United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
MATTER comes before the Court upon the
Government's Turn Over Motion, ECF No. , filed on
February 25, 2019. Also before the Court are Defendant's
Motion to Modify Conditions of Supervised Release, ECF No.
; Motion Pursuant to Rule 41(g), ECF No. ; and Motion
to Withdraw, ECF No. . The Court is further in receipt of
two letters from Defendant, which the Court construes as
Motions for Return of Property. ECF Nos.  & .
After careful review, for the reasons set forth below the
Court GRANTS the Turn Over Order, ECF No.
, and GRANTS Defendant's request for
a copy of his docket sheet and DENIES the
remainder of Defendant's Motions.
PROCEDURAL BACKGROUND OF THE UNDERLYING CRIMINAL
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. . On February 15, 2018, Defendant signed a
plea agreement, ECF No. , as to that single count.
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.  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.
November 1, 2018, the Court sentenced Mr. Depack to
forty-five months incarceration and three years of supervised
release. ECF Nos.  & . The Court further ordered
restitution in the amount of $394, 143.21 and the payment of
a special assessment of $100. Id.
POST-JUDGEMENT MOTION PRACTICE
entry of the judgement, ECF No. , Mr. Depack has filed
several motions, ECF Nos. , , , , , ,
, . , & , two notices of appeal, ECF Nos.
 & , and a writ of mandamus, ECF No. . 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. Id. The Government also filed a
notice of cross-appeal 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.  &  ("Turn Over Motion").
February 28, 2019, the Court ordered the Cash be turned over
to the Clerk of Court. ECF No.  ("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. . 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.  and
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. . 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
early May, Mr. Depack filed an opposition to the Turn Over
Motion, and the Government filed a reply. ECF Nos.  and
. 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. , , .
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. . The
Court accordingly stayed all pending motions pending
disposition of the writ of mandamus. ECF No. . On July 1,
2019, Defendant filed a Motion to Withdraw the Writ of
Mandamus, ECF No. , which was ultimately forwarded to
Third Circuit and granted by the Circuit. The Court now
addresses the pending motions.
THE CROSS-MOTIONS TO TURN OVER OR RETURN THE CASH