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April 14, 2000


The opinion of the court was delivered by: Bassler, District Judge.



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 imprisonment.

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 paperwork.

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 value),

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 the 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 ...

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