The opinion of the court was delivered by: Townes, United States District Judge
Following the conclusion of federal criminal proceedings against her, petitioner Weily L. Bokel filed a motion pursuant to Rule 41(e) -- now Rule 41(g)*fn1 -- of the Federal Rules of Criminal Procedure, seeking to recover property which was seized by the police following her arrest. By order dated June 9, 2006, Magistrate Judge Lois Bloom, citing Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992), and progeny, construed the motion as a civil complaint and directed respondent United States (the "Government") to respond. The Government did so by filing a letter, accompanied by a Rule 56.2 Statement, which requests that this action be dismissed but which expressly states that it is not "a motion pursuant to Rule 12 or Rule 56 of the Federal Rules of Civil Procedure." See Letter of AUSA Laura D. Mantell, dated Sept. 21, 2006 (the "Government's Letter") at 1, n. 1, and 4. Petitioner subsequently cross-moved for judgment on the pleadings or, in the alternative, an order extending her time to conduct discovery. For the reasons set forth below, both the Government's application and petitioner's motion are denied.
On December 24, 2003, petitioner, a citizen of Brazil, abducted her young daughter, Rachel, in Virginia. One week later, petitioner was arrested at Kennedy Airport in Queens, New York, as she attempted to flee the country with the girl. See Declaration of Jenifer Adams (Ex A to the Government's Letter) at ¶¶ 1-2. At the time of her arrest, petitioner was in possession of six pieces of luggage and other property, some or all of which was seized by police. Id. at ¶ 3.
Although petitioner was arrested by the New York-New Jersey Port Authority Police Department ("PAPD"), and spent some time in the custody of the New York City Police Department ("NYPD"), petitioner was soon transferred to federal custody. On January 16, 2004, she appeared before Magistrate Judge Victor V. Pohorelsky and consented to removal to the West District of Virginia. See United States v. Bokel, No. 04-mj-00008 (VVP). There, in December 2004, petitioner was convicted of one count of attempted international parental kidnapping in violation of 18 U.S.C. §1204(a) and sentenced to 33 months' imprisonment. See Ex. C to the Government's Letter at 1, 2.*fn2
On May 26, 2005, petitioner filed a "Motion for Return of Property" in the United States District Court for the Western District of Virginia, seeking the return of cash, jewelry and other items. In an effort to resolve the motion, District Judge Norman K. Moon had "conversations" with both the prosecutor and defense counsel in petitioner's criminal case, in which he "learned that the cash that was not garnished was already returned" to petitioner and that the remaining property "had been seized at New York's Kennedy Airport and was being held by the New York Police Department's Property Division." Bokel v. United States, No. 6:04-CR-70018, slip op. at 1 (W.D.Va. Sept. 19, 2005). On September 19, 2005, Judge Moon denied petitioner's motion, citing the then-superceded Rule 41(e) for the proposition that motions for the return of property could only be brought in the district in which the property was seized.
On May 10, 2006, petitioner filed a second "Motion for Return of Property," this time in the United States District Court for the Southern District of New York. That motion described in some detail thirteen items or groups of items which allegedly had been seized at Kennedy Airport, including a gold necklace with a jade pendant, two silver necklaces with sapphire pendants, petitioner's Brazilian identifications, various children's books and stuffed animals, some videotapes and her daughter's passports. The motion specifically alleged, based on Judge Moon's September 19, 2005, order, that these items were being held by the New York City Police Department's Property Division.
In light of the allegation that the property had been seized at Kennedy Airport, Chief Judge Michael B. Mukasey promptly transferred the action to this Court pursuant to 28 U.S.C. §§ 1391(b) and 1406(a). See Bokel v. United States, No. 06-CV-3535 (MBM), slip op. (S.D.N.Y. May 10, 2005). On June 9, 2006, Magistrate Judge Bloom granted petitioner's application to proceed in forma pauperis and, construing petitioner's submission as a civil action, directed the Government to respond. See Bokel v. NYPD Prop. Clerk Div., No. 06-CV-2849 (SLT)(LB), slip op. at 1 (E.D.N.Y. June 9, 2006).
On September 21, 2006, the Government responded by filing a four-page letter and six exhibits, including two declarations and a letter from the NYPD's Legal Bureau. The Government's Letter asserts that "the United States has already returned a number of seized items" to petitioner and her representatives, including some property which "fit the description of the items sought in the Motion." Government's Letter at 2. In addition, the letter alleges that some of the items sought are in possession of the United States District Court for the Western District of Virginia and the NYPD. Government's Letter at 2-3. However, with the exception of three of the items -- the gold necklace with the jade pendant (which is allegedly in the possession of the NYPD) and petitioner's Brazilian identifications and her daughter's passports (which are allegedly in the possession of the district court) -- the Government does not unequivocally state that any of the items returned or located are among the thirteen items or groups of items petitioner seeks. Rather, the Government only states that the items returned or located are "possibly" the items petitioner seeks. Id. at 2-3.
The Government asserts that it has no objection to returning all of the items it has located, with the exception of the daughter's passports. The Government's Letter, however, provides no information concerning who has custody of the girl or any legal discussion concerning the passports. Rather, the letter merely states that AUSA Mantell was "advised by [an AUSA involved in the prosecution of petitioner in Virginia] that the only person to whom the daughter's travel documents should be returned is her father." Id. at 3.
The letter also alleges that the Government has been "unable to locate" some of the items requested or "any record indicating that they had ever been seized." Id. at 3. In support of that allegation, the Government attaches the declarations of two law enforcement officers: Mark L. MacKizer, the FBI special agent who investigated the criminal case against petitioner, and Jenifer Adams, one of the PAPD detectives who arrested petitioner. As described in more detail in the discussion below, these declarations do not provide much detail and do not attach any vouchers, receipts, log entries or other documentary evidence. Nonetheless, the Government implies that these declarations must be accepted as fact by arguing that the action "should be dismissed with prejudice." Id. at 4. In addition, although petitioner has requested only the return of the items and not monetary relief, the Government cites Adeleke v. United States, 355 F.3d 144 (2d Cir. 2004), for the proposition that it "cannot be held liable for damages with respect to property that 'for whatever reason . . . is not available for Rule 41(g) return.'" Government's Letter at 4 (citing Adeleke, 355 F.3d at 151).
Despite the fact that its letter requests dismissal of the action and was accompanied by a Rule 56.2 Statement, the Government expressly states that the letter is not a motion pursuant to Fed. R. Civ. P. 12 or 56. See Government's Letter at 1, n 1. Indeed, the Government's Letter ends by stating:
In the event Your Honor finds that it is necessary for the United States to proceed by filing a motion pursuant to Rule 12 or, in the alternative, Rule 56 to dispose of this action, the United States ...