United States of America v. Varatha-Rajan

Filing 6

ORDER denying 1 Motion for Return of Seized Property. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 17-50472

THIRUNAVUKKARASU VARATHA-RAJAN,
Defendant.
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ORDER DENYING MOTION FOR RETURN OF SEIZED PROPERTY
Petitioner Thirunavukkarasu Varatha-Rajan was charged with one count of wire
fraud in violation of 18 U.S.C. § 1343 by information before United States Magistrate
Judge Steven R. Whalen on June 19, 2014. Petitioner was released on bond, but was
required to surrender his Sri Lankan passport to pretrial services, which he did. The
court sentenced Petitioner to 24 months imprisonment on December 1, 2014. Now
before the court is a pro se motion by Petitioner under Federal Rule of Criminal
Procedure 41(g) asking the court to order the return of his passport. (Dkt. # 1.)
According to its response brief, “[t]he government does not oppose Petitioner’s
request . . . but is unable to comply with his request because the location of Petitioner’s
Sri Lankan passport is unknown.” (Dkt. # 3, Pg. ID 10.) According to a memorandum
submitted by Supervising Pretrial Services Officer Maureen A. Shock submitted at the
court’s request, a copy of which is attached to this order, pretrial services’ records
indicate that the pretrial services officer on duty at the time mailed Petitioner’s passport
to Immigrations and Custom Enforcement on February 3, 2014. According to the

government’s response brief, ICE “has no record of the passport and is not able to
locate it.” (Id.) Plaintiff’s passport is lost.
Ordinarily, that would be the end of the matter—the court cannot order return of
property that is not in the government’s possession. Recognizing this in his reply brief,
Petitioner asks the court to “allow him to convert his motion into a civil action for money
damages against the individuals who allegedly took his property,” citing Bivens v. Six
Unknown Agents, 403 U.S. 388 (1971). (Dkt. # 4, Pg. ID 15.) As the court understands
Petitioner’s brief, he intends to claim Fourth and Fifth Amendment violations by the
individual pretrial services officer and the government. (See id. at Pg. ID 15-18.)
The Sixth Circuit has expressly barred the award of compensatory sanctions
under Rule 41(g), U.S. v. Droganes, 728 F.3d 580, 589 (6th. Cir. 2013). In Droganes,
the Sixth Circuit expressly noted that “at least nine circuits have held that sovereign
immunity bars an award of money damages against the government on a Rule 41(g)
motion” where property seized by federal agents has been lost or destroyed. Id.
(quoting Ordonez v. United States, 680 F.3d 1135, 1138 & n.2 (collecting cases))
(internal quotation marks omitted). However, so far as the court’s research shows, the
Sixth Circuit has not addressed allowing Rule 42(g) petitions to be amended or
construed to assert civil claims.
In U.S. v. Hall, the Eighth Circuit held that “when a district court conducting a
[Rule 41(g)] proceeding learns that the government no longer possesses property that is
the subject of the motion to return, the court should grant the movant (particularly a
movant proceeding pro se, such as Hall) an opportunity to assert an alternative claim for
money damages.” United States v. Hall, 269 F.3d 940, 943 (8th Cir. 2001) Other circuits

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have held that, when the property at issue has been lost or destroyed, Rule 41(g)
motions may be amended into civil complaints to assert claims under Bivens; the
Federal Tort Claims Act, 28 U.S.C. § 1346; or the Tucker Act, 28 U.S.C. § 1346(a)(2).
See, e.g., Pena v. U.S., 157 F.3d 984, 987 (5th Cir. 1998 (affirming denial of Rule 41(g)
[then 41(e)] motion but doing so without prejudice to allow the pro se petitioner to
amend his pleadings and assert a Bivens claim); U.S. v. Norwood, 602 F.3d 830, 837
(7th Cir. 2010) (allowing conversion of motion for restitution into civil claim after Rule
41(g) motion was denied because property was lost). This is particularly true for pro se
petitions, because “affirming the denial [of a Rule 41(g) motion] without leave to amend
would have the same effect as a rule 12(b)(6) motion would have the same effect as a
12(b)(6) dismissal of a pro se complaint,” which are generally disfavored. Pena, 157
F.3d at 897; accord United States v. Albinson, 356 F.3d 278, 284 n.9 (3d Cir. 2004) (“[A]
Rule 41(g) motion should be liberally construed to allow the assertion of alternative
claims.”) (quoting Pena).
Accordingly, the court will deny Petitioner’s Rule 41(g) motion, but will do so with
leave to file a civil complaint in this court. Any such filing must be made within 3 weeks
of the date this order is entered. As Petitioner is currently in ICE custody undergoing
removal proceedings, any pro se complaint will be subject to the review imposed by 28
U.S.C. § 1915a.
IT IS ORDERED that Petitioner’s motion for return of property (Dkt. # 1) is
DENIED with leave to file a civil complaint as described above.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 31, 2017

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 31, 2017, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\17-50472.VARATHA-RAJAN.return.property.TLH.docx

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