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UNITED STATES v. MOLONEY

December 8, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
PATRICK MOLONEY, Defendant.



The opinion of the court was delivered by: LARIMER

 INTRODUCTION

 On November 28, 1994, defendant, Patrick Moloney, was convicted at a jury trial of conspiracy to possess money that had been stolen in a robbery at a Brinks depot in Rochester, New York, in violation of 18 U.S.C. §§ 371, 2113(c). The Court of Appeals affirmed his conviction on April 1, 1996. United States v. Millar, 79 F.3d 338 (2d Cir. 1996). *fn1" On July 28, 1997, Moloney filed a motion under Rule 41(e) of the Federal Rules of Criminal Procedure for an order directing the Government to return money and other property that was seized from him in connection with the investigation and prosecution of this case.

 The Government has agreed to return all of the property at issue, *fn2" but declines to turn over $ 183,300 in currency ("the money") seized from Moloney's residence on East Ninth Street in New York City on November 12, 1993. On that day, investigators searched both Moloney's residence and an apartment ("the apartment") that Moloney had subleased at 330 First Avenue in Manhattan. The investigators found over $ 2 million in a locked bedroom closet in the apartment. By examining the serial numbers of those bills, they were able to identify $ 107,980 of that money as having been stolen in the Brinks robbery in Rochester. The agents also found a suitcase in the apartment with Moloney's then-current address and telephone number. The suitcase contained $ 849,000.

 When they searched Moloney's residence, the investigators found a locked safe inside his closet. The safe contained $ 168,000 in cash. Some of the bills bore written numerical figures similar to figures found on pieces of paper in the apartment. The rest of the $ 183,300 that Moloney seeks here was located elsewhere in his residence.

 Upon an application by Brinks, I issued an order on March 14, 1995, directing the Government to turn over $ 2 million of the money seized at the apartment to Brinks, the victim of the robbery. The Government contends, however, that all the money seized at both Moloney's residence and at the apartment was stolen from Brinks and, therefore, it has turned over to Brinks the money seized from Moloney's residence as well, prior to the filing of Moloney's present motion. *fn3"

 DISCUSSION

 I. Procedural Issues

 Before turning to the merits of Moloney's motion, there are several procedural matters that must be addressed. These include the nature of Moloney's application, the applicable statute of limitations, and the burden of proof.

 Moloney filed this motion two years and eight months after his conviction, and nearly sixteen months after his conviction was affirmed by the Court of Appeals. Because Moloney filed the motion after termination of his criminal case, I must treat it as a civil complaint. Toure v. United States, 24 F.3d 444, 445 (2d Cir. 1994); Onwubiko v. United States, 969 F.2d 1392, 1396-97 (2d Cir. 1992).

 The case law is not uniform with respect to the precise nature of such an action, however. Courts have construed such claims as arising under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., and 28 U.S.C. § 1331 (federal question jurisdiction). Boero v. Drug Enforcement Admin., 111 F.3d 301, 305 n. 4 (2d Cir. 1997) (collecting cases). It is clear, however, that the court does have jurisdiction to hear such a claim.

 Both sides agree that the applicable statute of limitations is the six-year period for civil actions commenced against the United States as set forth in 28 U.S.C. § 2401(a). Since the earliest date on which Moloney's claim could have accrued was November 12, 1993, the date on which the money was seized, his action is timely. *fn4"

 The fact that the Government has turned the money over to Brinks does not render Moloney's claim moot. The court's equitable powers permit an award of damages if the court finds that the seized property should have been returned to the claimant, rather than to another. Soviero v. United States, 967 F.2d 791, 793 (2d Cir. 1992); Mora v. United States, 955 F.2d 156, 159 (2d Cir. 1992).

 The parties dispute which side has the burden of proof. Moloney contends that he must first make out a prima facie case of entitlement to the property (which he asserts he has done by virtue of the fact that the money was seized from his residence), and that the burden then shifts to the Government to prove by a preponderance of the evidence that it (or ...


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