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Garba v. United States

November 3, 2006

OSMAN GARBA, PETITIONER,
v.
UNITED STATES, RESPONDENT.



The opinion of the court was delivered by: Hurley, District Judge

MEMORANDUM and ORDER

Petitioner Osman Garba ("Petitioner"), proceeding pro se, brings this action for the return of property pursuant to Federal Rule of Criminal Procedure 41(g) ("Rule 41(g)"). Specifically, by motion filed on January 26, 2006, Petitioner seeks the return of $76,762.00 that was seized in connection with his arrest on March 8, 1992. The government opposes the motion and seeks to dismiss the action. For the reasons stated below, Petitioner's motion is denied and this action is dismissed.

BACKGROUND

The following facts are undisputed, unless noted. Petitioner was arrested on March 8, 1992 at John F. Kennedy International Airport for attempting to smuggle currency outside the United States. At the time of his arrest, $76.762.00 was seized from Petitioner. On April 28, 1992, Petitioner pled guilty to failure to file a Currency or Monetary Instrument Report and to passport fraud violations. On July 13, 1992, Petitioner was sentenced to five years probation and four months home detention.

According to the government, on March 9, 1992, United States Customs Service ("Customs") instituted an administrative forfeiture proceeding against the currency that was seized from Petitioner at the time of his arrest. On March 13, 1992, Customs allegedly sent written notice to Petitioner of the forfeiture by certified U.S. mail, return receipt requested. It is unclear from the documents submitted where this notice was actually sent.*fn1 Customs also published notice of the forfeiture in Newsday on July 8, 1992. Petitioner asserts that he was in federal custody on March 13th and that he never received notice of the proceeding. On October 16, 1992, Customs administratively forfeited the sum of $76,762.00 to the United States pursuant to 19 U.S.C. § 1609.

On January 26, 2006, Petitioner filed the instant action, pursuant to Rule 41(g), seeking return of the money seized. Petitioner contends that on March 13, 1992, he was granted bail upon a bond of $75,000.00. He further asserts that it was his understanding that the currency seized was "to be used as evidence and also $75,000 of which as the bail bond."

(Petitioner's Reply at 2.) After his sentence was imposed, Petitioner allegedly requested that Customs return his property. According to Petitioner, Customs denied his request, citing the evidentiary value of the currency in a pending criminal investigation which was not completely resolved.

The government argues that Petitioner's Rule 41(g) motion should be denied and the action dismissed because the motion is time barred. For the reasons that follow, the Court agrees.

DISCUSSION

Where criminal proceedings are no longer pending against a defendant, a motion for the return of property made pursuant to Rule 41(g) is treated as a claim for civil equitable relief. See United States v. Giovanelli, 998 F.2d 116, 118-19 (2d Cir. 1993). Such actions are subject to the six-year statute of limitations set forth in 28 U.S.C. § 2401(a), see Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647, 653 (2d Cir. 1998), and accrue at the earliest of the following dates:

* at the close of the forfeiture proceedings, however soon after the seizure; or

* 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, see Boero, 111 F.3d at 305, 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. With regard to the later date, a plaintiff may have a total of eleven years - the five year forfeiture statute of limitations plus the six-year statute of limitations under 28 U.S.C. § 2401(a) - post seizure to complain about the deprivation of his property. Id.

According to computer records maintained by Customs, the currency seized from Petitioner was forfeited on October 16, 1992. Thus, the government argues that the limitations period expired six years later on ...


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