Hill v. United States of America

Filing 30

ORDER DENYING THE PETITION FOR RETURN OF PROPERTY DKT. NO. 1 AND ADOPTING THE REPORT AND RECOMMENDATION DKT. NO. 27 ; ORDERS that this case be DISMISSED WITHOUT PREJUDICE and STRICKEN from the docket of this Court. Signed by District Judge Irene M. Keeley on 3/22/2013. (Copy counsel of record via CM/ECF, pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 3/22/2013: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KEVIN KARL HILL,
Petitioner,
v.

//

CIVIL ACTION NO. 1:12CV92
(Judge Keeley)

UNITED STATES OF AMERICA,
Defendant.
ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
Pending before the Court is the Report and Recommendation
(“R&R”) of the magistrate judge concerning the plaintiff’s Petition
for Return of Property pursuant to Fed. R. Crim. Pro. 41(g) (“Rule
41(g)”). For the following reasons, the Court ADOPTS the magistrate
judge’s R&R.
I.
On March 22, 2012, the pro se plaintiff, Kevin Karl Hill
(“Hill”), filed a Motion for Return of Property pursuant to Rule
41(g) in his closed criminal case. See United States v. Hill,
2:04CR30 (N.D.W.V., Wheeling Division). Hill petitions for the
return of certain items of personal property seized by the Barbour
County Sheriff’s Department (“Sheriff’s Department”) and in the
possession

of

the

West

Virginia

State

Police

(“WVSP”).

personal property includes:
1)
2)

12-gauge shotgun(unknown brand);
Antique Winchester arm model 37, 12-gauge shot gun;

This

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
3)
4)
5)
6)
7)
8)
9)
10)
11)
12)

Ruger super black hawk .44 magnum revolver with
Leupold scope;
New England firearm 12-gauge shotgun # 04-66;
Lighter resembling a gun;
All ammunition and other firearms related material;
Osterizer brand 12-speed blender;
Black griddle style hot plate;
One violin given as evidence;
U.S. currency, $498.00;
Husquvarna [sic] chain saw; and
Wooden antique jewelry box (special value).

(Dkt. No. 1-1). The WVSP destroyed each of these items, except the
$498.00 in U.S. currency, in the spring of 2012. (Dkt. Nos. 7 at 3;
7-4 at 1).
At the direction of the Court, the Clerk of Court removed
Hill’s Rule 41(g) motion from his closed criminal case on June 1,
2012, and filed it as the initial pleading in this civil case.
(Dkt. No. 1). The Clerk then sent Hill a Notice of General
Guidelines for Appearing Pro Se in Federal Court (Dkt. No. 3), and
granted Hill leave to proceed in forma pauperis. Pursuant to L.R.
Civ. Pro. 72.01(d)(6), the Court then referred this matter to
Magistrate Judge James E. Seibert for initial screening and an R&R.
On June 4, 2012, the magistrate judge directed the United
States to respond to Hill’s motion. The United States did so on

2

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
July 2, 2012, and Hill replied on August 3, 2012.1 The United
States supplemented its answer with two additional exhibits on
October 2, 2012. Hill did not oppose those supplements; in fact, in
his response on October 15, 2012, he cited the additional exhibits
offered by the United States.
On

November

20,

2012,

the

magistrate

judge

recommended

dismissing Hill’s petition. (Dkt. No. 27). In his R&R, he concluded
that, under the general six-year statute of limitations applicable
to suits brought against the United States, see United States v.
Minor, 228 F.3d 352, 359 (4th Cir. 2009), Hill’s motion was timebarred. Moreover, he found that the Court lacked jurisdiction to
award Hill monetary damages for seized property that has been
destroyed.
Hill filed timely objections to the R&R on November 30, 2012
(Dkt. No. 29), in which he contended that the evidence adduced by
the United States regarding the destruction of his property is
insufficient

and

the

Court,

at

a

minimum,

should

order

the

production of affidavits verifying the property’s destruction. Hill
also argues that the magistrate judge improperly raised the statute
of limitations sua sponte, and that, in any event, his motion is
1

Also on July 2, 2012, Hill filed a motion for leave to proceed in
forma pauperis (dkt. no. 8), which the magistrate judge granted on
August 8, 2012. (Dkt. No. 16).

3

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
timely. Finally, he maintains that the Court should order the
return of the $498 in U.S. currency, which was seized by the
Sheriff’s Department but never destroyed.
After conducting a de novo review of the issues raised, the
Court concludes that Hill’s objections are without merit. It
therefore ADOPTS the magistrate judge’s R&R and DISMISSES Hill’s
Rule 41(g) motion WITHOUT PREJUDICE.
II.
On September 22, 2004, during an attempt to serve a stateissued arrest warrant on a person named Kyle Lantz, Barbour County
Sheriff’s Department deputies discovered guns and the components of
a methamphetamine lab in Hill’s home and an adjoining trailer.
Motion to Suppress All Evidence at 1-2, United States v. Hill, No.
2:04CR30 (N.D.W. Va. Jan. 14, 2005). On December 15, 2004, a
federal grand jury indicted Hill on three counts and sought
forfeiture of all firearms involved in the commission of the
charged offenses. Then on February 15, 2005, the United States
sought a superseding indictment named Hill in only two counts, but
maintained the forfeiture allegation from the initial indictment.
On April 15, 2005, Hill pleaded guilty to Count One of the
Superseding Indictment, which alleged a drug conspiracy. Hill later
moved to withdraw the guilty plea, but the court denied that motion
4

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
on June 30, 2006. Three months later, on October 2, 2006, it
sentenced

him

to

one-hundred

incarceration for Count One.

and

twenty

(120)

months

of

A forfeiture order was neither

pursued nor entered in Hill’s case.
III.
Hill brings this petition for return of property seized in the
course of the 2005 investigation pursuant to Rule 41(g), formerly
Rule 41(e).2 Rule 41(g) states:
A person aggrieved by an unlawful search and seizure of
property or by the deprivation of property may move for
the property’s return. The motion must be filed in the
district where the property was seized. The court must
receive evidence on any factual issue necessary to decide
the motion. If it grants the motion, 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.
“In a postconviction Rule 41(e) proceeding, ‘a criminal defendant
is presumed to have the right to the return of his property.’”
United States v. Lindsey, 202 F.3d 261, *1 (4th Cir. 2000) (per
curiam) (quoting United States v. Mills, 991 F .2d 609, 612 (9th
Cir. 1993)). However, “[a] Rule 41[(g)] motion is properly denied
‘if the defendant is not entitled to lawful possession of the

2

“As a result of the 2002 Amendments [to the Federal Rules of
Criminal Procedure], Rule 41(e) now appears with minor stylistic changes
as Rule 41(g).” United States v. Rayburn House Office Building, 497 F.3d
654, 663 (D.C. Cir. 2007).

5

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
seized

property,

the

property

is

contraband

or

subject

to

forfeiture[,] or the government’s need for the property as evidence
continues.’” United States v. Smith, No. 1:01CR0007, 2007 WL
3475759 (S.D.W. Va. Nov. 13, 2007) (quoting Mills, 991 F.2d at
612). Furthermore, regardless of Rule 41(g), due to sovereign
immunity concerns, a district court lacks jurisdiction to award
damages for property destroyed by the government. United States v.
Jones, 225 F.3d 468, 470 (4th Cir. 2000).
A.
Based

on

Jones,

it

is

clear

that

this

Court

“lack[s]

jurisdiction to award damages under [Rule 41(g)] for the property
destroyed by the Government.” Id. WVSP records indicate that,
excluding the $498 in U.S. currency, all of the property sought by
Hill was destroyed in 2012. See (Dkt. No. 7-4). Thus, even assuming
Hill is entitled to it, the Court lacks jurisdiction to order the
United States to compensate him for the destroyed property.
While Hill concedes the Court’s lack of jurisdiction, he
nonetheless argues that WVSP records are insufficient to rule out
the possibility that members of the WVSP did not destroy the
property. Alternatively, he objects that the WVSP did not follow
its own policies when it destroyed his property.

6

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
As to Hill’s first objection, Rule 41(g) requires the Court to
“receive evidence on any factual issue necessary to decide the
motion.” Fed. R. Crim. P. 41(g). “‘This requirement does not mean
that a district court must conduct an evidentiary hearing to
resolve all factual disputes. It does require, however, that the
district court . . . resolve factual disputes’ on evidence, rather
than

on

mere

allegations.”

Robinson

v.

United

States,

No.

3:11CV369, 2013 WL 682894 (E.D. Va. Feb. 22, 2013) (quoting United
States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007)). “Affidavits
or documentary evidence, such as chain of custody records, may
suffice to support the district court’s determination in a given
case.” United States v. Cardona-Sandoval, 518 F.3d 13, 16 (1st Cir.
2008).
The Government’s exhibits include detailed property logs
listing the individual items sought by Hill and their date of
destruction.

(Dkt.

No.

7-4).

Hill,

in

contrast,

provides

no

evidence in support of his suspicion that WVSP members may have
appropriated his property for private use. (Dkt. No. 29 at 6).
Thus, his unsupported allegation fails to rebut the evidence
proffered by the United States, and the evidence preponderates that
the WVSP destroyed all property listed in Hill’s motion, except the
$498.00 in U.S. currency. See (Dkt. No. 7-4 at 1); Cardona7

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
Sandoval, 518 F.3d at 16 (requiring evidentiary determination);
United States v. Holland, 214 F.3d 523, 527 (4th Cir. 2000) (“a
motion for return of property made pursuant to Federal Rule of
Criminal Procedure 41(e) is a civil action against the United
States” (internal quotations omitted)).
Likewise, Hill’s second objection regarding the WVSP’s alleged
failure to follow its own policies for the destruction of evidence
fails because the rule of Jones does not allow this Court to
exercise jurisdiction over Rule 41(g) petitions when the property
is destroyed, regardless of the propriety of the government’s
actions. Jones, 225 F.3d at 470 (“Further, sovereign immunity can
be waived only by an unequivocal and express act of Congress. Rule
41(e) does not contain a waiver of sovereign immunity.” (internal
citations omitted)). Thus, because the State of West Virginia has
not waived sovereign immunity as to Rule 41(g) petitions, the
propriety of the destruction of Hill’s property is not a matter
this Court may decide.
B.
It is undisputed that the WVSP did not destroy the $498.00 in
U.S. currency sought by Hill.3 (Dkt. No. 7-4 at 1). Despite its

3

For the purposes of Hill’s motion, the Court will assume that he is
lawfully entitled to possession of the $498.

8

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
availability, however, the Court nevertheless lacks jurisdiction to
order the return of this money.
“[T]he Government cannot return property it does not possess,
and therefore a motion for the return of property must be denied if
the

Government

does

not

have

possession

of

the

sought-after

property.” Bennett v. United States, No. 3:11-CV-103, 2012 WL
1752409 (N.D.W. Va. May 16, 2012) (citing United States v. Solis,
108 F.3d 722, 723 (7th Cir. 1997); United States v. White, 718 F.2d
260, 262 (8th Cir. 1983); Glover v. United States, No. CR505-020,
2008 WL 4533928, at *1 (S.D.Ga. Oct. 8, 2008)). Here, WVSP property
logs make clear that the State of West Virginia, and not the
Government, possesses the $498 in U.S. currency sought by Hill in
his Rule 41(g) petition. Therefore, Hill’s motion must be denied.
It is correct that, in limited circumstances, a district court
may order the return of property possessed by state authorities.
“‘Those circumstances include actual federal possession of the
property forfeited by the state, constructive federal possession
where

the

property

was

considered

evidence

in

the

federal

prosecution, or instances where property was seized by state
officials acting at the direction of federal authorities in an
agency capacity.’” Bennett, 2012 WL 1752409 at *3 (quoting Clymore

9

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
v.

United

States,

164

F.3d

569,

571

(10th

Cir.

1999)).

Nevertheless,
[a]n ‘assertion that federal authorities controlled the
ongoing investigation and were involved in the seizures,
without more, is insufficient to establish the extensive
federal possession or control necessary to make Rule
41(e) the appropriate vehicle by which to recover the
state-forfeited property.’
Id. (quoting Clymore, 164 F.3d at 571).
As the WVSP evidence logs make clear (dkt. no. 7-4), the
Government does not have actual possession of the $498 in U.S.
currency Hill seeks. Nor was that money ever used as evidence in
Hill’s underlying federal prosecution; Hill pled guilty in that
proceeding, which obviated any need for the Government to produce
the money as evidence in a trial. See Bennett, 2012 WL 1752409 at
*3. Moreover, state authorities seized the cash incidental to a
search for a state fugitive, not at the

direction of federal

authorities. At bottom, therefore, Hill is left with the allegation
that the Government was involved in the ongoing investigation,
which is insufficient to establish constructive possession by the
Government of the forfeited property. See id. (quoting Clymore, 164
F.3d at 571).4

4

Because the record also establishes that the State of West Virginia,
and not the Government, also possessed the destroyed property, this
analysis applies as well to that property were it still extant. Moreover,

10

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
Thus, the record is clear that the Government did not actually
or constructively possess the $498 in U.S. currency sought by Hill
in his Rule 41(g) petition. Therefore, “this Court is not the
proper jurisdiction for the petitioner to petition for the return”
of the money, Bennett, 2012 WL 1752409 at *3, nor is the United
States the proper party to such an action. United States v. Gomez,
382 F. App’x 344, 345 (4th Cir. 2010). Lacking subject matter
jurisdiction over the $498 in U. S. currency possessed by the WVSP,
the Court DISMISSES Hill’s petition for the return of that property
WITHOUT PREJUDICE.5

Hill could not establish that the Government constructively possessed the
destroyed property for the same reasons he cannot establish that the
Government constructively possessed the $498 cash.
5

Because Hill proceeded in forma pauperis, his complaint is subject
to screening under 28 U.S.C. § 1915(e). See (Dkt. No. 16). Therefore, the
Court may dismiss his claim if it is frivolous, malicious, or fails to
state a claim upon which relief may be granted. See Cochran v. Morris,
73 F.3d 1310, 1315-16 (4th Cir. 1996). A complaint is frivolous if “it
lacks an arguable basis either in law or in fact.” McLean v. United
States, 566 F.3d 391, 399 (4th Cir. 2009) (quoting Neitzke v. Williams,
490 U.S. 319, 325 (1989)). An in forma pauperis complaint that fails to
establish subject matter jurisdiction lacks an arguable basis in law, and
therefore may be dismissed sua sponte. Mack v. Commonwealth of
Massachusetts, 204 F. Supp. 2d 163, 166 (D. Mass. 2002); Hall v. Herman,
896 F. Supp. 588, 590 (N.D.W. Va. 1995).
Furthermore, “when a federal court concludes that it lacks
subject-matter jurisdiction, the court must dismiss the complaint in its
entirety,” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and
“questions concerning subject-matter jurisdiction may be raised at any
time by either party or sua sponte by [the] court.” Plyler v. Moore, 129
F.3d 728, 732 (4th Cir. 1997).

11

HILL v. UNITED STATES

1:12CV92

ORDER DENYING THE PETITION FOR RETURN OF
PROPERTY [DKT. NO. 1] AND ADOPTING THE
REPORT AND RECOMMENDATION [DKT. NO. 27]
IV. CONCLUSION
For the reasons stated above, the Court:
1.

ADOPTS the Report and Recommendation (dkt. no. 27);

2.

DENIES Hill’s Rule 41(g) petition (dkt. no. 1); and

3.

ORDERS that this case be DISMISSED WITHOUT PREJUDICE and
STRICKEN from the docket of this Court.

If the petitioner should desire to appeal the decision of this
Court, written notice of appeal must be received by the Clerk of
this Court within thirty (30) days from the date of the entry of
the Judgment Order, pursuant to Rule 4 of the Federal Rules of
Appellate Procedure.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: March 22, 2013.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

12