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Olushola Akeem v. United States of America

February 22, 2012


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


Olushola Akeem moves pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure for the return of property seized by the United States Customs and Border Protection ("CBP") during his arrest in 2008. Because the criminal proceeding resulting from that arrest has terminated, see United States v. Akeem, 08 CR 180 (RJD), ECF No. 16, the Court construes Akeem's motion as a civil action in equity. See Diaz v. United States, 517 F.3d 608, 610 (2d Cir. 2008) ("A Rule 41(g) motion that is brought after the criminal proceeding is over is treated as a civil equitable action"). The government agrees that the 41(g) motion should be so construed but moves to dismiss the equitable action for lack of jurisdiction or, in the alternative, for summary judgment.

For the reasons that follow, the government's motion is granted in part and denied in part.


The following facts are either not disputed or conclusively established by the record.

A. The Terminated Criminal Proceeding

Olushola Akeem was arrested on February 21, 2008, shortly after his arrival at John F. Kennedy Airport on a flight from Nigeria, because he presented a counterfeit passport to a CBP officer in an effort to gain entry into the United States. At Akeem's arraignment later that day, Magistrate Judge Joan M. Azrack issued a permanent order of detention remanding him to the custody of the United States Marshals Service ("USMS"). On June 30, 2008, Akeem entered a plea of guilty before Magistrate Victor Pohorelsky to the offense of using a falsified passport in violation of 18 U.S.C. §1543. On September 4, 2008, this Court accepted the plea and sentenced Akeem to time served and a three-year term of supervised release. See U.S. v. Olushola Akeem, 08 CR 180, ECF Nos. 3, 5, 13-16.

Akeem's custodial status, despite apparent discrepancies in the parties' papers on the subject, is established as a matter of record. Akeem was housed in the Federal Bureau of Prisons ("BOP")'s Metropolitan Detention Center in Brooklyn ("Brooklyn MDC") from his initial remand on February 21, 2008 through March 3, 2008. On that date, according to the USMS Individual Custody and Detention Report furnished to the Court, Akeem was transferred to a private correctional facility in Queens under contract with the BOP, where he remained until September 8, 2008. On that date, pursuant to the judgment sentencing him to time served, Akeem was turned over to the custody of the United States Immigration and Customs Enforcement ("ICE") for removal proceedings to his native Nigeria.*fn1

B. The Property Seizure

At the time of Akeem's arrest, CBP seized and inventoried Akeem's personal effects. These items included a brown Armani duffel bag, various articles of clothing, toiletries, books, a computer bag, a cellphone, a wallet, 22 bills (totaling $1,401) of United States currency, and four bills of foreign currency. CBP provided Akeem with three forms, each of which bears his signature: (1) a form containing the inventory of the seized possessions, (2) a standard Baggage Release Notice (hereinafter, the "Baggage Release"), and (3), a form entitled "Authorization for the Release of Personal Effects Hold Harmless & Release Agreement" (hereinafter, the "Authorization-Release"). (The 3 forms together are Exhibit A to the Declaration of Karen Dugan-Rivera, Director of CBP's Office of Fines, Penalties and Forfeitures ("FP&F") at JFK Airport (hereinafter, the "Dugan-Rivera Declaration").

The Baggage Release describes three ways the passenger can retrieve his property: by going to a particular location to pick it up, designating a representative to do so, or arranging for CBP to ship it. In a paragraph of underlined text appearing just above the line bearing Akeem's signature, the form states that "Any luggage not picked up within one (1) year of the date of seizure/arrest will be considered abandoned and will be forfeited or disposed of by [CBP]."

On the Authorization-Release, Akeem filled in all six of the blanks that asked for his name, but not the other two blanks in the following sentence: "I, Olushola Akeem, hereby authorize _______, residing at _______, to take possession of the above-listed property on my behalf." The Authorization-Release also states that it is "an Agreement between Olushola Akeem . . . and [CBP] and that "(e)ither a CBP Officer or a Notary must witness the signing" of the document, but the lines provided for the CBP's officer's name and signature, and for those of the notary, remain blank.

The Dugan-Rivera Declaration also states that, "[o]n February 21, 2008, Akeem provided CBP with the following as his home address, which was entered into CBP's 'SEACATS' database: 15 Idimu Road, Alimosho, Lagos, Nigeria." The government's papers supply no other particulars about Akeem's furnishing of this address, which does not appear on any of the CBP documents that Akeem signed at the time of the seizure. The government does not assert, and there is nothing in the record to suggest, that Akeem directed CBP to send the seized property to Nigeria.*fn2

C. CBP's Commencement of Administrative Forfeiture Proceedings

On September 12, 2008, while Akeem was in ICE custody, CBP sent to Akeem's Nigerian address several documents relating to the seized property, including the Notice of Abandonment form and an additional Hold Harmless and Release of Personal Effects Form (together, Exhibit C to the Dugan-Rivera Declaration). Combined, the documents make specific reference to the property "seized on February 21, 2008 at JFK Airport" and explain that Akeem "may choose to abandon or reclaim" that property by following the procedures detailed in the forms, and that "either decision requires a response from [him] within thirty (30) days." The government's papers assert only that the furnishing of these materials was in compliance with an internal CBP directive, but the record makes clear that with this mailing, CBP was commencing administrative forfeiture proceedings. See 19 ...

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