SALAZAR-MERCADO v. UNITED STATES OF AMERICA

Filing 15

MEMORANDUM OPINIO AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 9/24/2014, RECOMMENDING that the United States' Motion to Dismiss be granted and that this action be dismissed for want of subject matter jurisdiction. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOSE SALAZAR-MERCADO
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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1:13CV335

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Motion to
Return

Property,

Procedure 41(g).

filed

pursuant

(Docket Entry 2.)

to

Federal

Rule

of

Criminal

The United States of America

filed a Motion to Dismiss arguing that it does not have possession
of Plaintiff’s property thereby depriving this Court of subject
matter jurisdiction.

(Docket Entry 12.)

The Clerk of Court

informed Plaintiff of his right to respond and to submit affidavits
or other evidence as to any disputed factual matter (Docket Entry
14), but Plaintiff has not responded (see Docket Entries dated June
6, 2014 to present).1

For the reasons that follow, the undersigned

United States Magistrate Judge recommends granting the instant
Motion to Dismiss.
1

This Court’s Local Rules permit treating an unopposed motion
as conceded. See M.D.N.C. R. 7.3(k) (“If a respondent fails to
file a response within the time required by this rule, the motion
will be considered and decided as an uncontested motion, and
ordinarily will be granted without further notice.”). However, the
United States Court of Appeals for the Fourth Circuit requires
substantive review of even unopposed motions to dismiss. Stevenson
v. City of Seat Pleasant, Md., 743 F.3d 411, 416 n.3 (4th Cir.
2014).

BACKGROUND2
On May 25, 2010, the Moore County Sheriff’s Office arrested
Plaintiff for selling methamphetamine.

United States v. Mercado,

No. 1:10-cr-00300-WO-1, docket entry 15 at 2.3

The Moore County

Sheriff’s Office, through a confidential source, had made several
controlled purchases of methamphetamine from Plaintiff.

Id. at 1.

Plaintiff alleges that upon arrest the Moore County Sheriff’s
Office seized from him:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)

various papers with his name on them;
one wallet;
$2,150.00;
one check for $475.00 and one check for $380.00;
one Mexican driver license;
electoral credentials;
two cellular telephones;
three gold rings;
two gold chains; and
one gold bracelet, initialed “JMS”.

(Docket Entry 2 at Section VI.)

In his previous Motion for Return

of Personal Property, Plaintiff sought the same items for return

2

Plaintiff’s Complaint does not set forth many facts, but he
does note the existence of a criminal action associated with the
seizure of his property, and that he had previously filed a Motion
to Return Property. (Docket Entry 2 at Section IV). Therefore,
this Memorandum Opinion will treat those matters as incorporated by
reference. Cf. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (holding
that pro se filings should be liberally construed). In addition,
in evaluating a 12(b)(1) challenge, the Court need not limit itself
to the allegations in the complaint. See Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999) (citing Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,
768 (4th Cir. 1991)).
3

Plaintiff stipulated to the accuracy of the above-cited
factual basis. See United States v. Mercado, No. 1:10-cr-00300-WO1, docket entry 25 at 19.
2

and noted their seizure occurred “on or about May 25, 2010[,]” and
that the items “were on [his] person when [he] was arrested.”
United States v. Salazar-Mercado, 1:13-cv-00288-WO-LPA, docket
entry 1 at 1.
Following that arrest, the United States charged Plaintiff
with distributing methamphetamine in violation of 21 U.S.C. §§
841(a)(1) & (b)(1)(B) and possessing a firearm in furtherance of a
drug

trafficking

924(c)(1)(A)(i).

offence

in

violation

of

18

U.S.C.

§

See United States v. Salazar-Mercado, No. 1:10-

cr-00300-WO-1, docket entry 11 at 2-3.

Plaintiff pled guilty to

those charges and received a sentence of 120 months imprisonment.
Id. docket entry 20 at 1-2.
In moving to dismiss, the United States provided a more
detailed (but essentially consistent) version of the facts than
Plaintiff.

(See Docket Entries 13-1, 13-2, 13-3.)

Significantly,

the United States emphatically agrees with Plaintiff that the Moore
County

Sheriff’s

Office

(Docket Entry 13 at 2.)
an

affidavit

from

a

arrested

Plaintiff

on

May

25,

2010.

In addition, the United States presented
Records

Examiner

Analyst

for

the

Drug

Enforcement Administration (“DEA”) who reviewed the case files and
forfeiture records for the DEA and found that the DEA never seized
any personal property from Plaintiff.

(Docket Entry 13–1.)

DISCUSSION
Federal Rule of Criminal Procedure 41(g) states: “[a] person

3

aggrieved by an unlawful search and seizure of property or by
deprivation of property may move for the property’s return.”
However, “[f]ederal courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 378
(1994).

The burden of establishing jurisdiction rests upon the

party asserting jurisdiction.

Id.

In order for a Court to have

jurisdiction over a Rule 41(g) proceeding, the United States must
have possessed the seized property. See Robinson v. United States,
No. 3:11CV369, No. 3:04CR342, 2013 WL 682894, at *3 n.8 (E.D. Va.
Feb. 22, 2013) (unpublished) (citing United States v. Downs, 22 F.
App’x 961, 963 (10th Cir. 2001)).
In

limited

circumstances

the

United

States

constructively possessed property held by the state.

may

have

See Clymore

v. United States, 164 F.3d 569, 571 (10th Cir. 1999), superseded in
part by statute, Civil Asset Forfeiture Reform Act of 2000, Pub. L.
No. 106–185, § 2, 114 Stat. 202, 208, as recognized in Kadonsky v.
United

States,

3

F.

App’x

898,

904

n.6

(10th

Cir.

2001).4

Constructive possession arises “(1) where the government uses the
property as evidence in the federal prosecution, or (2) where the
federal government directed state officials to seize the property.”
Robinson, 2013 WL 682894 at *2 (citing Clymore).

4

Clymore still remains good law for this proposition despite
the significant changes to the forfeiture statute discussed in
Clymore.
See United States v. Copeman, 458 F.3d 1070, 1071-72
(10th Cir. 2006) (citing Clymore and engaging in a constructive
possession analysis).
4

Motions to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) may take one of two forms.

See Kerns v. United

States, 585 F.3d 187, 192 (4th Cir. 2009).

First, a party may make

a

allegations

facial

challenge

to

the

plaintiff’s

concerning

subject matter jurisdiction, thereby questioning the sufficiency of
the

complaint.

Id.

Alternatively,

a

party

may

go

beyond

allegations contained in the complaint and challenge the facts upon
which subject matter jurisdiction depends.

Id.

In addressing a

factual attack, the Court does not “presume the truthfulness of the
complaint's factual allegations[,]” but “has wide discretion to
allow

affidavits,

hearing

to

12(b)(1).”

other

resolve

documents,

disputed

and

a

limited

jurisdictional

facts

evidentiary
under

Rule

See Holt v. United States, 46 F.3d 1000, 1003 (10th

Cir. 1995).
In this case, the United States appears to mount both a facial
and a factual attack, and, under either approach, this Court lacks
jurisdiction.

The undisputed facts show that the Moore County

Sheriff’s Office arrested Plaintiff, see United States v. Mercado,
No.

1:10-cr-00300-WO-1,

docket

entry

15

at

2,

and

Plaintiff

confirms that the seizure of his property occurred upon his arrest
(see Docket Entry 2 at Section VII).

In other words, Plaintiff’s

own admissions prove that the Moore County Sheriff’s Office, not
the DEA, seized the property at issue.

Moreover, despite the

invitation, Plaintiff did not submit any affidavits or other

5

evidence to demonstrate that the DEA subsequently took custody of
said property.

The affidavit from the DEA stating that they never

seized any of Plaintiff’s property thus stands uncontradicted.
(Docket Entry 13-1, ¶ 3.)

Accordingly, the record establishes as

a matter of law that the United States never had actual possession
of the property.
Furthermore, neither the Complaint nor the record support a
claim for constructive possession.

First, the United States did

not

evidence

use

Plaintiff’s

property

as

because

forfeited his right to trial by pleading guilty.

Plaintiff

See Bennett v.

United States, No. 3:11-CV-103, 2012 WL 1752409, at *3 (N.D.W.V.
May 16, 2012) (unpublished) (finding that the plaintiff had pled
guilty so a constructive possession claim would not lie). Further,
Plaintiff has neither alleged nor produced any evidence to suggest
that the United States directed the Moore County Sheriff’s Office
to seize Plaintiff’s property.
Finally, the simple fact that the United States prosecuted
Plaintiff in this Court does not mean he can maintain his Motion
here.
at

*1

Bratton v. United States, No. 1:09 CV603, 2010 WL 3279302,
(M.D.N.C.

Aug.

19,

2010)

(unpublished)

recommendation

adopted, 2010 WL 3783945 (M.D.N.C. Sept. 28, 2010) (unpublished).
In

sum,

Plaintiff

cannot

claim

constructively possessed his property.

6

that

the

United

States

CONCLUSION
Plaintiff has not borne his burden and demonstrated that this
Court has jurisdiction over this case.
IT IS THEREFORE RECOMMENDED that the United States’ Motion to
Dismiss be granted and that this action be dismissed for want of
subject matter jurisdiction.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 24, 2014

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