Luis Mora v. United States, 955 F.2d 156, 2d Cir. (1992)

955 F.
2d 156
Luis MORA, Plaintiff-Appellant,

v.
UNITED STATES of America, Defendant-Appellee.
No. 318, Docket 91-2225.
United States Court of Appeals,

Second Circuit.
Submitted Nov. 8, 1991.
Decided Jan. 22, 1992.
Luis Mora, pro se.

Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Jason Brown,
Eric Corngold, Asst. U.S. Attys., of counsel), for appellee.
Before KAUFMAN, CARDAMONE and MINER, Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal asks what happens when personal property taken from an arrested
person by the government turns out to be missing. Perhaps taking the adage that
"no one can lose that which he never had" the government turns it into "no one
can return that which he has lost," and argues that it cannot therefore be called
upon to return the prisoner's property. Of course, what is lost is gone, but that
circumstance does not answer the question of what should happen if that loss is
a result of the government's lack of care.
Luis Mora, pro se and in forma pauperis, appeals from an order of the United
States District Court for the Eastern District of New York (Glasser, J.) denying
his petition for the return of seized property that was construed by the court as a
motion pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure.
BACKGROUND AND PRIOR PROCEEDINGS

3
Appellant was arrested on February 14, 1988 for violating federal drug laws.
He pleaded guilty in the same federal court from which this appeal arises, was
sentenced by Judge Glasser, and is currently incarcerated. At the time of the

arrest, Drug Enforcement Administration (DEA) agents seized a number of
articles of personal property from appellant's hotel room, including $900 in
American currency, his passport, an airline ticket from the United States to
Ecuador, clothing, jewelry, books and other miscellaneous items. The
government does not contend that any of these items have evidentiary value or
constitute contraband or the fruit of any illegal activity. Five months later Mora
sent a letter dated July 26, 1988 to an Assistant United States Attorney (AUSA)
in the Eastern District of New York, listing in detail the personal property
seized and requesting its return. This letter went unanswered.
4
Mora then filed in the district court a document styled as a petition for a "Writ
of Reprieve" seeking the return of his property. In an order filed January 3,
1991 the district court characterized the petition as a motion pursuant to
Fed.R.Crim.P. 41(e) and directed the government to file responsive papers. The
government asserted by letter that Mora's petition was untimely because Rule
41(e)--while not stating so expressly--clearly contemplates a motion for return
of property prior to conviction. The government noted further that even if the
Rule 41(e) motion was timely, appellant's petition should be denied because it
no longer had possession of his property. The AUSA stated that he had spoken
with a DEA special agent who "advised that a female relative of [Mora's] codefendant Granda appeared at his office within a week of Mora's arrest, and
that he recalls giving various of the personal property items now requested to
her at that time." The AUSA also asserted he had spoken with another special
agent who "independently reviewed the case files, and indicate[d] that none of
the requested items [were] in the DEA's possession."
In an order filed February 7, 1991 the district court adopted the government's
interpretation of Rule 41(e) and denied Mora's petition as untimely. Mora filed
a motion for reconsideration, urging that, given his pro se status the district
court should have construed his petition liberally as "one that seeks relief on
any possible basis, and not merely Rule 41(e) of the Federal Rules of Criminal
Procedure." On April 2, 1991 the trial court denied this motion ruling that,
regardless of the basis sought for relief, "[t]he court cannot direct the
government to return property which it doesn't have." Mora filed a timely
notice of appeal from this order.DISCUSSION
A. Rule 41(e)
6
With regard to seized property, Rule 41(e) is designed to accomplish two

objectives: the return of the property to its owner and, where criminal
proceedings have been initiated, the suppression of illegally seized property as
evidence. It states
7 person aggrieved by an unlawful search and seizure or by the deprivation of
[a]
property may move the district court for the district in which the property was seized
for the return of the property on the ground that such person is entitled to lawful
possession of the property. The court shall receive evidence on any issue of fact
necessary to the decision of the motion. If the motion is granted, the property shall
be returned to the movant, although reasonable conditions may be imposed to protect
access and use of the property in subsequent proceedings. If a motion for return of
property is made or comes on for hearing in the district of trial after an indictment or
information is filed, it shall be treated also as a motion to suppress under Rule 12.
8
Fed.R.Crim.P. 41(e). In its initial opinion the trial court decided the
requirements of Fed.R.Crim.P. 12 applied and, because the motion was not
made prior to Mora's trial, that it was untimely filed under Rule 12(b). On
reconsideration it recognized, as does the government on appeal, that it had
jurisdiction--ancillary to its jurisdiction over the criminal case--to decide this
post-trial motion for the return of seized property. See United States v. Wilson,
540 F.2d 1100, 1103 (D.C.Cir.1976) ("the district court has both the jurisdiction
and duty to return [seized] property"); United States v. LaFatch, 565 F.2d 81,
83 (6th Cir.1977); United States v. Palmer, 565 F.2d 1063, 1064 (9th Cir.1977).
In addition, where no criminal proceedings against the movant are pending or
have transpired, a motion for the return of property is "treated as [a] civil
equitable proceeding[ ] even if styled as being pursuant to Fed.R.Crim.P.
41(e)." United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir.1987); see
also Mr. Lucky Messenger Service, Inc. v. United States, 587 F.2d 15, 16-17
(7th Cir.1978); Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir.1975).
We presume the DEA keeps some sort of record of the property it seizes and
stores. Department of Justice regulations provide:
10
Each bureau shall be responsible for establishing and maintaining inventory

records of its seized personal property to ensure that:
11
(a) The date the property was seized is recorded;
12
(b) All of the property associated with a case is recorded together under the
case name and number;
13
(c) The location of storage of the property is recorded;
14
(d) A well documented chain of custody is kept; and
15
(e) All information in the inventory records is accurate and current.
16
41 C.F.R. 128-50.101 (1991). In light of the government's own regulation, it

may not so easily brush aside Mora's request for the return of his property
because it cannot be located.
17
The government further declares that "in light of the government's

representation that the property had not been in its custody since February
1988, the [district judge] had to reject Mora's application." We think this selfserving argument should be rejected out of hand. Rule 41(e) itself provides that
"[t]he court shall receive evidence on any issue of fact necessary to the decision
of the motion." Research has revealed no authority for the proposition that a
district judge must rely on a representation, made by the government or any
other litigant for that matter. Instead, in making a determination, a trial court
must rely on the evidence before it.
18
The government failed to offer any evidence concerning the disposition of

Mora's property. No receipts, log entries or other documentation--not even an
affidavit--were presented to support the assertion that it no longer had
possession of appellant's property. Further, the government's "representation"
fails to account for all of the personalty, since the DEA special agent recalls
giving only various of the items to Mora's relative. A finding of whether the
government actually retains possession of Mora's property and, if not, what
happened to it is a necessary predicate to deciding Mora's motion.
B. Mootness
19
The government suggests further in its brief that since it is without possession
of appellant's property his claim is moot. Quite the contrary. Even were it able
to prove its lack of possession, a live controversy still remains, as case law
instructs. In United States v. Francis, 646 F.2d 251, 262-63 (6th Cir.1981), it
was held that a motion for the return of seized money was not moot even
though the DEA had properly turned the money over to the State of Michigan
pursuant to a Warrant of Levy for nonpayment of taxes. The question of
whether the government had lawfully disposed of the property remained. See
Palmer, 565 F.2d at 1065 (motion for return of seized money was not moot
though government had turned money over to bank which movant robbed).
Again, in Martinson, 809 F.2d 1364, the Bureau of Alcohol, Tobacco &
Firearms seized several antique rifles from Martinson, a gunsmith and gun
collector. After abandoning its investigation of Martinson, the Bureau refused

to return his rifles. During the pendency of Martinson's appeal of the denial of
his Rule 41(e) motion, the Bureau destroyed the rifles. The Ninth Circuit held
the appeal was not moot "[s]o long as the court may order relief responsive to
the wrong alleged." Id. at 1368. "[The court's] jurisdiction has not been mooted
by the actions of the government in destroying the property sought to be
returned." Id. at 1369.
20
Assuming the property is gone, the question then is what relief may be granted.
Martinson observed that "[w]here a court of equity assumes jurisdiction
because the complaint requires equitable relief, the court has power to award
damages incident to the complaint." Id. at 1367-68; see also Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418-22, 95 S.Ct. 2362, 2372-74, 45 L.Ed.2d 280
(1975); Goldberg v. Medtronic, Inc., 686 F.2d 1219, 1229 (7th Cir.1982);
Walters v. Marathon Oil Co., 642 F.2d 1098, 1100 (7th Cir.1981); Minnis v.
UAW, 531 F.2d 850, 852 (8th Cir.1975). Accordingly, that court held
Martinson was entitled to request money damages. 809 F.2d at 1370. See also
United States v. Farese, No. 80 Cr. 63 (MJL), 1987 WESTLAW 28830, 1987
U.S. Dist. LEXIS 11466 (S.D.N.Y. Dec. 15, 1987) (court ordered the
government to return Farese's property, which among other items included
$3,307.78 in cash, "or a sum equivalent to the current fair market value of any
item(s) not returned," and directed that the cash be returned with interest
"regardless of whether the original currency is found.")
21
The government attempts to distinguish Martinson and Farese because its

inability to return the property here is not a product of willful flouting of the
district court's order. We see no meaningful distinction between the
government's unsupported assertion that a DEA agent recalls giving "various"
of Mora's things to his co-defendant's relative and the government's claim in
Farese that it was having difficulty locating the movant's property. Hence, we
conclude appellant's claim is not moot.
C. Damages
1. In Equity
22
Appellee further insists that Mora is not entitled to damages because he did not
request them in the district court. The reason Mora did not request damages in
his petition for a "Writ of Reprieve" is because the government had not
responded to his July 1988 letter. At that time appellant had no way of knowing
the government no longer had his property. He did not learn that fact until he
received the government's response to his petition.
23
The government contends that it would be improper for the district court to
exercise its equitable jurisdiction to award damages because the Federal Tort
Claims Act, 28 U.S.C. 2671 et seq., provides Mora with an adequate remedy
at law. Yet, Martinson, faced with the same argument, found that "a separate
civil action[ ] is inadequate in light of the time and expense involved,
particularly where the court considering the motion already has jurisdiction
over the matter." 809 F.2d at 1368. Further, when the government gives away,
loses or destroys a prisoner's property, such unilateral conduct on the
government's part does not, as it believes, thereby deprive the court where the
motion for its return is pending of its jurisdiction. Rather, when a court has
asserted its equitable jurisdiction over a matter, it retains that jurisdiction so
long as necessary to afford appropriate relief to the movant. It is, of course, a
basic rule that if Mora has a right to the return of his property under Rule 41(e),
he may not effectively be deprived of a remedy to enforce that right. In Wilson,
540 F.2d 1100, the court approached the question somewhat differently, but
reached the same conclusion. Id. at 1104 (adequate civil remedies do not
discharge the district court's duties nor disturb its jurisdiction).
2. At Law
24
Even if Mora otherwise has an adequate remedy at law, the district court should
have liberally construed Mora's petition as a complaint under the FTCA. See
Kramer v. Secretary, Dep't of the Army, 653 F.2d 726, 729 (2d Cir.1980).
Although that Act does not allow a claim arising out of "the detention of any
goods or merchandise by any officer of customs or excise or any other lawenforcement officer," 28 U.S.C. 2680(c), this exception does not apply where
the goods are no longer in the possession of the government, and therefore
cannot be regarded as being "detained." See Alliance Assurance Co. v. United
States, 252 F.2d 529, 533-34 (2d Cir.1958) ("the exception does not ... bar
actions based on negligent destruction, injury or loss of goods in the possession
or control of the customs authorities").
25
A tort claim must be presented to the appropriate federal agency within two
years after the claim accrues. 28 U.S.C. 2401(b) (1988). Such presentment is
a prerequisite to the institution of a suit under the FTCA. 28 U.S.C. 2675(a)
(1988). Pursuant to Department of Justice regulations, "a claim shall be deemed
to have been presented when a Federal agency receives from a claimant ...
written notification of an incident, accompanied by a claim for money damages
in a sum certain for injury to or loss of property...." 28 C.F.R. 14.2(a) (1991).
26
Mora's July 1988 letter was received by the Department of Justice (the
appropriate agency in this case) well within the two-year limitations period,
which began to run in February 1988 at the earliest. The letter may be said to
have stated a "sum certain," at least with respect to the $900 cash. The
remaining property, while carefully itemized, was not reduced to a sum certain
for the obvious reason that Mora was seeking the return of the items
themselves, not merely their value because, as noted, he was unaware that the
government no longer had them. The FTCA provides that
27
[a]ction
under this section shall not be instituted for any sum in excess of the amount
of the claim presented to the federal agency, except where the increased amount is
based upon newly discovered evidence not reasonably discoverable at the time or
[sic] presenting the claim to the federal agency, or upon allegation and proof of
intervening facts, relating to the amount of the claim.
28
28 U.S.C. 2675(b) (1988) (emphasis added). Because the DEA asserts it gave
away Mora's property a week after his arrest, and that fact was not reasonably
discoverable at the time he sent the letter to the Department of Justice, he
should be allowed to pursue his claim for the value of all of his lost personalty.
29
Moreover, other courts have held that the "sum certain" requirement should not
be applied inflexibly. See, e.g., Erxleben v. United States, 668 F.2d 268, 273
(7th Cir.1981) (per curiam) (FTCA " 'intended to provide a framework
conducive to the administrative settlement of claims, not to provide a basis for a
regulatory checklist which, when not fully observed, permits the termination of
claims regardless of their merits.' Koziol v. United States, 507 F.Supp. 87, 91
(N.D.Ill.1981)"); Crow v. United States, 631 F.2d 28, 30 (5th Cir.1980); Apollo
v. United States, 451 F.Supp. 137, 138-39 & n. 11 (M.D.Pa.1978).
CONCLUSION
30
Whether Mora's petition is treated as a Rule 41(e) motion or a complaint under

the FTCA, the district court should take evidence and make factual findings
determining which of the items Mora seeks, if any, are still in the government's
possession, and the circumstances of its loss of possession. If the government
has Mora's property, it should be returned to him. If it no longer has the
property, the district court must determine whether the government's conduct
renders it liable for damages, either as an equitable remedy or under the FTCA.
31
The order denying Mora's petition is therefore reversed and the case remanded
to the district court for further proceedings in accordance with this opinion.

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955 F.

Luis MORA, Plaintiff-Appellant,

United States Court of Appeals,

Luis Mora, pro se.

BACKGROUND AND PRIOR PROCEEDINGS

sentenced by Judge Glasser, and is currently incarcerated. At the time of the

With regard to seized property, Rule 41(e) is designed to accomplish two

Each bureau shall be responsible for establishing and maintaining inventory

(a) The date the property was seized is recorded;

(c) The location of storage of the property is recorded;

(d) A well documented chain of custody is kept; and

(e) All information in the inventory records is accurate and current.

41 C.F.R. 128-50.101 (1991). In light of the government's own regulation, it

The government further declares that "in light of the government's

The government failed to offer any evidence concerning the disposition of

collector. After abandoning its investigation of Martinson, the Bureau refused

The government attempts to distinguish Martinson and Farese because its

Whether Mora's petition is treated as a Rule 41(e) motion or a complaint under

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