Rudaj v. United States of America

Filing 7

MEMORANDUM OPINION AND ORDER. Accordingly, it is hereby ORDERED that the cash seized at the time of Rudaj's arrest be applied to the money judgment entered against Rudaj in connection with his sentence. IT IS FURTHER ORDERED that the motion for the return of property, filed on August 29, 2013, is denied. (Signed by Judge Denise L. Cote on 12/2/2013) Copies Mailed By Chambers to Alex Rudaj. (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ALEX RUDAJ,
:
Movant,
:
:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
:
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13 Civ. 6149 (DLC)
MEMORANDUM OPINION
AND ORDER

APPEARANCES:
For the Movant:
Alex Rudaj, pro se
Reg. No. 02381-748
Federal Correctional Institution
P.O. Box 2000
Fort Dix, NJ 08640

For the Respondent:
Jennifer G. Rodgers and Katherine Goldstein
Assistant United States Attorneys
Southern District of New York
One Saint Andrew’s Plaza
New York, NY 10007

DENISE COTE, District Judge:
On August 23, 2013, Alex Rudaj (“Rudaj”), proceeding pro
se, submitted a civil action seeking the return of property
seized from him at the time of his arrest in 2004.
Government opposes the motion.

The

For the following reasons, the

motion is denied.

BACKGROUND
Rudaj was arrested on October 26, 2004 at his home.

At the

time of his arrest, guns, ammunition, $38,612 in cash, a tazer,
handcuffs, and holsters were seized.

Rudaj was indicted for

RICO violations, extortion, loan sharking, and other crimes.
The indictment sought forfeiture of Rudaj’s interest in money
and other property subject to criminal forfeiture.

On January

4, 2006, a jury returned a guilty verdict against Rudaj on
several counts, including the RICO charges.
On June 16, 2006, Rudaj was sentenced principally to 27
years’ imprisonment and ordered to forfeit certain property.

A

money judgment in the amount of $5,755,000 was entered against
Rudaj.

The interests covered by the forfeiture included

interests in certain real estate other than his home.
In May 2010, following the exhaustion of Rudaj’s appellate
rights, 1 Rudaj’s attorney and the Government submitted a proposed
final order of forfeiture as to various assets (“Final Order”).

1 On June 11, 2009, the Second Circuit Court of Appeals affirmed
his conviction and sentence. United States v. Ivezaj et al.,
568 F.3d 88 (2d Cir. 2009); United States v. Ivezaj et al., 336
Fed. App’x 6 (2d Cir. 2009). The Supreme Court denied granting
a writ of certiorari on March 8, 2010. Rudaj v. United States,
130 S. Ct. 1750 (2010)(mem.).
2

The Final Order was executed on May 13, 2010.

Pursuant to the

parties’ stipulation, the Government agreed to credit Rudaj the
sum of $262,612.80 for certain money invested in one of the
forfeited properties and to consider that sum a substitute asset
applied towards the payment of the money judgment.

The sum of

$226,365.21, which represented half of the proceeds from the
sale of the defendant’s home, was also applied towards the
payment of the money judgment.

The Final Order gave the

Government clear title to the forfeited property since notice of
the forfeiture action had been duly published and no petitions
had been filed to contest the forfeiture.

The Final Order gave

the Government title to the substitute funds as well.
In his August 23, 2013 motion for return of property
pursuant to Rule 41(g), Fed.R.Civ.P., Rudaj seeks return of all
of the property listed on the inventory of seized items created
by the arresting officers.

In the motion, Rudaj acknowledges

that the firearms and ammunition are contraband, but asks that
all seized assets be returned to his wife.
On October 24, the Government opposed the return of the
seized items on the ground that the Rule 41 motion was untimely
and because Rudaj has not yet satisfied the money judgment
entered against him.

As for the firearms and firearms-related

items, the Government argues as well that they are properly
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retained by the Government as contraband.

Rudaj replied to

these arguments in a submission of November 7.

DISCUSSION
Rudaj’s motion for the return of property is untimely.

A

cause of action under Rule 41(g) accrues “at the end of the
criminal proceeding during which the claimant could have sought
the return of his property by motion, but neither sought such
return nor received his property.”
F.3d, 489, 493 (2d Cir. 2007).

Bertin v. United States, 478

Although Rudaj’s conviction did

not become final until March 8, 2010, the date when his petition
for certiorari was denied by the Supreme Court, he could have
moved for the return of his property when he was sentenced, on
June 16, 2006, notwithstanding the pendency of his appeal.

See,

e.g., Kee v. United States, 01 Civ. 1657 (DLC), 2001 WL 897175
(S.D.N.Y. Aug. 9, 2001).

Accordingly, under the six-year

statute of limitations for motions under Rule 41(g), see Bertin,
478 F.3d at 492, Rudaj was required to file this motion by June
16, 2012.

Because this action was submitted and filed more than

one year after that date, it is untimely.
Even if timely, the motion must be denied.

Most of the

items listed on the inventory of seized property are firearms or
ammunition.

As Rudaj acknowledges, firearms and ammunition in
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his possession are contraband and properly seized by the
Government.

United States v. David, 131 F.3d 55, 59 (2d Cir.

1997)(“It is well settled that upon the termination of criminal
proceedings, seized property, other than contraband, should be
returned to the rightful owner.” (citation omitted)); see also
United States v. Zaleski, 686 F.3d 90, 92 (2d Cir. 2012).
Although Rudaj asks that the firearms and ammunition be returned
to his wife, for sale through a licensed firearms dealer if
necessary, there is no basis to find that these items belonged
to his wife.

Not surprisingly, Rudaj’s wife has not brought a

motion for return of these items, accompanied by a declaration
that these items are her property.
In his reply, Rudaj also refers to the cash that was
seized.

Rudaj correctly points out that the Government has not

indicated whether this money was applied to the money judgment
entered against him.

It will now be ordered to do so.

CONCLUSION
Accordingly, it is hereby
ORDERED that the cash seized at the time of Rudaj’s arrest
be applied to the money judgment entered against Rudaj in
connection with his sentence.
IT IS FURTHER ORDERED that the motion for the return of
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property, filed on August 29, 2013, is denied.

SO ORDERED:

Dated:

New York, New York
December 2, 2013
__________________________________
DENISE COTE
United States District Judge

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