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United States v. Sewell

United States District Court, Middle District of Alabama, Northern Division

July 14, 2014

UNITED STATES OF AMERICA
v.
TIMOTHY JEVON SEWELL

RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER CHIEF UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

On September 10, 2013, defendant Timothy Jevon Sewell (“Sewell”) filed a pro se “Motion for the Return of Seized Property” (Doc. No. 109) seeking the return of property that agents with the United States Drug Enforcement Administration (“DEA”) seized from his residence during execution of a search warrant and his arrest on drug-trafficking charges in October 2003. In a document filed on November 14, 2013 (Doc. No. 119), Sewell clarified that he is proceeding under Fed.R.Crim.P. 41(g) and is seeking the return of two automobiles; approximately $6, 500 in United States currency; items of jewelry worth approximately $12, 500; a video observation system; and “an assortment of miscellaneous other items.” See Doc. No. 119 at 1-2. He contends that “the Government hasn’t shown per the law a legitimate reason why [his] property shouldn’t be returned, thus making the continued confiscation of [his] property illegal, unethical, and unconstitutional.” Id. at 3.

The Government answers that some of the items sought by Sewell – specifically, jewelry and the video observation system – were not seized by DEA agents during his arrest, that a smaller amount of currency than alleged by Sewell was seized, and that the seized automobiles and currency were administratively forfeited by the DEA. Doc. Nos. 116 & 122. The Government asserts that, where Sewell’s motion for the return of property seeks relief under Fed.R.Crim.P 41(g), review of the DEA’s administrative forfeiture decision is beyond this court’s jurisdiction and that Sewell has demonstrated no other basis for relief. Id. For the reasons that now follow, the court finds Sewell is not entitled to any relief.

II. FACTS AND PROCEDURAL HISTORY

During September and October of 2003, agents with the DEA received information implicating Sewell in distributing large amounts of methamphetamine in the Montgomery, Alabama, area. Doc. No. 95 at 5-6. On October 21, 2003, DEA agents, assisted by city police officers, executed a warrant to search Sewell’s Montgomery residence. Doc. No. 122-1 (Gov. Ex. A) at 1. Agents seized 21 grams of ice methamphetamine during the search. Doc. No. 95 at 6-8. According to the inventory list in the DEA’s case file, agents also seized two automobiles (Sewell’s 1998 Cadillac DeVille and 1994 BMW 318i), several firearms, $3, 340 in United States currency, digital scales, and miscellaneous documents, photographs, and computer discs. Doc. No. 122-1 (Gov. Ex. A) at 1-2.

On October 29, 2003, a federal grand jury in the Middle District of Alabama indicted Sewell on charges of conspiracy to possess with intent to distribute methamphetamine, possession with intent to distribute methamphetamine, possession of firearms in furtherance of drug-trafficking crimes, and possession of a firearms by a convicted felon. Doc. No. 14.

In November and December of 2003, by certified mail, the DEA sent notices of seizure regarding the two automobiles and the currency seized from Sewell’s residence to Sewell, in the Montgomery City Jail, and to his attorney, Terry W. Travis, at his Montgomery law office. See Doc. No. 126-1 (Ex. A); Doc. No. 126-2 (Ex. B); Doc. No. 126-3 (Ex. C). Although unsuccessful, notice was also sent to Sewell’s Montgomery home address. See Doc. No. 122 at 2. All notices contained instructions on contesting a forfeiture action and stated the last date to file a claim regarding the seized currency was December 29, 2003, and the last date to file a claim regarding the two automobiles was January 16, 2004. See Doc. No. 126-1 (Ex. A); Doc. No. 126-2 (Ex. B); Doc. No. 126-3 (Ex. C). Receiving no claims from Sewell, the DEA administratively forfeited the automobiles and currency in February and March of 2004. Doc. No. 122-1 (Ex. A) at 1-2.

On June 10, 2004, a jury found Sewell guilty of conspiracy to possess with intent to distribute methamphetamine, possession with intent to distribute methamphetamine, and possession of a firearm by a convicted felon.[1] Doc. No. 67. On October 21, 2005, he was sentenced to 250 months in prison. Doc. No. 90.

Sewell filed his motion for the return of property on September 10, 2013. Doc. No. 109.

III. DISCUSSION

Proceeding under Fed.R.Crim.P. 41(g), [2] Sewell seeks the return of the two automobiles and currency seized during his 2003 arrest, and a video observation system, items of jewelry, and miscellaneous other items he says were also seized. Doc. No. 109; Doc. No. 119 at 1-3.

As noted above, the automobiles and currency[3] seized during Sewell’s arrest were administratively forfeited by the DEA. Rule 41(g) provides that a person aggrieved by an unlawful search and seizure may move for return of the property on the ground that such person is entitled to lawful possession of the property. Fed.R.Crim.P. 41(g). However, a defendant cannot use the criminal procedure device of Rule 41(g) to seek relief from a civil forfeiture proceeding. United States v. Artis, 172 Fed.App’x 309, 311 (11th Cir. 2006). See also, e.g., United States v. Quezada, 439 Fed.App’x 824, 827 (11th Cir. 2011), citing United States v. Eubanks, 169 F.3d 672, 674 (11th Cir. 1999) (discussing former Rule 41(e), which now is in Rule 41(g), and holding a “[Rule 41(g)] motion is unavailable ... when property is retained pursuant to civil forfeiture instead of for use as evidence”); Fed.R.Crim.P. 1(a)(5)(B) (stating that the Federal Rules of Criminal Procedure do not apply to a civil property forfeiture for violation of a federal statute). Because the automobiles and currency seized during Sewell’s arrest were administratively forfeited, his claims seeking the return of this property are not properly raised under Rule 41(g).

In an affidavit addressing Sewell’s motion for the return of property, DEA Special Agent Thomas Neill Thompson avers that the DEA’s case file and Report of Investigation regarding Sewell’s 2003 arrest do not mention the seizure of any items of jewelry or a video observation system from Sewell’s residence. Doc. No. 122-1 (Gov. Ex. A) at 1. With his affidavit, Thompson submits the inventory list in the DEA’s case file, which, consistent with Thompson’s representations, contains no mention of the seizure of jewelry or a video observation system from Sewell’s residence. Id. at 2. Sewell fails ...


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