United States of America v. Johnson

Filing 2

OPINION and ORDER DENYING 1 INITIATING MOTION return of property (cell phone) - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.

No. 20-mc-51123
Honorable Nancy G. Edmunds

EVAN ALEXANDER JOHNSON,
Defendant-Petitioner.
________________________________________/
ORDER DENYING WITHOUT PREJUDICE DEFENDANT’S
MOTION FOR RETURN OF PROPERTY [1] AND CLOSING CASE
On August 24, 2015, a jury found Defendant Evan Alexander Johnson guilty of
RICO conspiracy in violation of 18 U.S.C. § 1962(d) (Count 1) and possession of a
firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count
6). (Case no. 14-20119, dkt. 367.) On April 12, 2016, the Court sentenced Defendant
and entered judgment. (Id. at dkt. 450.) The Sixth Circuit affirmed on direct appeal
and issued its mandate on March 26, 2018. 1 (Id. at dkts. 534, 535.) On September 8,
2020, Defendant filed a pro se motion for the return of his property pursuant to Federal
Rule of Criminal Procedure 41(g). (Dkt. 1.) Defendant seeks the return of a Samsung
Galaxy cell phone that was seized during the execution of a search warrant
. The Clerk’s office opened the above-captioned miscellaneous case
and docketed Defendant’s motion within this case.

1

Defendant later filed a motion for post-conviction relief under 28 U.S.C. §
2255, which remains pending before the Court.

Under Federal Rule of Criminal Procedure 41(g), “[a] person aggrieved by an
unlawful search and seizure of property or by the deprivation of property may move for
the property’s return.” However, this rule only applies if a criminal case is pending.
After a criminal conviction, a motion under Rule 41(g) is treated as a civil action in
equity. See Stiger v. United States, 100 F. App’x 370, 371-72 (6th Cir. 2004) (citing
United States v. Dusenbery, 201 F.3d 763, 768 (6th Cir. 2000); United States v.
Duncan, 918 F.2d 647, 654 (6th Cir. 1990)). Here, criminal proceedings are no longer
pending and Defendant did not file a civil action. Thus, the Court will deny
Defendant’s motion without prejudice to the filing of an appropriate civil action. See
United States v. Savage, 99 F. App’x 583, 584 (6th Cir. 2004) (finding the district court
did not err when it denied a Rule 41(g) motion filed after judgment was entered and
instructed the movant to file a separate civil action); see also In re Khalid Bin Al-Saud,
No. 12-mc-50076, 2012 U.S. Dist. LEXIS 173058, at *2-3 (E.D. Mich. Dec. 6, 2012).
In light of the foregoing, Defendant’s motion for the return of property is
DENIED WITHOUT PREJUDICE, and this miscellaneous case is CLOSED.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge

Dated: October 1, 2020
I hereby certify that a copy of the foregoing document was served upon
counsel of record on October 1, 2020, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager