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United States v. Depack

United States District Court, D. New Jersey

September 9, 2019



          WILLIAM J. MARTINI, U.S.D.J.

         THIS MATTER comes before the Court upon the Government's Turn Over Motion, ECF No. [59], filed on February 25, 2019. Also before the Court are Defendant's Motion to Modify Conditions of Supervised Release, ECF No. [72]; Motion Pursuant to Rule 41(g), ECF No. [76]; and Motion to Withdraw, ECF No. [77]. The Court is further in receipt of two letters from Defendant, which the Court construes as Motions for Return of Property. ECF Nos. [70] & [78]. After careful review, for the reasons set forth below the Court GRANTS the Turn Over Order, ECF No. [59], and GRANTS Defendant's request for a copy of his docket sheet and DENIES the remainder of Defendant's Motions.


         On April 11, 2017, the Government filed a Criminal Complaint against Defendant Roy Depack ("Defendant" or "Mr. Depack") alleging one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349. ECF No. [1]. On February 15, 2018, Defendant signed a plea agreement, ECF No. [39], as to that single count.

         Pursuant to the plea agreement, Defendant agreed that the sentencing judge "will order Mr. Depack to pay an assessment of $100" and will "order Mr. Depack to pay restitution pursuant to Title 18, United States Code, Section 3663 et seq." ECF No. [39] at 2. The plea agreement further specified that "[u]nder Title 18, United States Code, Sections 3663 and 3663A, Mr. Depack agrees to make full restitution for all losses resulting from the offense of conviction or from the scheme, conspiracy, or pattern of criminal activity underlying that offense, to such victims and in such amounts as determined by the Court at sentencing." Id. at 3. Under Schedule A, the Government and Mr. Depack stipulated to actual and intended losses of more than $550, 000 but less than $1, 500, 000. Id. at 7.

         On November 1, 2018, the Court sentenced Mr. Depack to forty-five months incarceration and three years of supervised release. ECF Nos. [44] & [45]. The Court further ordered restitution in the amount of $394, 143.21 and the payment of a special assessment of $100. Id.


         After entry of the judgement, ECF No. [45], Mr. Depack has filed several motions, ECF Nos. [46], [50], [54], [62], [66], [67], [72], [76]. [77], & [78], two notices of appeal, ECF Nos. [47] & [61], and a writ of mandamus, ECF No. [74]. These motions included eight motions seeking, in sum, return of three cell phones, personal clothing, a $30 phone card, and $513.10 in cash ("the Cash") that were in Mr. Depack's possession when he was arrested in connection with the underlying criminal case on April 12, 2017.[1] Id. The Government also filed a notice of cross-appeal[2] and a motion to turn over the Cash to the Clerk of Court so that it could be applied towards Mr. Depack's outstanding $394, 143.21 restitution order. ECF Nos. [51] & [59] ("Turn Over Motion").

         On February 28, 2019, the Court ordered the Cash be turned over to the Clerk of Court. ECF No. [60] ("Turn Over Order"). Defendant immediately appealed the Turn Over Order arguing that the Court had failed to provide him with opportunity to be heard. 3d Circ. No. 19-1553. Simultaneously, he also filed another motion for return of the Cash before this Court. See ECF No. [61]. Motion practice ensued at the Third Circuit, and the appeal was stayed and later procedurally dismissed based on Defendant's parallel filings related to the return of the Cash in this Court. See 3d Circ. No. 19-1553. While the Third Circuit appeal was pending, Defendant filed two additional motions for return of property. ECF Nos. [66] and [67].

         By way of written opinion dated April 22, 2019, the Court addressed the first five motions for return of property and the Government's related filings. Agreeing with Defendant's argument that the Court should provide him an opportunity to be heard on the Government's Turn Over Motion, the Court denied the Government's request to construe Mr. Depack's successive motions for return of property as motions for reconsideration and vacated the Turn Over Order. ECF No. [68]. The Court further denied without prejudice Mr. Depack's motions for return of property, denied the other relief Mr. Depack requested in his motions without prejudice, and set a briefing schedule for the Turn Over Motion.

         In early May, Mr. Depack filed an opposition to the Turn Over Motion, and the Government filed a reply. ECF Nos. [70] and [73]. Defendant also filed a Motion to Modify the Conditions of Supervised Release, three additional motions for return of property, and a motion for a "status update" on his motions. ECF No. [72], [76], [78].

         While the Turn Over Motion was pending, on May 24, 2019, Defendant filed a writ of mandamus challenging whether the undersigned should continue to preside over this case. ECF No. [74]. The Court accordingly stayed all pending motions pending disposition of the writ of mandamus. ECF No. [75]. On July 1, 2019, Defendant filed a Motion to Withdraw the Writ of Mandamus, ECF No. [77], which was ultimately forwarded to Third Circuit and granted by the Circuit. The Court now addresses the pending motions.


         A. Arguments ...

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