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
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 ...