Hill v. UNITED STATES OF AMERICA
Filing
22
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/12/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ANTOINE HILL,
Plaintiff,
v.
Criminal No.
3:llcv480
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
Antoine
this
Hill,
"MOTION FOR
Property")
a federal prisoner proceeding pro se,
RETURN OF
{Docket No. 2)
SEIZED PROPERTY"
pursuant
This United
to
("Motion to Return
Federal
Procedure
41(g).
States
has
No. 14.)
Hill filed a Reply (Docket No.
filed
Rule of
responded.1
15)
Motion for Summary Judgment (Docket No. 18).
Criminal
(Docket
and an unsupported
The matter is ripe
for judgment.
I.
PROCEDURAL HISTORY
Richmond City Police targeted Hill during an investigation
for drug trafficking.
2007,
Richmond
City
(Mot.
Police
Ret.
Prop.
executed
a
12. )2
search
On August 10,
warrant
at
the
1 The Clerk docketed the response of the United States as a
motion for summary judgment.
Because Hill's Motion to Return Property and attachments
consistent numbering,
the Court employs the numbers
lack
assigned
system.
to this
document
from
the
Court's
CM/ECF docketing
residence
of
Hill,
515
West
Richmond,
Virginia,
and
seized,
paraphernalia,
United
a
States
jewelry.
In
semiautomatic
currency,
Franklin
Street,
inter
pistol,
documents
Apt.
alia,
heroin,
ammunition,
and
#316,
papers,
drug
$6867.00
phones,
in
and
(Mot. Ret. Prop. 1-2, 9, 15-18.)
Circuit
the
Court
of
the
City
of
Court") , Hill waived service of a copy of
Notice of Seizure,
and "waive [d]
Richmond
the
Information and
any and all interest in said,
$ 6867.00 in United States Currency[]
. . . and agree[d] to the
entry of the final Order of Forfeiture
....
parte."
Commonwealth v.
Stipulation and Agreement
United States Currency,
filed Aug.
10,
2007)
et.
al.,
("Circuit
2,
No.
(alterations
to the Court ex
07F4391/BWS
to
original) .
(Va.
The
$6867.00
Cir.
Ct.
Circuit
Court entered a Final Order of Forfeiture for $6867.00 in United
States
with
currency,
the
finding
illegal
property,
in
used the
manufacture,
controlled substances,
the
Hill
sale,
or Hill furnished,
exchange
for
a
property
or
in connection
distribution
of
or intended to furnish
controlled
substance
in
violation of Section § 18.2-248 or 18.2-248.1 of the Virginia
Code.
Final
Order of
Forfeiture 2-3,
United States Currency,
Nov.
27,
2007).
The
et. al., No.
Circuit
forfeited to the Commonwealth.
Id.
Commonwealth v.
07F4391/BWS
Court
at 3.
ordered
$6867.00
(Va.
Cir. Ct.
the
property
Based
the
search
Hill
indicted
on
on
federal
Indictment
3:07cr407
the
1-2
of
his
drug
(Docket No.
residence,
and
3),
firearm
United
as
subject
to
United
charges.
States
(E.D. Va. filed Oct. 16, 2007).
following property
the
v.
States
Sealed
Hill,
No.
The Indictment listed
forfeiture
upon
conviction of the crimes charged in the Indictment:
Hill's
$6900.00 in
United States currency, a Kel-Tec 9mm semi-automatic pistol, and
9mm ammunition.
Id.
Following a jury trial,
Hill
of
possession
violation
furtherance
U.S.C.
of
of
21
a
§ 924(c),
convicted
felon,
with
U.S.C.
drug
§
this Court entered a conviction of
intent
841,
to
distribute
possession
trafficking
crime,
in
of
heroin,
a
in
firearm
in
violation
of
18
and possession of a firearm/ammunition by a
in
violation
of
18
U.S.C.
§
922(g)(1).
Judgment 1 (Docket No. 36), United States v. Hill, No. 3:07cr407
(E.D.
Va.
Oct.
Procedure 32.2,
7,
2008).
Pursuant
2008).
Rule
of
Civil
Motion for Forfeiture of Property 1
(Docket No. 31), United States v.
6,
Federal
the Government moved for criminal forfeiture of
the firearm and ammunition.3
Oct.
to
The
Court
Hill, No. 3:07cr407
ordered criminal
(E.D. Va.
forfeiture
of
the
3 In its Response, the United States notes that the $6900.00
listed in the indictment was the same $6867.00 seized by the
Richmond Police.
(Resp. Mot. Ret. Prop. 3, n.l.)
Because Hill
forfeited this currency to the Commonwealth pursuant to the
Final Notice of Forfeiture, the United States moved for criminal
forfeiture of only the firearm and ammunition.
firearm and ammunition.
Order
of Forfeiture
(Docket No.
34),
United States v. Hill, No. 3:07cr407 (E.D. Va. Oct. 7, 2008).
On
October
Property,
States
seeking
Government
formally
Hill
return
(2)
documents
(Mot.
must
2010,
the
currency;
(4) jewelry.
never
26,
Ret.
return
Prop.
the
instituted
of:
filed
(1)
the
and
Motion
1-2.)
(3)
He
[sic]
Return
in
United
phones;
argues
because
foreiture
to
$6,867.00
papers;
property
a
his
that
"the
(Docket No. 15)
Hill's
Motion
for
at 1-2.)
Return
of
proceeding(s)
For the reasons
Property
will
the
government
conformity with established United States Law . . . ."
Br.
and
in
(Reply
set forth below,
be
dismissed
with
respect to the currency and the jewelry.4
II.
RELIEF PURSUANT TO FED. R. CRIM.
P. 41(G)
Federal Rule of Criminal Procedure 41(g) provides:
A
person
aggrieved
by
an
unlawful
search
and
seizure of property or by the deprivation of property
may move
for
be filed
seized.
factual
the property's
return.
The motion must
in the district where the property
The court must receive evidence on
issue necessary to decide
grants the motion,
the motion.
was
any
If it
the court must return the property
to the movant, but may impose reasonable conditions to
protect access to the property and its use in later
proceedings.
Because the United States never possessed the currency and
jewelry, the Court lacks subject matter jurisdiction over the
property,
and
the
appropriate
disposition
is
dismissal.
United States v. Downs, 22 F. App'x 961, 962 (10th Cir. 2001).
4
See
Fed. R.
Crim.
P.
41(g).
The Court properly denies a motion for
return of property if the defendant lacks entitlement to "lawful
possession of the seized property,
the property is contraband or
subject to forfeiture or the government's need for the property
as
evidence
713,
719
F.2d
609,
continues.'"
(8th Cir.
612
United
2002)
States
v.
Vanhorn,
(quoting United States
(9th Cir.
1993) ).5
296
F.3d
v. Mills,
Additionally,
991
appropriate
circumstances exist for a Rule 41(g) motion only if the United
States
338
possesses
F.3d 990,
F.3d 722,
723
the property.
995
(9th Cir.
(7th Cir.
defendant may use Rule
return
of
property
See United States
2003);
1997).
v.
Marshall,
United States v. Solis,
108
In "limited circumstances,"
a
41(g) "as a vehicle to petition for the
seized
by
state
authorities."
Clymore
v.
United States, 164 F.3d 569, 571 (10th Cir. 1999), superseded 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).6
These
5
The cases cited herein predating 2002 address motions
brought pursuant to Federal Rule of Criminal Procedure 41(e).
The Advisory Committee reorganized Rule 41 in 2002, amended Rule
41(e), and recodified it as Rule 41(g).
The Advisory Committee
Notes described the changes as "stylistic only."
See Fed. R.
Crim. P. 41, Advisory Committee Notes, 2002 Amendments.
6 Clymore remains good authority for the above proposition
set
forth
in
this
Memorandum
Opinion.
However,
Congress
significantly amended the civil forfeiture statute discussed in
Clymore.
See Kadonsky, 3 F. App'x at 904 n.6.
circumstances include "actual federal possession of the property
forfeited by the state," or constructive federal possession of
the property:
evidence
(1)
in the
government
where the
government
federal prosecution,
directed
state
uses
or
officials
(2)
to
the property as
where the
seize
the
federal
property.
Clymore, 164 F.3d at 571; see United States v. Copeman, 458 F.3d
1070,
1072
Moreover,
States
Cir.
2006);
at
Solis,
108
F.3d
722-23.
a state's decision to defer prosecution to the United
by
property
(10th
itself,
fails
seized during
to
the
confer
state
constructive
possession
Copeman,
investigation.
of
458
F.3d at 1072.
A.
Return Of The $6867.00
Here,
the United States
entitlement
to
possession
establishes
of
the
that
$6867.00.
Hill
The
lacks
lawful
United
States
argues that it never possessed the currency,7 and in any event,
Hill forfeited the currency through state proceedings because he
used
the
Moreover,
currency
the
Final
in
connection
Order
of
with
the
drug
offenses.
Forfeiture
and
Stipulation
and
Agreement entered in the Circuit Court of the City of Richmond
7 The United States submits the Declaration of Anthony
Spotswood, a Special Agent with the Richmond office of the
Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF")
(Resp. Mot. Ret. Prop. Attach. 1.)
Spotswood states that he
checked the ATF's evidence inventory system and determined that
ATF never possessed the property Hill seeks to have returned.
Id.
demonstrate that Hill forfeited the $6867.00 to the Commonwealth
of Virginia in a state proceeding.
Virginia
judicially
entitlement
to
Rule
relief.
41(g)
this
seized
States v. Fitzen,
Hill
the
property,
See
$6867.00,
and
that
Hill
he
cannot
164
Clymore,
80 F.3d 387,
contends
Because the Commonwealth of
F.3d
389 (9th Cir.
the
United
lacks
avail
at
lawful
himself
571-72;
of
United
1996).
States
constructively
possessed the $6,867.00 of forfeited currency.8
However,
Hill
ignores the fact that he lacks lawful entitlement to property
that the state forfeited,
foreclosing Rule 41(g) relief for the
currency.
for Return
Hill's
Motion
of
Property regarding the
return of the $6867.00 will be dismissed.
B.
Return Of The Papers And Documents, Phones, And Jewelry
Hill also seeks return of papers and documents, phones, and
jewelry seized by the state pursuant to a search warrant.
argues
entitlement
government
never
to
formally
against this property.
concedes that
argues
the
return
of
this
instituted
Hill
property because
forfeiture
(Mot. Ret. Prop. 5.)
proceedings
The United States
it never sought forfeiture of this property,
that the
state
seized the
the
property pursuant
to a
but
state
Hill directs the Court to a trial transcript excerpt in
which the United States asks Hill whether he forfeited money
found in his apartment to state detectives.
Hill responds: "I
never
Thus,
forfeited
he
contends
nothing."
the
(Reply
Government
in his federal prosecution.
Id.
7
Brief
Attach.
C
217-18.)
used the
$6867.00
as
evidence
search
warrant,
involvement
and
in the
none
of
Hill's
pleadings
suggest
(Resp.
Mot.
Prop.
seizure.
Ret.
federal
4.)
The
United States submits the Declaration of Special Agent Spotswood
of the ATF to demonstrate that the United States never possessed
this property.
nor
the
(Resp. Mot. Ret. Prop. Attach.
record
shows
that
the
United
constructively possessed the jewelry.
1.)
Neither Hill
States
actually
or
Hill's Rule 41(g) motion
will be denied regarding the return of the jewelry.
A
cursory
review
of
the
criminal
trial
docket,
however,
reveals the United States entered both phones and documents into
evidence at trial.
United
2008) .
States v.
The
Exhibit and Witness List 1 (Docket No. 26),
Hill,
United
No.
States
3:07cr407
submits
(E.D.
the
Va.
filed July 2,
Declaration
of
Detective
Todd Bevington of the City of Richmond Police Department ("RPD")
to
demonstrate
phones
and
that
documents.
the
RPD
currently
(Resp.
Opp'n
possesses
Mot.
Summ.
the
J.
cellular
Attach
1.)
The United States argues that "[t]he use of some property as
evidence at trial in no way diminishes" the conclusion that "the
[RPD] and not ATF had custody of the property seized from Hill."
(Resp. Opp'n Mot. Summ. J.
6.)
The United States, however, fails
to address the issue of constructive possession of these items
in its response.
See Copeman,
458 F.3d at 1072; Clymore,
164
F.3d at 571; Solis, 108 F.3d at 722-23; see, e.g. , United States
v.
Watson,
Okla.
No.
04-CR-182-TCK,
July 28,
2011)
2011
WL
(finding items
3241357,
at
*l-2
(N.D.
seized by state officials,
which remained in state custody were constructively possessed by
United
States
federal
because
the
prosecution).
items
Given
were
this
introduced
omission,
the
as
evidence
Court
in
declines
to resolve the proper disposition of the phones and jewelry at
this juncture.
III.
Based
Summary
on
the
Judgment
denied in part.
foregoing,
(Docket
be
directed
14)
United
will
be
States's
granted
Motion
in
part
for
and
Hill's Motion to Return Property (Docket No. 1)
denied.
to
the
No.
will be dismissed in part.
will
CONCLUSION
(Docket
submit
Hill's Motion for Summary Judgment
No.
further
18.)
briefing
The
Government
addressing
will
be
constructive
possession.
The Clerk of the Court is directed to send a copy of this
Memorandum Opinion to Hill and counsel for the United States.
An appropriate Order shall issue.
/a/
(IIP
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: hjtu^i*,™^
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