United States v. Wallace , 213 F. App'x 98 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-11-2007
USA v. Wallace
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1323
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CLD-68
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1323
________________
UNITED STATES OF AMERICA
v.
CLARENCE WALLACE,
Appellant
_______________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Criminal No. 02-cr-00197)
District Judge: Honorable R. Barclay Surrick
___________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
November 30, 2006
Before: RENDELL, SMITH and COWEN, Circuit Judges.
(Filed: January 11, 2007)
______________
OPINION OF THE COURT
_____________
PER CURIAM
Clarence Wallace appeals from the District Court’s order disposing of his post-trial
motion for return of property. Because we determine that the appeal is lacking in
arguable legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).
Wallace was arrested by agents from the Federal Bureau of Investigation on March
6, 2002. During the arrest, the agents seized Wallace’s Bulova watch and $2,153 in cash.
Wallace was eventually convicted by a jury of conspiracy to commit armed bank robbery,
two counts of armed bank robbery, two counts of brandishing a firearm, and being a felon
in possession of a firearm. In addition to a 960-month prison sentence, Wallace was
ordered to pay $25,968 in restitution to the two victim banks. United States v. Wallace,
135 Fed. Appx. 527, 527 (3d Cir. 2005).
After he was convicted, Wallace filed a motion, under FED. R. CRIM. P. 41(g)
(formerly Rule 41(e)), to return the property that had been seized during his arrest.
Approximately two years later, the government responded to the motion. The District
Court ordered the government to return the Bulova watch, but allowed it to retain the cash
that it had seized. Wallace appealed.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. A motion for the
return of property under FED. R. CRIM P. 41(g) may be made after the termination of
criminal proceedings, and is treated as a civil proceeding for equitable relief. United
States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999). We review the District Court’s
decision for abuse of discretion. Id.
Having granted Wallace leave to proceed in forma pauperis on appeal, we must
now determine whether his appeal should be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B). An appeal may be dismissed under § 1915(e)(2)(B) if it has no arguable
basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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Although property seized by the government as part of a criminal investigation
generally must be returned once criminal proceedings have concluded, a defendant has no
right to the return of his property if the government has a continuing interest in the
property, such as in a forfeiture action or an outstanding lien. United States v. Premises
Known as 608 Taylor Ave., Apartment 302, 584 F.2d 1297, 1302 (3d Cir. 1978); see also
United States v. Albinson, 356 F.3d 278, 280 (3d Cir. 2004); Chambers, 192 F.3d at 376.
The order of restitution in Wallace’s case constitutes a lien in favor of the United States
on all of his property. See 18 U.S.C. § 3613(c);1 Lavin v. United States, 299 F.3d 123,
127 (2d Cir. 2002). Because the money that Wallace wants returned is subject to a lien
under a valid order of restitution, he is not entitled to its return. See United States v.
Mills, 991 F.2d 609, 612 (9th Cir. 1993)(“[A] valid restitution order under the VWPA
gives the government a sufficient cognizable claim to defeat a defendant’s Rule 41(e)
motion for return of property, if that property is needed to satisfy the terms of the
restitution order.”) Rather, the government may use the cash seized from Wallace to
1
18 U.S.C. § 3613(c) provides in relevant part:
[A]n order of restitution made pursuant to section[ ] . . . 3663 . . . is a lien in favor
of the United States on all property and rights to property of the person fined as if
the liability of the person fined were a liability for a tax assessed under the Internal
Revenue Code of 1986. The lien arises on the entry of judgment and continues for
20 years or until the liability is satisfied, remitted, set aside, or is terminated under
subsection (b).
(citation omitted).
3
satisfy the restitution order.
In sum, we readily conclude that the District Court correctly denied Wallace’s
motion for return of the $2,153 that was seized when he was arrested. Because his appeal
lacks merit, we will dismiss it under § 1915(e)(2)(B).
4