agents. [Docket No. 11-2.]
On March 1, 2013, this Court granted the government’s motion to extend time to file a
complaint for forfeiture and/or to obtain an indictment alleging forfeiture. [Docket Nos. 1, 4.]
The government indicated it was conducting an ongoing investigation related to the forfeiture
proceedings. [Id.] In responding, Corrick did not raise any jurisdictional issue. [Docket No. 5.]
On June 3, 2013, the government filed an unopposed motion for an extension of time to file its
complaint, resulting in a revised deadline of July 3, 2013. [Docket Nos. 7, 8.] On July 16, 2013,
Corrick filed the pending motion for return of seized firearms and ammunition. [Docket No. 9.]
The government responded that the Court lacked jurisdiction over Corrick’s property and that
her miscellaneous cause was not the appropriate forum for a constitutional claim for relief.
[Docket No. 10 at 5–6.] At a hearing held on September 25, 2013, the government asserted that
it became aware of the jurisdictional issue sometime after its June 3, 2013 motion for an
extension of time.
III.
Discussion
A. Jurisdiction
The government argues that the Court lacks jurisdiction over the seized property because
the property was not legally transferred to ATF pursuant to Indiana Code § 35-33-5-5. [Docket
No. 10 at 2–5.] Corrick argues that the federal government illegally took possession of her
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property and should not be allowed to use the law to shield its unlawful activity. [Docket No.
11.]
Indiana Code § 35-33-5-5(a) provides that “[a]ll items of property seized by any law
enforcement agency as a result of [a] … search warrant … shall be securely held by the law
enforcement agency under the order of the court trying the cause.” Indiana Code § 35-33-5-5(j)
provides that “upon motion of the prosecuting attorney, the court shall order property seized
under 34-24-1 transferred … to the appropriate federal authority.” To legally transfer seized
property, Indiana Code “requires a motion by the prosecuting attorney and an order from the
court to transfer the property.” Martin v. Indiana State Police, 537 F. Supp. 2d 974, 987 (S.D.
Ind. 2008). Here, the prosecutor never filed a motion to transfer the property to federal
authorities and the Clark Superior Court never issued the required transfer order.
The Martin Court analyzed a similar jurisdictional issue. In Martin, officers who were
cross-deputized with both state and federal law enforcement agencies seized over $300,000
pursuant to a state court search warrant. Id. at 978. The seized property was held by U.S.
Customs and forfeiture proceedings were initiated. Id. at 978–9. However, the state court that
issued the search warrant never ordered the property to be transferred. Id. at 987. Consequently,
the court held that “there was no valid transfer of jurisdiction from the state court, so that the
federal forfeiture proceeded without jurisdiction over the res.” Id.
The Martin court explained that Indiana Code “provides that the court trying the cause
retains control over the seized property, not that the agency that physically seized the property
retains control. By issuing the search warrant, the Marion Superior Court retained control over
the seized property unless and until it issued a transfer order.” Id. Here, both state and federal
law enforcement agents executed and seized property pursuant to a state-issued search warrant.
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ATF could not have jurisdiction over the property until the Clark Superior Court entered a
transfer order because the property was seized pursuant to a state-issued search warrant. Without
the state court entering a transfer order, this Court is without jurisdiction over the property.
B. Sanctions
Corrick requests sanctions—including attorney’s fees—for the government’s delay in
promptly returning her property. [Docket No. 9 at 4.] The government argues that the current
miscellaneous cause is not the proper forum to bring a due process claim for relief and that the
government did not permanently deprive Corrick of her property. [Docket No. 10 at 5–6.] 18
U.S.C. §§ 983(3)(A)–(B) require the government to “promptly” return seized property if the
government does not file a complaint for forfeiture and/or obtain an indictment alleging
forfeiture of the property within 90 days of a person’s filing a claim of ownership.
In this case, the government successfully extended the statutory deadline twice, which
resulted in an additional 120 days to file a complaint for forfeiture and/or an indictment. [Docket
Nos. 4, 8.] The government never filed a complaint for forfeiture or an indictment with this
Court. Rather, the government transferred Corrick’s property—sometime after the Court granted
the government’s second requested extension of time—back to state authorities and now
correctly asserts that this Court never had jurisdiction over the property.
Relying on 18 U.S.C. § 983(a)(3)(A), Corrick argues that the government disregarded its
obligation to “promptly” return the seized property. However, this argument fails because the
Court lacks jurisdiction to adjudicate the substantive federal claim. As such, the Court cannot
impose sanctions against the government for failing to return the property.
Nevertheless, Federal Rule of Civil Procedure 11(c) permits the Court to impose
sanctions on its own initiative. When filing a motion with the court, an attorney certifies that “to
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the best of the person’s knowledge,… formed after an inquiry reasonable under the
circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; [and] (2) the claims … are
warranted by existing law.” Fed. R. Civ. P. 11(b)(1)–(2). The primary purpose of Rule 11
sanctions is “to deter abusive litigation practices.” Corley v. Rosewood Care Center, Inc. of
Peoria, 388 F.3d 990, 1013 (7th Cir. 2004). Furthermore, sanctions can only be imposed if the
government acted willfully or in bad faith. Miller v. Vohne Liche Kennels, Inc., No. 1:12-cv00054-TWP-TAB, 2013 WL 1363578, at *3 (S.D. Ind. 2013) (holding that sanctions were
inappropriate because plaintiff’s frivolous suit was not litigated in bad faith).
The government initiated proceedings in this Court and twice filed motions for extensions
of time to file a complaint for forfeiture. Only after two extensions of time were granted did the
government assert that jurisdiction is improper. Moreover, Corrick’s counsel even notified ATF
that Corrick’s property was unlawfully transferred from ISP officers to ATF agents. [Docket No.
11-2.] According to Corrick, such conduct suggests impropriety.
However, the government’s actions—while perhaps sloppy— were not done in bad faith
and do not rise to a level requiring sanctions. The government requested extensions of time
because of its ongoing investigation related to the forfeiture of Corrick’s property. [Docket No.
1 at 4; Docket No. 7 at 4–5.] The government noted that “a short extension of the statutory
deadline prevents the unnecessary expenditure of public resources and funds by making it
unnecessary to file a complaint for forfeiture against the property followed by an indictment
alleging that the property is subject to forfeiture.” [Docket No. 1 at 4.]
There is no evidence that the government did not investigate. Moreover, the government
did not make any false statements in any filings with this Court. Rather, the government learned
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of the improper transfer of property after filing its second motion for an extension of time and
after its discussions with the state prosecutor regarding a potential trial on Corrick’s state
criminal charges. After learning of the illegal transfer, the government returned the property to
state authorities. While the government certainly could have discovered and corrected the
transfer of property sooner, the government’s motions for extensions of time were not filed in
bad faith or contain any false statements. The Court therefore declines to impose sanctions upon
the government.
IV.
Conclusion
For these reasons, Corrick’s motion for immediate return of property and sanctions
[Docket No. 9] is denied.
Dated: 11/01/2013
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Distribution:
Patrick J. Renn
prenn@600westmain.com
William Lance McCoskey
UNITED STATES ATTORNEY’S OFFICE
william.mccoskey@usdoj.gov
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