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Vitrano v. United States

October 1, 2007


The opinion of the court was delivered by: John G. Koeltl, District Judge


The plaintiff has moved pursuant to Federal Rule of Criminal Procedure 41(g) for the return of property, which he claims was seized in connection with the underlying criminal case of United States v. Vitrano, No. 05 Cr. 1264 (JGK).

The Court has jurisdiction of this motion pursuant to the established principle that "[t]he district court where a defendant is tried has ancillary jurisdiction to decide the defendant's post-trial motion for return of seized property." Rufu v. United States, 20 F.3d 63, 65 (2d Cir. 1994). Because the motion was made after the termination of criminal proceedings against the plaintiff, the motion is treated as a civil complaint for equitable relief. See id.; Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992). The Court construes the Government's response to the plaintiff's motion as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.

In relevant part, Federal Rule of Criminal Procedure 41(g) provides: "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. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant...." Fed.R.Crim.P. 41(g).

Based on the doctrine of sovereign immunity, with respect to a Rule 41(g) motion, the Court lacks subject matter jurisdiction to entertain any claim for money damages arising from the loss of any property that is attributable to the Government. See Adeleke v. United States, 355 F.3d 144, 151 (2d Cir. 2004).*fn1

In this Circuit, if the plaintiff offers evidence that raises genuine factual issues, the Court should "[a]t the very least... take evidence and make factual findings to identify any items still in the possession of the Government...." Rufu, 20 F.3d at 65.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial."

Fed.R.Civ.P. 56(e).*fn2

Where, as here, a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).


In support of its motion, the Government has submitted various documents including log sheets documenting the property seized from the plaintiff's loft on April 26, 2005, an Affirmation by Special Agent James P. Wynne of the Federal Bureau of Investigation dated November 13, 2006 ("Wynne Aff.") and an Affirmation by Assistant United States Attorney Robin Morey dated August 24, 2007 ("Morey Aff."). The plaintiff has submitted a sworn Statement of Evidence wherein he asserts, among other things, that the Government seized property which it continues to hold wrongfully and indicates that his ...

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