The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY
Federico Giovanelli seeks, under Fed. R. Crim. Pro. 41(e), the return of certain moneys, $ 471,600, that were seized from safe deposit boxes by the United States, contending that there was no proper forfeiture, and that the applicable statute of limitations (five years) bars their forfeiture at the present time. The initial question before us is whether the court that rendered a criminal judgment against defendant has jurisdiction to entertain that criminal defendant's motion for return of property seized when that property was seized and forfeited in a default action in another district, where the defendant claims that the default judgment in the other district was accomplished without proper notice to him. This court finds that we have jurisdiction but that even accepting Giovanelli's contention that the notice to him was inadequate at the time of the forfeiture proceeding, equitable bars prevent him from recovering the funds seized.
On December 9, 1986, $ 471,600 was seized from Giovanelli's safe deposit boxes (Government's Declaration in Opposition, P 4). In 1987, a forfeiture action was filed in the Eastern District of New York before District Court Judge Constantino. Notice to defendant of the forfeiture action was published in the New York Post on February 8, 1988 (Government's Declaration in Opposition, P 8 and Ex. 5). Notice was also sent, on January 28, 1988, according to the Government, "by certified mail, return receipt requested, to the defendant Federico Giovanelli, who was the only known interested party to the forfeiture action. . . . The notice was sent to the defendant who was then incarcerated in a New York City detention facility [Rikers] on 1818 Hazen Street, Elmhurst, New York 11370" (Government's Declaration in Opposition to Rule 41(e) Motion, P 7). The Government included in its opposition to the motion a copy of the certified mail receipt as Ex. 4 in its Declaration in Opposition. On March 7, 1988, a decree of forfeiture was filed with the clerk of the Eastern District (Government's Declaration in Opposition, P 10).
Movant contends not only that he never received such notice, but also that the Government should have known that he would not receive it, since at the time the notice was sent he was not incarcerated at Rikers but had been released instead. Movant points to the Government's own Ex. 4, a photocopy of the certified mail notification, which is marked "Return to Sender: Can't Locate in System." This, movant contends, indicates that notice was inadequate.
Movant insists that he was completely unaware of the forfeiture action in the Eastern District until the Government's Declaration of Opposition made reference to it. Attached to movant's Reply as Ex. A, Giovanelli's Department of Correction Certificates, and they indicate that Giovanelli was not at Rikers when notice of the forfeiture action was sent.
II. THIS COURT'S CAPACITY TO HEAR THE CLAIM PRESENTED
A. The Propriety of Using Rule 41(e) to Recover the Funds
It appears that until the instant motion, the Government was unaware of the alleged failure to reach movant. It therefore raises other possible bars to movant's recovery. First, it claims that a Rule 41(e) motion is an inappropriate vehicle for the relief sought. This contention is incorrect.
The government, in its Surreply, cites a very recent case, Onwubiko v. U.S., 969 F.2d 1392 (2d Cir. 1992 (July 15)) for the proposition that Rule 41(e) is not the preferred mechanism for challenging a forfeiture action. Instead, they contend, Giovanelli should issue his challenge in the forfeiture action.
In Obwubiko, the court said that "where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint." 969 F.2d at 1397. Another recent case, Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992) is cited in Onwubiko as additional support for the proposition that a district court has the authority to consider a rule 41(e) motion as a post-conviction return of property motion. We therefore hold that movant's use of Rule 41(e) is not a fatal flaw.
B. Jurisdiction of this Issue in the Southern District of New York
The Government declares that even allowing that a Rule 41(e) action is permissible, that this court lacks jurisdiction over the claim. However, case law clearly states that we have equitable jurisdiction over this motion, in addition to the fact that it is styled as a rule 41(e) motion is no bar to recovery.
Not only does Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992) support the proposition that a district court has the authority to consider a rule 41(e) motion as a post-conviction return of property motion; it also supports the position that the district court where the criminal action took place has jurisdiction over movant's motion, as equitable jurisdiction ancillary to jurisdiction over the criminal case. 955 F.2d at 158. See also Soviero v. U.S., 967 F.2d 791, 792 (2d Cir. 1992).
Principles of comity between federal courts bar simultaneous litigation of the same matter in more than one federal district court. When there are two lawsuits filed concurrently in a matter, the first one filed determines the locus of jurisdiction. First City Nat. Bank & Trust v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989); see also Employer's Ins. Of Wausau v. Prudential Ins., 763 F. Supp. 46, 38 (S.D.N.Y. 1991). Typically, this doctrine has been applied in situations where two active litigations are ongoing, not, ...