Ford-Bey v. United States ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ISMAEL FORD-BEY,
Plaintiff,
Civil Action No. 19-2039 (BAH)
v.
Chief Judge Beryl A. Howell
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
Plaintiff Ismael Ford-Bey, proceeding pro se, filed a motion in February 2019, pursuant
to Federal Rule of Criminal Procedure 41(g), seeking the return of personal property allegedly
seized from his residence in Washington, D.C. and his girlfriend’s residence in Alexandria,
Virginia, almost seven years earlier in August 2012, by Drug Enforcement Administration
(“DEA”) agents. Pl.’s Mot. for Return of Property (“Pl.’s Mot.”) at 1, ECF No. 1. 1 In response,
the government filed a “Motion to Dismiss and Supplemental Response,” arguing, inter alia, that
the plaintiff’s property had been forfeited, with notice to the plaintiff, as part of his criminal
proceedings in Maryland and through administrative forfeiture by DEA. Gov’t’s Mot. to
Dismiss & Suppl. Resp. (“Gov’t’s MTD”) at 3, ECF No. 18. The motion to dismiss was granted
only with respect to 22 items that were administratively forfeited but denied with respect to 27
additional items that plaintiff alleged were seized but were never forfeited. Ford-Bey v. United
States, Civil Action No. 19-2039 (BAH), 2020 WL 32991, at *10, 13–15 (D.D.C. Jan. 2, 2020).
The government has now filed a “Renewed Motion to Dismiss or, in the Alternative, for
Summary Judgment (“Gov’t’s Mot.”), ECF No. 40, seeking to resolve plaintiff’s remaining
1
The plaintiff’s own spelling of his name is adopted here, although filings associated with his underlying
criminal conviction refer to him as “Ishmael,” rather than “Ismael,” Ford-Bey.
claim for equitable relief in the form of the return of the 27 missing items that he alleges were
seized from his apartment. The government has now presented sufficient evidence to support its
assertion that the property in question is not in its possession (nor was ever seized), and plaintiff
has provided no evidence to the contrary. The government’s motion for summary judgment is
therefore granted.
I. BACKGROUND
This action centers around the several searches related to plaintiff and the seizure of a
number of plaintiff’s possessions during the investigation of a large drug distribution conspiracy.
The events surrounding plaintiff’s arrest, the seizure of his property, and forfeiture proceedings
are described in detail in this Court’s earlier opinion, Ford-Bey, 2020 WL 32991, at *1–6, and
will only be briefly described here, along with the procedural history, focusing on the
circumstances relevant to the remaining 27 items still at issue.
A. Factual Background
During an August 15, 2012 traffic stop in Texas, the Texas Department of Public Safety
conducted a search of a refrigerated box truck. Gov’t’s Notice of Suppl. Exs. in Supp. of Mot. to
Dismiss, Ex. 1 (“Gov’t’s Suppl. Exs.”) at 8, ECF No. 21-1. That search revealed that the truck
was hauling multiple kilograms of cocaine to Prince George’s County, Maryland. Id. The truck
was allowed to continue on its way. Id. Upon arrival in Maryland, on August 17, 2012, the
truck was met by the plaintiff, who was observed by law enforcement unloading the cocaine into
his car. Id. As law enforcement moved to intercept, the plaintiff drove on, setting off a high-
speed chase. Id. After crashing his car into a median strip, the plaintiff successfully fled on foot.
Id. Law enforcement at the scene recovered “13 boxes of suspected cocaine” from his car. Id.
1. Seizures
2
That same day, DEA agents obtained state search warrants for both the plaintiff’s
residence in Washington, D.C., and his girlfriend’s apartment in Alexandria, Virginia. Id. at 8,
19. Upon executing those warrants, the agents seized a number of valuable items, including at
least one luxury vehicle, watches, assorted pieces of jewelry and handbags. See Pl.’s Mem. of
Points and Auths. in Support of Mot. to Return Property (“Pl.’s Mem.”) at 2, 5, ECF No. 1-1;
Gov’t’s Mot., Ex. A (“Seizure List”) at 2–3, ECF No. 40-2; Gov’t’s Mot., Ex. B (“DEA Reports
of Investigation” (“ROI”)) at 12–15, 19–25, ECF No. 40-3.
2. Administrative Forfeiture and Criminal Proceedings
Although the plaintiff was not yet in custody, DEA initiated procedures to forfeit the
seized items. See, e.g., Gov’t’s Suppl. Exs. at 2–31. Under those procedures, DEA assigned
separate case numbers to the various items, based apparently in part on the location where the
items were seized. See Gov’t’s Reply in Support of Mot. to Dismiss and Resp. to the Court’s
September 17, 2019 Order (“Gov’t’s Reply Supp. MTD”), Att. 1, Declaration of Acting
Forfeiture Counsel of DEA David A. Zekoski and Exs. 1–48 at 2, ECF No. 29-1. The items
seized, on August 17 and 18, 2012, from two different locations included: (1) assorted watches
and jewelry valued at $173,900, seized from Ford-Bey’s apartment in Washington, D.C., id. at
16–17, 37–39, and (2) assorted watches and jewelry valued at $22,400, seized from Ford-Bey’s
girlfriend’s apartment in Alexandria, Virginia, id. at 48–49.
DEA declared the property forfeited in three separate declarations of forfeiture. Id. at
75–76 (Decl. of Forfeiture, dated February 21, 2013, forfeiting the items seized from the
plaintiff’s girlfriend’s apartment); id. at 106 (Decl. of Forfeiture, dated February 26, 2013,
forfeiting the plaintiff’s car); id. at 37–39 (Decl. of Forfeiture, dated March 22, 2013, forfeiting
the items seized from the plaintiff’s D.C. apartment). According to the government, the forfeited
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property has been sold or liquidated. See Gov’t’s Reply Supp. MTD, Ex. III (“DEA Property
Tracking Chart”) at 1–5, ECF No. 29-4.
Following his arrest on August 16, 2013, plaintiff was charged, on February 24, 2014, in
a superseding indictment in the U.S. District Court for the District of Maryland, with conspiracy
to distribute narcotics and conspiracy to commit money laundering. See Superseding Indictment,
United States v. Ford-Bey, No. 13-cr-492-DKC (D. Md. Feb. 24, 2014), ECF No. 24. The
superseding indictment included a criminal forfeiture allegation giving notice, pursuant to
Federal Rule of Criminal Procedure 32.2, that if he and his three co-defendants were convicted,
the government would seek forfeiture of property derived from, involved in, or traceable to the
charged narcotics and money laundering offenses. See Superseding Indictment at 18–23. This
property included, among other things, $185,000 in assorted jewelry, id. at 19, 21, and $24,565
in assorted clothing items, id. at 20–21.
On December 1, 2014, the same day the plaintiff pleaded guilty, the judge presiding over
his criminal case issued a Preliminary Order of Forfeiture against the plaintiff. See Gov’t’s
MTD, Ex. C (“Order of Forfeiture”) at 37–40, ECF No. 18-1. Upon entry of the order, the
government was “authorized to seize the forfeited property” and to “commence any applicable
proceeding to comply with statutes governing third party rights, including giving notice of this
Order.” Id. at 39–40. Further, the government was directed to “publish notice of this Order in
accordance with 21 U.S.C. § 853(n)(1).” Id. The Order would become final at the time of
sentencing. Id. 2
2
Plaintiff was sentenced to 396 months of incarceration, followed by 10 years of supervised release. See
Judgment & Conviction at 3–4, Ford-Bey, No. 13-cr-492-DKC (D. Md. June 5, 2015), ECF No. 179. The
preliminary forfeiture order became final that day and was attached to the defendant’s Judgment and Conviction
Order. See id., Att. 1, Order of Forfeiture at 1–4, ECF No. 179-1; Transcript of Sentencing Hearing at 130:24–
131:8, Ford-Bey, No. 13-cr-492-DKC (D. Md. June 4, 2015), ECF No. 222. The government’s sentencing
memorandum referenced the administrative forfeiture proceedings, which had concluded prior to the plaintiff’s
arrest, and informed him that DEA had administratively forfeited certain property that was seized from him. Gov’t’s
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B. Procedural Background
On February 19, 2019, plaintiff filed a “Motion for Return of Property Pursuant to
F.R.C.P. Rule 41(g).” Pl.’s Mot. at 1. An “Exhibits List” attached to the motion listed 49 items
he says were seized during the searches of his apartment and that of his girlfriend. Pl.’s Mot.,
Att. 2, Exhibits List in Support of Rule 41(g) Mot. (“Pl.’s List”), ECF No. 1-2. Plaintiff sought
the return of these 49 items, which he alleged were seized as part of an unlawful search and
seizure and were then forfeited without notice, or simply seized without being forfeited. Pl.’s
Mem. at 4–5.
The government filed a “Motion to Dismiss and Supplemental Response to its Opposition
to Plaintiff’s Fed. R. Crim. P. 41(g) Motion,” Gov’t’s Mot. at 1, and then, when ordered to
produce a fuller record, made supplemental filings showing that DEA had seized, forfeited, and
sold or liquidated only 22 of the items on plaintiff’s Exhibits List. DEA Property Tracking Chart
at 1–5. The government declared that it did “not have sufficient information or no information
whatsoever for twenty-seven items on Plaintiff’s ‘Exhibit[s] List.’” Gov’t’s Reply Supp. MTD
at 10.
The Court construed plaintiff’s motion as one to set aside the forfeiture of the 22 items
that had been subject to administrative forfeiture and as a civil complaint requesting the return of
the additional 27 items. Ford-Bey, 2020 WL 32991, at *7–8. The government’s motion was
granted with respect to the 22 forfeited items on plaintiff’s list because plaintiff’s motion to set
aside the forfeiture fell outside the applicable five-year statute of limitations. Id. at *9–10. The
Reply Supp. MTD, Ex. V (“Gov’t’s Sentencing Mem.”) at 30, ECF No. 29-6 (explaining that certain “high value
assets . . . were seized and forfeited by the DEA” after “[n]o claims were filed regarding the seized property and all
forfeitures were completed”). In 2016, the plaintiff’s sentence was vacated by the Fourth Circuit, which held that a
firearm enhancement had been improperly applied, United States v. Ford-Bey, 657 F. App’x 219, 220–22 (4th Cir.
2016) (per curiam), but on remand, the same final forfeiture order was attached to this amended judgment, see
Amend. Judgment & Conviction, Ford-Bey, No. 13-cr-492-DKC (D. Md. Jan. 31, 2017), Att. 1, Order of Forfeiture
at 1–4, ECF No. 401-1.
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government’s motion was denied, however, with respect to the 27 missing items not subject to
forfeiture. The government contended that, because the plaintiff “fail[ed] to provide any
evidence whatsoever that the forty-nine items on the ‘Exhibit[s] List’ actually belonged to him”
or “that he legitimately obtained those items and that they were not proceeds of his narcotics and
money laundering activities,” his motion, when construed as a civil complaint, must fail as a
matter of law. Gov’t’s Reply Supp. MTD at 2. The complaint alleged, however, that the
property in question was “lawfully obtained,” was seized by the government, and might still be
in the government’s possession. Pl.’s Mem. at 3. Given the procedural posture, the government
failed to show why the complaint requesting return of 27 claimed items was legally deficient to
state a claim, so the motion to dismiss was denied with respect to those items. Ford-Bey, 2020
WL 32991, at *13.
Simply put, the government had failed to provide evidence to support its assertion that
the items described by plaintiff had not been seized as he alleged. For example, the government
did not provide the relevant search warrant returns. See D.C. SUPERIOR COURT CRIM. R. 41(f)(5)
(“An officer executing a search warrant must write and subscribe an inventory setting forth the
property or person seized under it.”); VA. CODE ANN. § 19.2-57 (West 2008) (“The officer who
seizes any property [pursuant to a search warrant] shall prepare an inventory thereof, under
oath.”). Nor did it submit reports of investigation indicating the items seized in the searches or
any sworn affidavit that the government no longer or never did possess the 27 items that were
not forfeited.
These remaining 27 items that plaintiff alleges to be in the government’s possession are:
[#12.] Bulgari (yellow gold with black strap);
[#22.] Yellow Gold Necklace with Louis Vuitton Diamond Charm;
[#23.] Rose Gold Necklace with Dog Tags;
[#26.] Stainless Steel & Black Hermes Cufflinks;
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[#27.] Cherrywood Ralph Lauren Cherrywood Bar;
[#28.] Versace Plates, Champagne Glasses & Silverware;
[#29.] White Llama Rug;
[#30.] Louis the 13th (1 bottle);
[#31.] Vintage Magnum Bottle of Cristal;
[#32.] Gucci Full Length Fur Coat;
[#33.] Gucci Tuxedo;
[#34.] Ralph Lauren Chocolate Tuxedo;
[#35.] Ralph Lauren three-piece cashmere suit;
[#36.] Ralph Lauren three-piece gray suit;
[#37.] Ralph Lauren two-piece blue suit;
[#38.] Ralph Lauren pink blazer with gold buttons;
[#39.] Ralph Lauren crocodile loafers (4 pairs);
[#40.] Louis Vuitton silk baseball jacket (brown);
[#41.] Louis Vuitton silk baseball jacket (blue & red);
[#42.] Louis Vuitton crocodile loafers (2 pairs);
[#43.] Black leather winter bomber jacket;
[#44.] Blue leather Gucci jacket;
[#45.] Red/Orange leather Gucci jacket;
[#46.] White leather Gucci jacket;
[#47.] Purple Label blue leather Ralph Lauren Leather;
[#48.] Several other suits, ties, shoes, beds, tables, boots, sweaters, TVs, jeans, jackets,
coasts [sic], dress shirts, etc. (totaling $175k);
[#49.] Gucci Bike.
Pl.’s List at 1.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the
burden of demonstrating the “absence of a genuine issue of material fact” in dispute, Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific
facts supported by materials in the record that would be admissible at trial and that could enable
a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment,
appropriate inquiry is “whether, on the evidence so viewed, ‘a reasonable jury could return a
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verdict for the nonmoving party’” (quoting Liberty Lobby, 477 U.S. at 248)). A court
considering a motion for summary judgment evaluates all underlying facts and inferences in the
light most favorable to the nonmovant, Liberty Lobby, 477 U.S. at 255, and “eschew[s] making
credibility determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363
(D.C. Cir. 2007).
When a motion under Rule 41(g) is made after criminal proceedings have terminated and
the government has failed to either forfeit or return the property, the motion is construed as a
civil complaint requesting equitable relief in the form of the property’s return. See United States
v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003) (collecting cases that stand for the proposition that a
post-trial 41(g) motion must be “treat[ed] . . . as a civil complaint governed by the Federal Rules
of Civil Procedure”). Property seized in the course of an investigation must be returned at the
close of criminal proceedings or civil forfeiture proceedings unless it is (1) contraband,
(2) needed as evidence, or (3) properly forfeited by the government. United States v. Farrell,
606 F.2d 1341, 1347 (D.C. Cir. 1979).
III. DISCUSSION
In its motion for summary judgment, the government has provided the evidence missing
from its previous motion and proceeded under the appropriate procedural posture. 3 The
government now asserts that it “never possessed” any of the 27 remaining items, that the
documents associated with the searches support its position that it never seized the items in
question, and that plaintiff has failed to present any evidence that the government “currently
3
The government has fashioned its motion as a “Renewed Motion to Dismiss or, in the Alternative, for
Summary Judgement.” The government’s filing is best construed as a motion for summary judgment because of its
reliance on documents lying outside of the pleadings. See FED. R. CIV. P. 12(d) (“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.”).
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possesses or previously possessed the twenty-seven unaccounted items.” Gov’t’s Reply in Supp.
of Renewed Mot. to Dismiss or, in the Alternative, for Summary Judgment (“Gov’t’s Reply”) at
2, ECF No. 47; see also Gov’t’s Mot. at 3–4. For support, the government has submitted a
declaration from DEA Task Force Officer Matthew Albertson, who has reviewed the records of
DEA’s investigation of Ford-Bey and determined that “no record” of the 27 remaining items can
be found “in any DEA report.” Gov’t’s Mot. at 3 (quoting Gov’t’s Mot., Att. 1, Declaration of
DEA Task Force Officer Matthew Albertson (“Albertson Decl.”) ¶ 10, ECF No. 40-1). The
government declarant examined the corresponding DEA reports of investigation, search warrant
returns, return receipts for items returned to plaintiff’s mother, photographs related to the
searches, and itemized lists of the watches and jewelry seized. Albertson Decl. ¶¶ 7–8, 10, 12.
The government attached each of these documents, other than the photographs, as exhibits to its
motion. See DEA ROI; Gov’t’s Mot., Ex. C (“Return Receipts”), ECF No. 40-4; Gov’t’s Mot.,
Ex. D (“Search Warrant Returns”), ECF No. 40-5; Gov’t’s Mot., Ex. E (“Watch and Jewelry
Documents”), ECF No. 40-6.
Plaintiff argues that a genuine dispute of material fact remains over the status of the
items, speculating, alternatively, that (1) the government has the items and simply cannot locate
them; (2) the government seized but later destroyed the items; or (3) government agents
wrongfully took the items. Pl.’s Opp’n to Gov’t’s Motion to Dismiss or, in the Alternative, for
Summary Judgment (“Pl.’s Opp’n”) at 2–3, ECF No. 44. He asserts that the government’s
submitted declaration “clearly suggests that the government seized [the remaining items].” Id. at
3. 4 More specifically, he asserts that the agents “initially listed and itemized the now missing 27
4
Defendant also argues that government’s initial search warrant was defective and that the search of his
apartment was carried out in violation of the law. Id. at 3–7; Pl.’s Surreply in Opp’n to Gov’t’s Renewed Motion to
Dismiss or, in the Alternative, for Summary Judgment (“Pl.’s Surreply”) at 3, ECF No. 48; Pl.’s Mot. to Take
Judicial Notice (“Pl.’s 2nd Surreply”) at 2–4, ECF No. 51. The validity of the warrant supporting the search is
9
items,” that they were under the sole control of the government, and that “every piece of property
[in his apartment] was itemized and taken by the government.” Pl.’s 2nd Surreply at 2–5.
Plaintiff has also submitted pages of receipts “as proof that he frequented the high end
stores” from which he claims to have purchased the missing items. Id. at 2; see, generally, Pl.’s
Second Errata Notice (“Pl.’s Receipts”), ECF No. 49. While these receipts do not list the
specific items plaintiff seeks to obtain, he posits that frequently purchasing items from the stores
makes more likely that he lawfully possessed the items on his list. Pl.’s 2nd Surreply at 3. This
is a leap too far from concrete evidence to rank supposition based on a weak assumption.
By contrast, the government has presented sufficient evidence to meet its burden at
summary judgment. With the submission of DEA reports of investigation, the search warrant
returns, the itemized lists of seized jewelry and watches, and the Albertson Declaration
contextualizing these documents, no genuine dispute of material fact exists over whether the
government seized and currently possesses the remaining 27 items. The government did not
seize nor currently possesses the remaining items. None of the four DEA reports of investigation
or two search warrant returns—including those from the search of plaintiff’s apartment, from
which he alleges the items were taken—lists any of the 27 items that plaintiff claims are still in
the government’s possession, strong evidence that the government never seized the items in any
of its searches. 5 Moreover, the search warrant return for the key August 17, 2012 search of
irrelevant to the question here of whether the government is in possession of seized property that it must return. See
Gov’t’s Reply at 4–5 (citing FED. R. CRIM. P. 41(g)). If the government is in possession of the property that was not
(1) contraband, (2) forfeited, or (3) subject to retention pending trial, the government would have to return the
property even if it had been seized in a lawful search. See Farrell, 606 F.2d at 1347.
5
The government seized property from plaintiff on four instances: (1) during a controlled delivery on August
17, 2012, DEA ROI at 1–11; (2) pursuant to the execution of a search warrant of plaintiff’s Washington, D.C.,
residence on August 17, 2012, id. at 12–21; (3) pursuant to the execution of a search warrant of plaintiff’s
girlfriend’s residence on August 18, 2012, id. at 22–27; and (4) during the arrest of plaintiff on August 16, 2013, id.at 28–29. Plaintiff says that the 27 remaining items were taken from his residence, searched on August 17, 2012.
Pl.’s Opp’n at 3; Pl.’s 2nd Surreply at 1.
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plaintiff’s apartment states that the property taken from the premises pursuant to the warrant
included only “Documents; Assorted watches; Assorted jewelry; Ipad; $588 in cash; Glock
.357.” Search Warrant Returns at 1. 6 The “assorted watches” and “assorted jewelry” are
itemized in the government’s seizure forms describing the items in the relevant exhibit, and all of
these items were forfeited. Watch and Jewelry Documents at 18–19 (listing the items in exhibit
N-200, consisting of the “Assorted Watches and Jewelry” seized from plaintiff’s apartment).
Plaintiff’s assertion to the contrary—that the government’s evidence “clearly suggests
that the government seized [the remaining items],” Pl.’s Opp’n at 3—might be taken to refer to
the references to “watches” and “jewelry” in the DEA reports of investigation, see DEA ROI at
14, 23, and the search warrant returns, Search Warrant Returns at 1, 13, associated with the
searches. 7 The remaining items on plaintiff’s list include four pieces of jewelry. See Pl.’s List
nos. 12, 22, 23, 26. The government has submitted itemized lists of the jewelry and watches
seized in its searches, and none reflects any of the 27 remaining items on plaintiff’s list. Watch
and Jewelry Documents at 9–10, 18–20. Furthermore, all of the watches and jewelry on the
government’s seizure list were subject to administrative forfeiture. Watch and Jewelry
Documents at 6, 8–9, 16, 17–19. As explained in the Court’s earlier opinion, any claim as to
these items is time-barred. Ford Bey, 2020 WL 32991, at *9. Therefore, the identity of the
document plaintiff believes “initially listed and itemized the now missing 27 items,” Pl.’s 2nd
6
The inventory of seized property from the search of plaintiff’s girlfriend’s apartment lists “Misc hand bags;
Records and Documents Misc; Records and Documents Financial; Misc Pictures; Misc Jewelry; Alabama ID; IPad;
Cashier Check $2,105.00.” Search Warrant Returns at 13. The jewelry seized in this search was also inventoried
and forfeited. Watch and Jewelry Documents at 8–9. 16.
7
Plaintiff argues that the government has “admit[ted] to having seized and itemize[ed] the 27 remaining
items,” Pl.’s Opp’n at 3; see also Pl.’s 2nd Surreply at 4, but the government maintains that the items were never in
its possession, Gov’t’s Reply at 2.
11
Surreply at 2, is wholly unclear. In short, the relevant property is absent from the government
documents describing the evidence seized in DEA’s searches. 8
Plaintiff further argues that an evidentiary hearing would “reveal that the government was
the only authority who had total control of plaintiff’s apartment and subsequent [sic] property by
placing a padlock on the plaintiff’s apartment and denying entry even to the apartment building’s
management team . . . until every piece of property was itemized and taken by the government.”
Pl.’s 2nd Surreply at 3–4; see also Pl.’s Mem. at 2 (suggesting that the government seized all of
the contents of his apartment). Plaintiff does not provide a basis for this assertion, however, let
alone present evidence supporting his claim that the government “had total control of plaintiff’s
apartment” and emptied it of “every piece of property.” Pl.’s 2nd Surreply at 3–4. Plaintiff says
that his brother and godson were present at the apartment during the search and “witnessed the
plaintiff’s apartment ransacked and searched,” id. at 3, but plaintiff does not claim that his
characterization of the government’s search came from these individuals, nor does he present an
affidavit, declaration, or other evidence to support his characterization of the search and seizure. 9
Plaintiff was, as noted before, a fugitive at the time of the search and does not appear to have
personal knowledge of what transpired. Plaintiff’s bare assertion that all of his property was
8
The district court’s forfeiture order also includes “$24,565.00 in Assorted Clothing.” Forfeiture Order at 4.
It is unclear what relationship these items have with the clothing items plaintiff claims were seized from him. Pl.’s
List nos. 32–48. Neither the government nor plaintiff has described whether the clothing listed in the forfeiture
order as “subject to forfeiture” was actually processed through forfeiture proceedings. None of the specific items of
clothing on the forfeiture list clearly match those on plaintiff’s list, though the list in the forfeiture order is notably
non-exhaustive and plaintiff’s list contains a general category of “Several other [items of clothing].” The records
provided by the government, however, indicate that no clothing was seized during the search of plaintiff’s
apartment. DEA ROI at 19–21; Search Warrant Returns at 1.
9
Plaintiff has presented an affidavit from his brother, but in describing the search, the affidavit merely states
that “the apartment was in disarray, and trashed as if it had been searched.” Affidavit of Moab Ford-Bey in Supp. of
Pl.’s Rule 41 Mot. ¶ 11, ECF No. 25. It says nothing about the seizure of plaintiff’s possessions.
12
seized does not create a genuine dispute of material fact to counter the evidence presented by the
government. 10
Further, plaintiff’s lengthy receipt list of his pre-arrest shopping does not create a genuine
dispute of material fact. First, as plaintiff seems to concede, Pl.’s 2nd Surreply at 2, the receipts
do not show that plaintiff ever possessed the missing items but rather that he frequently bought
items from some of the stores from which he allegedly also bought the 27 missing items on the
list. Compare Pl.’s List with Pl.’s Receipts. Plaintiff’s “Receipts for Versace Boutique
Purchases,” Pl.’s Receipts at 4–16, do not show that plaintiff actually purchased the precise
Versace item on the list of remaining items, Pl.’s List no. 28. The same is true of plaintiff’s
“Receipts for Gucci Boutique Purchases,” Pl.’s Receipts at 17–41, and “Receipts for Louis
Vuitton Boutique Purchases,” id. at 42–54. None of the specific items purchased are listed on
the receipts.
More importantly, even if plaintiff had presented evidence that he had purchased the 27
items, this would still be far short of showing that government agents seized the items during
their August 17, 2012 search of plaintiff’s apartment, failed to report those items on the DEA
report of investigation and search warrant return, and that those items are currently in the
possession in the government. Even if plaintiff owned the items in question, there would be no
genuine dispute of material fact regarding whether they were seized by, and currently in the
possession of, the government.
10
Plaintiff also “requests an evidentiary hearing to show with the government's own records that relief in the
form of a monetary equivalent is due to the plaintiff going forward,” Pl.’s Opp’n at 7, and more specifically, to place
the agents involved under oath to testify to whether they confiscated and itemized the 27 missing items, Pl.’s 2nd
Surreply at 2–3. Plaintiff has produced no evidence, however, that he ever possessed the missing items or that the
government seized them, as he must to survive summary judgment. See FED. R. CIV. P. 56(e) (“If a party fails to
properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may . . . grant summary judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it.”).
13
In a last gasp effort for some relief, plaintiff also asserts that he is entitled to monetary
compensation if the government seized his property, even if the government does not have the 27
remaining items in its position. The doctrine of sovereign immunity, however, bars the award of
money damages to replace items seized by the government but no longer in its possession. See
Bailey v. United States, 508 F.3d 736, 740 (5th Cir. 2007). Even if a material dispute of fact
existed over whether DEA agents seized the property and then somehow lost it, plaintiff would
be unable to obtain relief because no evidence suggests that the property is in the government’s
possession. Plaintiff cites United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1204–05 (10th
Cir. 2001), for the proposition that return of the “monetary equivalent” of improperly seized
property might be available under Rule 41(g) and, presumably in this civil action, Pl.’s Opp’n at
6, but this line is dicta in a standing analysis and provides no legal support for the position that
monetary relief is available here. In the second case plaintiff cites, the plaintiff was seeking the
return of seized funds, not monetary damages for the seizure of personal items. Id. (citing Torres
v. $36,256.80 U.S. Currency, 25 F.3d 1154 (2d Cir. 1994)).
In sum, the government’s proof overcomes plaintiff’s speculative allegations that items
seized from him in connection with the investigation into his criminal conduct were not properly
forfeited by, or are available to recover from, the government.
IV. CONCLUSION
For the foregoing reasons, the government’s motion for summary judgment is
GRANTED. An order consistent with this Memorandum Opinion will be entered
contemporaneously.
Date: December 16, 2020
__________________________
BERYL A. HOWELL
Chief Judge
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