United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
MATTER comes before the Court upon several motions
by Defendant Roy Depack. See ECF Nos. , ,
&  (“Motions”). After careful review, for
the reasons set forth below the Court GRANTS
Defendant's request for a copy of the docket sheet in
this matter and DENIES the remainder of the
PROCEDURAL BACKGROUND AND THE INSTANT MOTIONS
April 11, 2017, the Government filed a Criminal Complaint
against Defendant Roy Depack (“Defendant” or
“Depack”) alleging one count of conspiracy to
commit mail and wire fraud in violation of 18 U.S.C. §
1349. ECF No. . On February 15, 2018, Defendant signed a
plea agreement, ECF No. , as to that single count. Under
the terms of the plea agreement, the Government and Defendant
agreed, among other things, that if the Court imposed a
sentence no greater than 50 months but no less than 40 months
and a term of supervised release of three years, the
Government would bring no further charges against Defendant
based on the conduct described in the Criminal Complaint and
subsequent Information. Id. at 1-3, 7. The
Government and Defendant further agreed to waive any right to
file any appeal, collateral attack, writ or motion
challenging the conviction or sentence if the plea was
accepted and sentence entered within the agreed upon range.
Id. at 4. Under the plea agreement, both the
Government and Defendant stipulated to certain facts,
including that Depack was an “organizer, leader,
manager, or supervisor of criminal activity.”
Id. at 7. Defendant plead guilty on March 20, 2018.
After adjournment, sentencing was set for November 1, 2018.
to sentencing Defendant, although represented by counsel,
submitted certain pro se filings challenging the
findings in the presentence report. See ECF Nos.
, , & . The Court construed these filings as
sentencing memoranda. The Government also submitted a
sentencing memorandum. ECF No. . On November 1, 2018, the
Court sentenced Depack to forty-five months incarceration and
three years of supervised release. ECF Nos.  & .
The Court further ordered restitution and the payment of a
special assessment. Id.
November 7, 2018, Defendant filed a pro se motion
under Federal Rule of Criminal Procedure 35(a). ECF No. 
(“Rule 35(a) Motion”). In the Motion, Defendant
objects to the two-level enhancement for a leadership role as
stipulated to in the plea agreement and argues that the Court
incorrectly consulted a “draft” presentence
report. Id. Defendant also argues that the Court
mentioned a different restitution figure- $523, 262.00-during
the hearing that was fixed in the Judgment, $394, 143.21. Two
days later, Defendant filed a Notice of Appeal of his
sentence. ECF No. .
November 14, 2018, Defendant filed a Motion for Return of
Property. ECF No.  (“Motion for Return of
Property”). In the Motion, Defendant requests return of
certain property that was in Defendant's possession when
he was arrested in connection with this case on April 12,
2017, including three cell phones and $485.00 in cash. ECF
No.  at 2. Defendant contends that the money “had
nothing to do with my crime” and that he needs the cell
phones to pursue his civil case currently pending before The
Honorable Susan D. Wigenton. See Depack v. Esmorado, et
al., No. 17-cv-7136. In addition, Depack also seeks the
return of certain property that was in his possession when
his supervised release was revoked in an unrelated case
before The Honorable Stanley R. Chesler. See United
States v. Depack, No. 04-cr-00599, ECF No. .
December 12, 2018, Defendant filed a third motion. ECF No.
 (“Miscellaneous Motion”). In this motion,
Defendant complains that his motions have not yet been
“answered” in violation of the Fourteenth
Amendment. Id. Defendant further states regarding
his request for return of property that an FBI Agent
contacted Defendant's lawyer on November 25, 2018 to
return certain property. Id. As of December 12,
2018, Defendant states that the property had not yet been
returned to his lawyer. Id. Finally, Defendant
reiterates his request for return of property in the
unrelated criminal matter before Judge Chesler. Id.
Government filed an objection to the Rule 35(a) Motion, ECF
No. . Defendant filed a reply. ECF No. . The
Government also filed a “protective” Notice of
Cross-Appeal on December 13, 2018 in response to
Defendant's Notice of Appeal. ECF No. . No. other
papers were filed in opposition to the pending motions.
THE RULE 35(a) MOTION
Rule 35(a), “within 14 days after sentencing, the court
may correct a sentence that resulted from arithmetical,
technical, or other clear error.” Fed. R. Crim. P. 35.
The fourteen-day time limit is jurisdictional and begins to
run from the “oral pronouncement of sentencing.”
United States v. Higgs, 504 F.3d 456, 458 (3d Cir.
2007). Accordingly, while the Court may make certain
corrections to a sentence within fourteen days, the Court may
not do so once this fourteen-day period expires, regardless
of whether the motion itself was filed within the
fourteen-day window. Id.
the Court orally pronounced Defendant's sentence on
November 1, 2018. As of today, the fourteen-day period has
expired, and the Court lacks jurisdiction to hear
Defendant's motion. Accordingly, the Rule 35(a) Motion,
ECF No. , is dismissed for lack of jurisdiction.
Higgs, 504 F.3d at 463; see also United States
v. James, 639 Fed.Appx. 834, 836 (3d Cir. 2016)
(“The District Court did not deny James's motion
until after the fourteen-day time limit expired. Because the
District Court lacked jurisdiction at the time it ruled, it
should have dismissed James's motion rather than deny it
on the merits.”).
MOTION FOR RETURN OF PROPERTY
is well settled that the government is permitted to seize
evidence for use in investigation and trial, but that such
property must be returned once criminal proceedings have
concluded, unless it is contraband or subject to
forfeiture.” United States v. Chambers, 192
F.3d 374, 376 (3d Cir. 1999). Thus, under Fed. R. Crim. P.
41(g), the district court has jurisdiction over a motion for
return of property made after the termination of criminal
proceedings. Id.; see also Chambers, 192
F.3d at 376. Such a motion is “civil in nature and
should be treated as a ‘civil complaint.' ”
United States v. Albinson, 356 F.3d 278, 284 n.9 (3d
Cir. 2004). The ...