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July 21, 2003


The opinion of the court was delivered by: John Keenan, Senior District Judge


Petitioner, Victor Morales, pro se, brings this action for the return of certain property allegedly seized in connection with his arrest on November 6, 1990, by United States Drug Enforcement Agency ("DEA") agents. Specifically, Morales seeks the return of: "1) his passport; 2) army discharge papers; 3) all papers from Ecuador; 4) any and all other papers, documents, identification, or other property of any kind." See Morales' Mot. for Return of Prop. at 3. The Government opposes the motion and moves to dismiss the complaint. For the reasons set forth below, Petitioner's motion is denied. The Government's motion is granted and the complaint is dismissed.


The following facts are drawn from Petitioner's complaint and from the record in the underlying criminal case. On November 5, 1990, Special Agent David M. Gaona applied for and received federal search and arrest warrants. That day, Victor Morales and his wife Gina Morales were arrested for violations of 21 U.S.C. § 841 and 846 by DEA agents. Gina Morales was arrested at approximately 7:00 a.m. at the Morales residence, 1327 Stratford Avenue, Bronx, New York. Gina Morales then telephoned Victor Morales and informed him of the situation and of the New York Drug Enforcement Task Force's ("NYDETF") warrant for his arrest. At approximately 8:00 a.m., Victor Morales surrendered himself to officers of the NYDETF at 1327 Stratford Avenue without incident. See Rafanello Decl., Ex. A.

On that day, Agent Gaona seized certain property. The following reflects, according to the DEA's records, the items seized from the 1327 Stratford Avenue residence: 1) drugs described as 70 glassine envelopes marked "OK" containing white powder and contained in a brown paper bag; 2) miscellaneous jewelry; 3) miscellaneous papers and records; 4) a 1985 yellow Nissan Maxima seized from Gina Morales; and 5) Victor and Gina Morales' passports. See id. DEA records show that the seized documents were maintained by Agent Gaona and later secured in a vault in the DEA's New York District office ("NYDO"). DEA records indicate that between November 14 and 15, 1990, the following property was returned to and signed for by Gina Morales: 1) five social security cards (belonging to Gina, Victor, and Arlene Morales, and Juan and Jeremiah Aceuedo); 2) four passports (belonging to Juan and Jeremiah Aceuedo, and Victor and Arlene Morales); 3) one "I.D. Card New York State" (number M15658-82860-345723-54); 4) three "Montefiore cards" (belonging to Juan and Jeremiah Aceuedo, and Victor Morales) 5) one "Med Card" (belonging to Gina Morales); and 6) two New York State Social Service cards (one of which belonged to Gina Morales). See Rafanello Decl., Ex. C. On December 18, 1990, Victor Morales pled guilty to Count One of a multi-count indictment, which charged that Morales and others conspired to violate federal narcotics laws by distributing and possessing with intent to distribute one kilogram and more of heroin, violating 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). The remaining charges were dismissed with the Government's consent. Victor Morales is currently serving an eighteen (18) year sentence in Elkton Federal Correctional Institution, Lisbon, Ohio to be followed by five (5) years supervised release.

On February 1, 2002, Victor Morales filed a motion in this Court pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, seeking return of property.*fn1 On May 31, 2002, any remaining non-drug evidence associated with the case against Petitioner that had not already been returned to Gina Morales had been destroyed in a routine purge. See Rafanello Decl., Ex. D (cataloging the destruction of "miscellaneous items," "miscellaneous records," "black scorpion stun gun," "orange sifter, small glassines, manitol," and "brown paper bags."). The Government responded to Morales' motion with a letter seeking an order from the Court pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure dismissing the action. This letter also noted that Petitioner never filed an administrative claim with the DEA regarding any matters raised in this action. See Goldman Decl.


Petitioner brings this action pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure for the return of property allegedly seized. Rule 41(g) states in part that "a person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized." Fed.R.Crim.P. 41(g). The Court in which a defendant has been tried has ancillary jurisdiction to decide the defendant's post trial motion for the return of any seized property. Soviero v. United States, 967 F.2d 791, 792 (2d. Cir. 1992). If the criminal proceedings against the defendant have terminated, as here, such a motion should be treated as a civil complaint for equitable relief. Rufu v. United States, 20 F.3d 63 (2d. Cir. 1994), citing Onwubiko v. United States, 969 F.2d 1392, 1397 (2d. Cir. 1992) ("motion pursuant to Fed.R.Crim.P. 41(e) should be treated as civil complaint"). On December 1, 2002, amendments to Rule 41 took effect. Rule 41(g), originally 41(e), was reworded and subsequently reletttered. However, as the advisory committee notes explain, the amendments were "stylistic" in nature. See Gonzalez v. United States, 01 Civ. 10095, 2003 WL 1213172, at *1 n. 1 (S.D.N.Y. Mar. 17, 2003) Thus, these amendments do not affect the substance of petitioner's motion. In addition, "if it is discovered that the Government has destroyed, disposed of, or is unable to locate the property at issue, a district court should exercise its equitable powers to determine if the claimant is entitled to damages." Id. at *2. Because Petitioner moves pro se, this Court must construe his pleadings and papers liberally, Onwubiko, 969 F.2d at 1397, to ascertain whether he can "prove any set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 521 (1972). Mindful of this standard, the Court turns to the Government's arguments.

I. Statute of Limitations — 41(g)

The Government argues that Petitioner's 41(g) motion should be dismissed because the motion is time barred. This Court agrees. Specifically, 28 U.S.C. § 2401 states in relevant part: a) ". . . every civil action commenced against the United States shall be barred unless the complaint is filed within six (6) years after the right of action first accrues." Prior to Polanco v. United States Drug Enforcement Admin., 158 F.3d 647 (1998), a Petitioner's awareness that his property had been taken was sufficient to trigger the six-year period provided for in § 2401. Under this standard, Petitioner's claim would have accrued on November 6, 1990, the date of his arrest and seizure of the property. The deadline for filing his claim would have been November 6, 1996. Therefore, under this standard, Petitioner's claim would be time barred.

However, in Polanco the Second Circuit rejected the district court's determination that the plaintiff's cause of action accrued upon the seizure of the property. See generally id. In Polanco, the Court held instead that accrual did not begin when plaintiff had reason to know of his property's seizure, but rather accrued upon whichever of the following occurred first: "(1) the close of the forfeiture proceedings, however soon after the seizure, or (2) if no forfeiture proceedings were conducted, at the end of the five year limitations period during which the Government is permitted to bring a forfeiture action, at which time the claimant — without other notice — had reason to know that the forfeiture proceedings had begun (or that the property was being held) without due process." Id. at 654. Here the Government did not institute forfeiture proceedings; therefore § 2401 was not triggered until the end of the five year period, on November 6, 1995. Thus, Petitioner had six years from that date, November 6, 1995, to bring the claim. Even considering the additional five years afforded Petitioner due to the Government's decision not to initiate forfeiture proceedings against him, Petitioner still moves too late, having filed his claim on February 1, 2002, after the November 6, 2001 deadline. His claim is time barred.

As Morales is proceeding pro se, the Court will look for methods other than Rule 41(g) by which he might show that this Court does have jurisdiction over his claim. The Government contends that any relief the Petitioner might seek under the Administrative Procedures Act ("APA"), the Federal Torts Claim Act ("FTCA"), and the Tucker Act, 28 U.S.C. § 1346(a)(2), are similarly time barred, and therefore any such claims must be dismissed for lack of subject matter jurisdiction. See Government's Mem. of Law in Opp. to Def.'s Mot.

The Court agrees that these claims are time barred. Untimeliness, however, is not the only hurdle preventing the success of Morales' claims under any ...

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