Exum v. United States of America

Filing 7

MEMORANDUM. Signed by Judge Deborah K. Chasanow on 9/4/2015. (c/m 9/4/15 rs) (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
XAVIER STANLEY EXUM, # 067360-007
Petitioner
v
UNITED STATES OF AMERICA
Respondent

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Civil Action No. DKC-15-591
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MEMORANDUM

Pending is Xavier Stanley Exum’s Motion for Return of Property pursuant to Rule 41(g)
of the Federal Rules of Criminal Procedure, requesting the return of $2,245 in U.S. currency.
The government has filed an opposition in response to which Exum has filed a reply. (ECF Nos.
4, 6).
Exum is seeking the return of funds confiscated from him when he was arrested on
January 25, 2013. (ECF No. 3). He avers the money belongs to his girlfriend Tyesha Mickel.
Id. On June 1, 2015, the government filed an opposition, seeking denial of the motion on two
grounds: 1) Exum lacks standing to bring a claim on behalf of Tyesha Mickel and 2) the
property is not in federal custody.
A party requesting the return of property under Rule 41(g) must have standing to seek
relief from the court. See United States v. Matthews, 917 F. Supp. 1090, 1105 (E.D. Va. 1996)
(Rule 41(g) “demands evidence of a sufficient interest in any claimed property before the ‘case
or controversy’ prong of Article III may be satisfied”). In his Reply, Exum appears to claim that
because the money was confiscated from him by federal authorities, he has standing to request its
return, even if the funds actually belong to Ms. Mickel. (ECF No. 6, p. 2). Exum, however, does
not claim ownership interest in the property, and his personal relationship with Tyesha Mickel
does not appear to satisfy the standing requirement. Matthews, 917 F. Supp. at 1104; see also

United States v. Smith, 142 F. App’x 100, 101 (3d Cir. 2005) (affirming dismissal of Rule 41(g)
motion and ruling that petitioner lacked standing to seek return of brother’s property). Instead,
Ms. Mickle may wish to contact Ray D. McKenzie, Assistant United States Attorney, who can
direct her to the appropriate individuals to contact to obtain her property from state law
enforcement officials.
Even if Exum could demonstrate standing to pursue this claim, the government indicates
the property is not in its possession.1 The government cannot return property it does not possess,
and a motion for the return property must be denied if the government does not possess the
property. See Charles Allen Wright, Nancy J. King, & Susan R. Klein, 3A Federal Practice and
Procedure § 673 (3d ed. 2008); see also United States v. Solis, 108 F.3d 722, 723 (7th Cir. 1997)
(holding that where the United States was never in possession of the property, the United States
was not the proper party against which to bring suit), United States v. White, 718 F.2d 260, 262
(8th Cir. 1983) (holding that where the United States did not possess the property requested, a
Rule 41(g) motion was properly denied); Watkins v. United States, No. WDQ-13-3838, 2014 WL
3661219, at *3 (D. Md. July 21, 2014) (denying Rule 41(g) motion for return of property seized
by local police and not included in defendant’s federal forfeiture order). Accordingly, the United
States is not the proper party against which to bring suit.
For these reasons, this case will be dismissed by separate order to follow.

September 4, 2015
Date

__________/s/_____________________
DEBORAH K. CHASANOW
United States District Judge

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Counsel indicates that he has consulted with the case agent and learned that the subject property is
in the custody of state law enforcement officials. (ECF No. 4, p. 3). Counsel, however, does not provide an
affidavit in support.

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