United States of America v. Berry

Filing 10

ORDER Denying 6 Motion to Amend Pleadings. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

Misc. Case No. 16-mc-51496
Crim Case No. 05-cr-20048

v
LEE HENRY BERRY, #05032039,

Honorable Thomas L. Ludington

Defendant.
__________________________________________/
ORDER DENYING MOTION TO AMEND PLEADINGS
On April 29, 2005, Berry was arrested by the Bay City Police Agency for violating the
terms of his probation by failing to notify his agent of an address change. During the course of
the arrest, the Bay City Police Department seized property belonging to him, including the
following: (1) a 2001 Cadillac Deville; (2) a 1999 Ford Expedition; (3) a 2002 Chevrolet Monte
Carlo; and (4) $429.00 in United States concurrency. See ECF No. 2. Berry was found guilty in
Michigan state court for violating the terms of his probation and sentenced to 7.5 years in prison
in Case Number 99-1541-FH.
During the course of the arrest, the Bay City Police Department discovered incriminating
evidence including drugs, drug paraphernalia, and firearms that gave rise to charges in this
Court. See United States v. Lee Henry Berry, Case No. 05-20048 (E. D. Mich., Jan. 9, 2006). On
September 10, 2007, Defendant Lee Henry Berry was convicted of possession with intent to
distribute less than 5 grams of cocaine base, 21 U.S.C. § 841(a)(1); possession with intent to
distribute 5 grams or more of cocaine base, 21 U.S.C. § 841(a)(1); possession with intent to
distribute less than 500 grams of cocaine, 21 U.S.C. § 841(a)(1); and felon in possession of one

or more firearms, 18 U.S.C. § 922(g)(1). Id. at ECF No. 73. On December 21, 2007, he was
sentenced to a term of 360 months’ imprisonment on each count, to be served concurrent to each
other, but consecutive to the Michigan Department of Corrections sentence for violating his
probation. Id. at ECF No. 85. The judgment was affirmed on appeal to the Sixth Circuit. Id. at
ECF No. 101. Berry’s subsequent collateral attacks to his conviction and sentence were denied.
Id. at ECF Nos. 112, 147, 158.
I.
On October 17, 2016 Berry filed a motion pursuant to Federal Rule of Criminal
Procedure 41(g) for the return of the three automobiles and $429.00 seized by the Bay City
Police Department. See ECF No. 1. Rule 41(g) permits a person aggrieved by an unlawful
search and seizure or the deprivation of property to move for the property’s return. Such a
motion “must be filed in the district where the property was seized.” Id. On November 14, 2016
the Government filed a response, arguing that this Court does not have jurisdiction over the
subject property. See ECF No. 2. Attached to its response the Government provided the Notice
of Seizure, dated April 30, 2005, prepared by the Bay City Police Department listing the property
at issue. Id. at Ex. A. Based on the certificate of service attached to the notice, Berry was served
with the notice on May 3, 2005. Id. Berry did not provide any evidence that he timely filed a
claim or posted bond.
By an order dated December 13, 2016 Berry’s motion was denied. See ECF No. 4. The
Court reasoned that it did not have jurisdiction over the subject property because Berry had not
demonstrated that the federal government ever had actual or constructive possession of the
property or that the property was seized by the local government at the direction of the federal
government. See United States v. Copeman, 458 F.3d 1070, 1071 (10th Cir. 2006). Due to an

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administrative error the order was not served on Berry until January 6, 2017. In the meantime,
on December 20, 2016 – over a month after the Government filed a response – Berry filed a
reply to the Government’s response. See ECF No. 5. Under Local Rule 7.1(e), Berry’s reply
should have been filed within seven days of his receipt of the Government’s response. See E.D.
Mi. L.R. 7.1(e)(2)(C). Even so, Berry’s late reply does not present any arguments that would
have changed the Court’s previous order.
Then, on December 28, 2016 Berry filed a motion to amend his pleadings to allege that
the Government had possession of the property. See ECF No. 6. Berry does not allege that the
Government had actual possession of the vehicles and currency. Instead, he argues that the
federal government constructively possessed the property because it referred to Berry’s
possession of the property at trial and possessed videos and photographs of the property. This
argument is without merit. Neither possessing videos or photographs of property, nor referencing
of the existence of property has any bearing on whether the federal government actually or
constructive possessed the property itself. Without any allegation that the Government actually
or constructively possessed the property this Court does not have jurisdiction over the property.
Moreover, even assuming arguendo that the federal government had possession of the
property, Berry would not be entitled to any relief because the State of Michigan afforded Berry
an adequate remedy at law to recover the property. 1 See Brown v. United States, 692 F.3d 550
(6th Cir. 2012) (holding that a movant was not entitled to equitable relief under Rule 41(g) where
she had ignored an adequate remedy provided by law); Copeman, 458 F.3d at 1072 (holding that
1

While not raised by the Government, Berry’s claim is also barred by the doctrine of laches. Dismissal of a claim on
the ground of laches requires (1) an unreasonable and unexcused delay in bringing the claim, and (2) material
prejudice as a result of the delay. A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1028 (Fed.
Cir. 1992) (en banc). Based on the Notice of Seizure, Berry had notice that his property had been seized for over a
decade before bringing his 41(g) motion. This delay is unreasonable and inexcusable given the facts of this case. See
Carter v. United States, 160 F. Supp. 2d 805, 815 (E.D. Mich. 2001) (finding a delay of over six years unreasonable,
inexcusable, and prejudicial); Vance v. United States, 965 F. Supp. 944, 947 (E.D. Mich. 1997) (finding a delay of
nearly five years unreasonable, inexcusable, and prejudicial).

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Rule 41(g) is an equitable remedy available only where a movant “can show irreparable harm
and an inadequate remedy at law.”); Clymore v. United States, 164 F.3d 569, 571 (10th Cir.
1999) (holding that when “state avenues of relief [are] open to [the movant], he cannot show an
inadequate remedy at law.”).
Because Berry has not met his burden of showing actual or constructive possession of the
relevant property by the United States, and because Berry had an adequate remedy at law in the
courts of the State of Michigan, his motion to amend his pleadings will be denied. This is a final
order and closes the case.
III.
Accordingly, it is ORDERED that Berry’s motion to amend pleadings, ECF No. 6, is
DENIED.

Dated: May 25, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on May 25, 2017.
s/Kelly Winslow
KELLY WINSLOW, Csae Manager

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