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BAUTISTA v. UNITED STATES

February 9, 1993

JOSE BAUTISTA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: EUGENE H. NICKERSON

MEMORANDUM AND ORDER

 NICKERSON, District Judge:

 Plaintiff Jose Bautista seeks the return of property seized from him at the time of his arrest at John F. Kennedy International Airport ("Kennedy Airport") on or about September 27, 1991.

 I

 Because this is one of many similar cases which now clog the docket and consume the resources of the Eastern District of New York, the court reviews the broader problem of which this case is a minor manifestation before addressing the particulars of Bautista's claim.

 Requests by criminal defendants and convicted prisoners for return of property seized from them may be divided into three types.

 In the first type the government seizes property, later determines that it is not needed as evidence or subject to forfeiture under 21 U.S.C. § 881(a)(6), and agrees to release it to a relative, friend or agent designated by the claimant who is able to travel to Kennedy Airport to take delivery of the property. While this court sometimes receives letters and telephone calls from anguished defendants and their counsel seeking the court's intervention to expedite the return of such property, the court has not yet been greatly burdened by these controversies. Presumably the heads of appropriate agencies at Kennedy Airport and the United States Attorney are conscious of the time consumed by the court, Public Defenders Services Unit of the Legal Aid Society, the private defense bar and the United States Attorney's office and have or will develop appropriate procedures.

 In the second type of case, when the individual is arrested at Kennedy Airport, his or her suitcase, return airplane ticket, United States currency, foreign currency and other belongings are seized. He or she requests that the property be shipped to his or her detention facility or to an addressee in a foreign country (or, at times, in this country).

 The government concedes that it is holding the claimant's property, but it refuses to pay for shipping, contending it has no authority to expend funds for such purpose (although it seemingly pays the cost of mailing smaller items). The claimant, a visitor to the United States, has no money to pay for such shipping since the government has already taken all of his or her money. So far, these cases remain immune from resolution, although the United States Attorney's Office urges the court to be patient while it attempts to find an administrative solution.

 In the third type of case, a claimant and the government disagree as to which property was seized at the time of arrest. In such cases, if and when the court determines through motion practice that genuine issues of material fact exist, counsel may be appointed to represent the claimant and, with or without counsel, the claimant is brought to Brooklyn so that a trial may be conducted.

 They are made more difficult by the reported uncooperativeness of at least some of the agents. For example, this court recently directed the government to file a motion for summary judgment or, if appropriate, to seek an evidentiary hearing in Aikude v. United States of America, 92 CV 625. The Assistant United States Attorney, informed the magistrate judge assigned to the case that she could not move for summary judgment because the appropriate agent was not willing to sign an affidavit. She suggested that the magistrate judge schedule a hearing or trial to compel the agent to appear.

 The United States Attorney's office reports that it is focusing substantial attention on these cases. In particular, it says that inventory procedures at Kennedy Airport have been improved, and it predicts that factual disputes will diminish in number in the future.

 Nevertheless these cases will continue to impose an extraordinary burden on the courts of this district. In addition to Bautista, some sixteen other cases have been filed in these chambers in the past six months. Toure v. United States of America, 92 CV 4534; Kyei v. United States of America, 92 CV 4704; Obi v. United States of America, 92 CV 4860; Onuoha v. United States of America, 92 CV 2326; Umenuka v. United States of America, 92 CV 5180; Job v. United States of America, 92 CV 5332; Adjudua v. United States of America, 91 CV 2568; Nwankwo v. United States of America, 92 CV 5678; Chinwuba v. United States of America, 92 CV 4924; Moussa v. United States of America, 92 CV 2579; Uke v. United States of America, 92 CV 4129; Ihuoma v. United States of America, 92 CV 4363; Ezeanni v. United States of America, 92 CV ...


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