United States District Court, District of New Jersey, D.
April 14, 2000
UNITED STATES OF AMERICA, PLAINTIFF,
KARIM MOHAMMAD, DEFENDANT.
The opinion of the court was delivered by: Bassler, District Judge.
Defendant Karim Mohammad is seeking return of property that was
allegedly not returned to him after he was arrested in November 1997.*fn1
contends that any property that it had, has been returned to Mohammad or
his attorney, David Holman, Esq., from the Office of the Public
Defender. The Court treats Mohammad's request, which was filed pro se, as
a motion for return of property pursuant to Federal Rule of Criminal
Procedure 41(e). For the following reasons Mohammad's motion for the
return of the Rado watch is granted, and the motion for the return of the
cash, beeper, social security documents, driver's license and passports
In June 1991, Mohammad purportedly entered the United States as a
political refugee. after having been shot in the face during the
Afghanistan/Russian War. In November 1997, Mohammad was arrested by the
Drug Enforcement Agency (DEA). After his arrest, he was held in custody
at the Union County Jail. In June 1998, he pled guilty to the drug
charges, and in November 1998, this Court sentenced Mohammad to 70-months
Mohammad now seeks return of property from the Government. Despite the
Government's assertion to the contrary, see AUSA Letter of Sept. 20,
1999, Mohammad clearly enumerated the items he seeks. Mohammad Petition
for Replevin, Feb. 6, 1999. "This includes, but is not limited to [his]
Passport, driver's license, Social Security documents, a Rado Watch, an
electronic paging device ("beeper'), and $1,669.00 in U.S. Currency.'
Mohammad Petition for Replevin.
The Assistant U.S. Attorney (AUSA) has written three letters that
attempt to explain the whereabouts of some of the missing items. The
AUSA's correspondence dated September 20, 1999, indicates that the files
of the DEA "did not contain any documents reflecting the seizure of
property or money from Mohammad." The AUSA's letter also stated that an
agent from the DEA suggested that the AUSA should contact the U.S.
Marshal's Service or the Union County Jail regarding the property.
The AUSA's correspondence dated October 5, 1999, notes that the U.S.
Attorney's Office was informed by the U.S. Marshal's Service that on
December 11, 1998, "certain items" were mailed to Mohammad's attorney,
Holman, of the Public Defender's Office. In that letter, the AUSA
conveyed what was learned from the U.S. Marshal's Service, which claimed
that the items were not inventoried because they were not of monetary
value. That correspondence also explains that the Union County Jail wrote
a letter stating that Mohammad's jacket, pants, shirt, and shoes were the
only pieces of property that were received by the Jail when Mohammad was
booked on November 10, 1997. At that time, Mohammad signed the property
envelope verifying that he had turned over those items, but had not
turned over funds or other property. The Jail provided copies of that
In a letter dated November 8, 1999, the AUSA stated that the $1669 had
been seized and "forfeited by the DEA" as fruits of contraband (even
though the AUSA's letter of September 20, 1999 indicated that a DEA agent
stated that he "could not recall" their seizing anything of monetary
In a letter dated January 3, 2000, the Court informed the parties that
in accordance with a recent Third Circuit decision,
United States v. Chambers, 192 F.3d 374 (1999), it is
necessary for the Court to hold an evidentiary
hearing. Pursuant to Chambers, the parties must
present evidence to enable the Court to review the
following issues: (1) whether the government possesses
property at issue; (2) what happened to the property
if it is no longer in the possession of the
government; and (3) any disputed issue of fact
necessary for the Court to resolve the motion.
Even though "such an action is treated as a civil proceeding for
equitable relief' the Court has jurisdiction over this motion. United
States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999) (additional
citations omitted); see also 28 U.S.C. § 1331.
On March 22, 2000, the Court held an evidentiary hearing. With the
assistance of an interpreter who spoke Push Tu, Mohammad testified to the
facts in what he called his Petition for a Writ of Replevin. Mohammad
added that he was also missing an additional $120 in cash. The Court will
not address that amount because it was never raised in his prior
submissions to the Court. Holman was also sworn in as a witness and
testified that he did receive "certain items." Holman explained that he
received a Federal Express package but could not determine who had sent
it. Holman testified that the contents consisted of only legal papers and
family photos. He found it odd, however, that the package was sent to him
because that had never occurred in the past. Mohammad confirmed that
those were the items he received.
At the hearing, the AUSA was unable to provide any new information
explaining the location of the items Mohammad was seeking. Although the
AUSA had contacted the DEA and the U.S. Marshal's Service several times,
those agencies could not find any inventory lists. The AUSA conceded that
the agencies were normally required to itemize what is seized during an
arrest but that they had failed to do so with Mohammad. The AUSA
presented no witnesses or affidavits verifying any of the information
communicated by the DEA or the U.S. Marshal's Service.
During the hearing, Mohammad testified that when he stated in his
petition that "[r]eceipts for his property were forwarded by Respondent to
his appointed counsel," Petition for Writ of Replevin at 2, he was
actually referring to his legal papers and correspondence. Holman could
not recall there being any receipts in the package that he received and
forwarded to Mohammad. Mohammad corroborated Holman's testimony that
there were no receipts. The pictures and documents appear to be the
"certain items" that the U.S. Marshal's Service sent to Holman.
Pursuant to Federal Rule of Criminal Procedure 41(e), a person who is
aggrieved "by deprivation of property may move the district court for the
district in which the property was seized for the property on the ground
that such person is entitled to lawful possession of the property." Fed.
R.Crim.P. 41(e); see also Government of Virgin Islands v. Edwards,
903 F.2d 267, 273 (3d Cir. 1990).
A. Is there any property that is considered to be contraband?
First, the Court must determine whether any of the items are subject to
forfeiture or are contraband. Although the government may seize evidence
for use in investigation at trial, the government must return the
property when the proceedings have concluded unless it constitutes
contraband or is subject to forfeiture. (Chambers, 192 F.3d at 376)
(citing United States v. Premises Known as 608 Taylor Ave., Apt. 302,
584 F.2d 1297, 1302 (3d Cir. 1978); United States v. Wilson, 540 F.2d 1100,
1103 (D.C.Cir. 1976)).
Here, Mohammad is seeking the return of the following items: his
passports, driver's license, Social Security documents, a watch, a
beeper, and $1,669. A notice of forfeiture indicates that the $1,669 was
"acquired [by the DEA] as a result of a drug-related offense" and is
subject to forfeiture pursuant to 21 U.S.C. § 881. Notice of
forfeiture, dated January 6, 1998. No other items were subject to
forfeiture. On September 17, 1998, forfeiture was
declared by the DEA pursuant to 19 U.S.C. § 1609. No notice
deficiency exists because both Mohammad and his attorney acknowledged
that they had received the notice of forfeiture and had declined to
contest it. Because the cash was seized in connection with the drug
offense, Mohammad is not entitled to its return.
B. Whether the Government's assertion that it has nothing to return
renders the motion moot.
Although the Government contends that any property it once possessed
has been returned to Mohammad or his attorney, the Rule 41(e) motion is
not moot. Chambers, 192 F.3d at 376-77 (explaining that Second, Fourth,
Sixth, Seventh and Eighth Circuits have come to the same conclusion that
when government claims that property has been returned, R. 41(e) motion
is not defeated); see also United States v. Frank, 763 F.2d 551, 553 (3d
Cir. 1985) (stating in IRS proceeding that motion for return of property
is not defeated merely by government stating that it has destroyed the
property or given the property to third parties).
In Chambers, 192 F.3d at 375, the trial court erroneously concluded
that the petitioner's motion was moot because the Government no longer
retained custody of the property at issue. The status of the property
being sought was disposed of as follows: one car was forfeited, another
was released to a repossession company. papers had been destroyed and the
keys and wallets of the petitioner had been returned to his girlfriend.
Id. at "375-76. The Third Circuit vacated and remanded the decision of
the trial court, concluding that "the government can not defeat a
properly filed motion for return of property merely by stating that it has
destroyed the property or given the property to third parties." Ibid.
C. Who Bears the Evidentiary Burden.
When a criminal proceeding has terminated, as is the case here, the
evidentiary burden for a Rule 41(e) motion shifts to the government.
Chambers, 192 F.3d at 375 (citing United States v. Martinson, 809 F.2d 1364
(9th Cir. 1987)). At that point, a presumption exists that the person
from whom the property was allegedly taken has a right to its return.
Id. at 377 (citing Martinson, 809 F.2d at 1369). To rebut that
presumption, the government must prove that it has a legitimate reason to
keep the property, by, for example, demonstrating that it had a claim of
ownership or right to possession that is adverse to that of the movant.
"The government, must do more than state, without documentary support,
that it no longer possesses the property at issue." Id. at 377-78
(emphasis added) (citing Mora, 955 F.2d at 159).
Here, to summarize, the only items for which the Court has any evidence
or information are as follows. First, Mohammad signed the property
envelope acknowledging that he gave the Union County Jail only his
clothes and shoes, but no money. Second, despite its initial assertions
to the contrary, the DEA possessed the $1669 in cash, which has been
forfeited. Third, the U.S. Marshal's Services sent "certain items," which
consisted of papers and photos, to Holman, Mohammad's attorney. Although
there were no affidavits from the U.S. Marshal's Service, the testimony
of Mohammad and Holman did not contradict the assertions of the U.S.
Marshal's Service. The following items remain unaccounted for: the
watch, beeper, license, Social Security documents and passports.
The Court finds two facts to be troubling. First, the AUSA initially
advised the Court that a telephone conversation with the DEA agent
revealed that the agent did not recall seizing any of the items. The
DEA, however, later produced the notice and declaration of forfeiture,
indicating that the $1669 had been forfeited. That inconsistency
demonstrates the DEA's lack of certainty regarding what, if anything, was
seized from Mohammad.
Further, the fact that Mohammad specified that $1669 was seized, and that
is the precise amount that was forfeited, certainly lends credibility to
Second, the DEA failed to inventory the items seized, which, as
conceded by the AUSA, is required. The Department of Justice regulations
governing seized personal property and inventory records state:
Each bureau shall be responsible for establishing and
maintaining inventory records of its seized personal
property to ensure that:
a) The date the property was seized is recorded;
(b) All of the property associated with a case is
recorded together under the case name and number;
(c) The location of storage of the property is
(d) A well documented chain of custody is kept; and
(e) All information in the inventory records is
accurate and current.
41 C.F.R. § 128-50.101 (West 2000). The DEA falls within the
Department of Justice, making the above regulations applicable to that
agency. See 28 C.F.R. § 0.1. Although the Government has submitted
numerous letters, it has not offered any "receipt, log entries or other
documentation — not even an affidavit . . . to support the
assertion that it no longer has the property." Mora, 955 F.2d at 158-59.
Mora involved a case in which it had been established that the Government
had the property at one time. Here, that fact is impossible to establish
because of the DEA's failure to maintain or produce an inventory list
related to Mohammad's arrest. "[i]n light of the government's own
regulation, it may not so easily brush aside [Mohammad's] request for the
return of his property because it cannot be located." Id. at 158
(referring to DEA's failure to keep records of what was seized).
According to the Second Circuit, there is no authority to support the
proposition that a district judge is required to rely on a representation
made by the government or any litigant. Mora, 955 F.2d at 158. The Court
must rely only on the evidence presented at the hearing. Ibid. Despite
the fact that the Court alerted the Government that it would conduct an
evidentiary hearing regarding the missing items, no one from the DEA
appeared, nor did the Agency submit any affidavits. The Court only has the
unrebutted testimony of Mohammad that the items at issue were seized, and
the corroborating testimony by his attorney, Holman, that the package
with the "certain items" did not contain any of the missing items. The
Court finds that Mohammad's and Holman's testimony was credible.
Because this is a case in equity, the court "has the power to award
damages incident to the complaint." Mora, 955 F.2d at 159 (quoting
Martinson, 809 F.2d at 1367-68) (allowing petitioner to request money
damages on remand); see also United States v. Farese, 1987 WL 28830 at *3
(S.D.N.Y. Dec. 15, 1987) (ordering that if items cannot be returned,
government will be required to provide petitioner the amount equal to the
fair market value of the missing items). Regarding the license and Social
Security card, Mohammad can reapply to the appropriate agencies for
replacement identification. The Government has agreed to ascertain
whether the INS has Mohammad's passports from the United States or
Afghanistan. At the hearing, neither party provided any information
regarding the beeper except that it was missing. Because there was no
testimony regarding its value, there is insufficient evidence to grant
As for the Rado watch, Mohammad testified that he purchased it for
$1400. In New Jersey, the owner of personal property may give an estimate
of the value of his own property for purposes of
determining restitution. State v. Rhoda, 206 N.J. Super. 584, 503 A.2d 364
(1986), cert. denied, 105 N.J. 524, 523 A.2d 167 (1986). The Government
did not contest its value. The value of Rado watches range in price from
approximately $1100 to 1800.
The Government is therefore ordered to pay Mohammad restitution in the
amount of $1400. Had the DEA kept an inventory list regarding what was
originally seized, as required by regulation, the outcome might have been
different. "[W]hatever disadvantage or inconvenience may befall the
government by returning the property is due to the ineffectiveness, in
this case, of its record-keeping procedures, and cannot justify barring
petitioner's recovery." United States v. Forese, 1987 WL 28830, at *3.
For the following reasons, Mohammad's motion for a return of property
is granted regarding the Rado watch and denied regarding the $1669 in
cash, beeper, license, Social Security documents and passports.
An appropriate order follows.
This matter having come before the Court on Defendant's motion for
return of property pursuant to Fed.R.Crim.P. 41(e); and
The Court having considered the submissions of the parties; and
The Court having conducted an evidentiary hearing on March 22, 2000;
For the reasons set forth in the Court's Opinion issued this day; and
For good cause shown;
It is on this 14 day of April, 2000 ORDERED that Defendant's motion for
return of property is granted regarding the Rado watch, which is valued
at $1400; and
IT IS FURTHER ORDERED that Defendant's motion for return of property is
denied regarding the $1669 in cash, beeper, license, social security
card, and passports; and
IT IS FURTHER ORDERED that the Government shall pay restitution to
Mohammad in the amount of $1400 within thirty days; and
IT IS FURTHER ORDERED that the Assistant United States Attorney shall
ascertain whether the Immigration and Naturalization Service has either
of Mohammad's passports.