United States v. Brome , 646 F. App'x 70 ( 2016 )

13-4008-cr
United States of America v. Brome
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
20th day of April, two thousand sixteen.
Present: ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 13-4008-cr
ANTONIO COBB, AKA TONE, AKA TONY, AKA CHARGER,
RICHARD CREGO, AKA RICK, THOMAS HORTON, AKA
TOMMY, AKA TUNA, PEDRO KLINE, MELINDA CRUZ, AKA
MINDY, PATRICK FRANK,
Defendants,
v.
JAMES BROME, AKA TROUBLE, B,
Defendant-Appellant.
_____________________________________________________
Appearing for Appellant: Steven Y. Yurowitz, New York, NY.
Appearing for Appellee: Monica J. Richards, Assistant United States Attorney, for William
J. Hochul, Jr., United States Attorney for the Western District of
New York, Buffalo, NY.
Appeal from the United States District Court for the Western District of New York
(Siragusa, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is VACATED, and the
case is REMANDED.
Appellant James Brome appeals from the October 4, 2013 order of the district court for
the Western District of New York (Siragusa, J.), denying his petition for the return of his
property pursuant to Federal Rule of Criminal Procedure 41(g). We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.
On September 12, 2010, Brome and his girlfriend were pulled over by the Lyons Police
Department for a traffic violation. The officer ran their identifications and learned that neither
had an active driver’s license. An officer patted Brome down and discovered $21,019 in cash in
his pockets. The officer seized the money and gave Brome a receipt. Several weeks later, Brome
was arrested after engaging in a narcotics transaction in the presence of an agent from the Drug
Enforcement Administration (“DEA”) and other state and local law enforcement. He was
indicted federally, and ultimately pleaded guilty to one count of conspiracy to possess with intent
to distribute, and to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. § 846.
Brome was sentenced to 204 months’ imprisonment.
On September 23, 2013, following the entry of a judgment of conviction against Brome
in his criminal case and his sentencing, Brome filed a pro se “petition for the return of illegally
seized property pursuant to Federal Rules of Criminal Procedure Rule § 41(g).” App’x at 186.
Brome argued that the cash was illegally seized. He also stated that he “has [written] not less
than three-(3) letters asking for the return of money seized on September 12, 2010,” and that “all
letters have gone unanswered to date.” App’x at 189. The next relevant entry on the docket is the
district court’s ruling on Brome’s motion. On October 4, 2013, the district court wrote a letter to
Brome, denying his motion, which states:
I am in receipt of your “Petition for the Return of Illegally Seized Property
Pursuant to Federal Rules of Criminal Procedure Rule § 41(g)”. I have been
advised by the United States Attorney’s Office that the $[21,019]1 cash was
administratively forfeited by the DEA on February 25, 2011. Therefore, your
petition is denied.
App’x at 196.
1
The district court and government incorrectly refer to the amount of cash forfeited as $21,109.
2
On appeal, the government states that the district court “denied [Brome’s] petition . . .
based on the fact that the funds had been administratively forfeited by the DEA” “[w]ithout
directing a written response from the government.” Appellee Br. at 5. However, upon order from
this Court, the government submitted email correspondence between the Assistant United States
Attorney (“AUSA”) then working on this case and the judicial assistant to the district court. On
October 4, 2013, the judicial assistant emailed the AUSA, “Judge Siragusa asked that I check
with you re status of returned property for Mr. Brome. He has filed a petition for the return of the
property.” Dkt. No. 78, at 2. The same day, the AUSA responded, “The $21,019 cash Brome
seeks the return of was administratively forfeited by the DEA on February 25, 2011.” Dkt. No.
78, at 2.
It is true that, as the government argues, the general rule is that “a federal court lacks
jurisdiction to review the merits of administrative forfeiture decisions once the administrative
process has begun.” U.S. (Drug Enf’t Agency) v. One 1987 Jeep Wrangler Auto. VIN No.
2BCCL8132HBS12835, 972 F.2d 472, 480 (2d Cir. 1992). However, even when property has
been administratively forfeited, federal courts have jurisdiction to “determin[e] whether the
agency followed the proper procedural safeguards when it declared [claimant’s] property
summarily forfeited.” Id. (second alteration in original) (internal quotation marks omitted). See
also Polanco v. DEA, 158 F.3d 647, 651 (2d Cir. 1998); Boero v. DEA, 111 F.3d 301, 304-05 (2d
Cir. 1997). The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), 18 U.S.C. § 983, now
provides “the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil
forfeiture statute,” id. § 983(e)(5), and explicitly permits the court to consider only the issue of
adequate notice, id. § 983(e)(1).
Though Brome did not file a complaint under CAFRA, and instead filed a motion under
Rule 41(g), the government concedes that this was not fatal to the district court’s jurisdiction
given that Brome was pro se at the time. The government argues only that Brome’s failure to
“assert a lack of notice claim in the district court” ensured that his petition failed to confer
jurisdiction on the district court. See Appellee Br. at 1. Though Brome’s petition was hardly clear
in making a notice argument, we conclude that the petition, in reciting the relevant facts, did
include an allegation—whether ultimately proved correct or otherwise—that Brome never
received notice of the forfeiture. See App’x at 189 (stating that Brome “has [written] not less
than three-(3) letters asking for the return of money seized on September 12, 2010” and that “all
letters have gone unanswered to date”). In light of the fact that the district court denied the
motion without either the court or the government first notifying Brome—in the context of this
proceeding—of the administrative forfeiture, thus potentially providing Brome an opportunity to
respond, we also conclude that these statements sufficiently raised a notice challenge under the
liberal construal standards for pro se parties. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A
document filed pro se is to be liberally construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]”
(citation and internal quotation marks omitted)).
We therefore vacate the district court’s ruling on Brome’s Rule 41(g) motion. On
remand, the district court shall determine in the first instance the sufficiency of the notice in
connection with the administrative forfeiture.
3
We have considered the remainder of Brome’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is VACATED, and this case is
REMANDED for proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4