United States District Court, E.D. New York
Khalid Awan, pro se, Mendota, CA 93640, for Petitioner.
Ali Kazemi, Esq., Marshall L. Miller, Esq., Marcia Maria Henry, Esq., United States Attorney's Office, Eastern District of New York Brooklyn, NY, for Respondent.
MEMORANDUM & ORDER
JOANNA SEYBERT, District Judge.
Presently before the Court is pro se petitioner Khalid Awan's ("Petitioner") motion pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure for the return of property seized by the Government at the time of Petitioner's arrest on October 25, 2001. (Docket Entry 1.) For the following reasons, Petitioner's motion is GRANTED IN PART and DENIED IN PART.
I. Credit Card Fraud Criminal Proceeding
On October 25, 2001, agents of the Federal Bureau of Investigation ("FBI") arrested Petitioner at his house in Garden City, New York based on a material witness warrant issued in connection with the United States Government's investigation into the terrorist attacks of September 11, 2001. (See Exs. to Ptr.'s Reply Br., Docket Entry 7-1, at Ex. A.) At the time of Petitioner's arrest, the FBI was investigating Petitioner and others for their involvement in a credit card fraud scheme. (Gov't's Supp. Letter Opp., Docket Entry 13, at 2.) On the day of the arrest, the FBI searched Petitioner's home and his associate's residence in Floral Park, New York and seized evidence relating to the credit card fraud scheme. (Gov't's Supp. Letter Opp. at 2; Ptr.'s Mot., Docket Entry 1, Ex. A.)
On November 6, 2001, the Government vacated the material witness warrant but continued to hold Petitioner in connection with the credit card fraud scheme. (See Exs. to Ptr.'s Reply Br. Ex. A.) On December 4, 2001, Petitioner was indicted on credit card fraud charges and a superseding indictment was filed on May 7, 2002. (See United States v. Awan ("Awan I"), No. 01-CR-1328(JS) (E.D.N.Y.).) On March 17, 2003, Petitioner pleaded guilty before this Court to one count of credit card fraud in violation of 18 U.S.C. § 1029. On October 28, 2004, Petitioner was sentenced to sixty months imprisonment and also agreed to the entry of a forfeiture order pursuant to which Petitioner agreed to pay a forfeiture money judgment in the amount of $306, 785.22 and also forfeited items and property related to the fraud scheme. (See Final Order of Forfeiture, Awan I, Docket Entry 106.)
II. Providing Material Support Criminal Proceeding
After Petitioner's arrest, the FBI later discovered that Petitioner was providing money to the Khalistan Commando Force ("KCF"), a Sikh terrorist organization in India. Petitioner was indicted on March 8, 2006, and after a three-week jury trial before District Judge Charles P. Sifton, Petitioner was found guilty on December 20, 2006 of: (1) one count of conspiring to provide material support and resources to terrorists in violation of 18 U.S.C. § 2339A; (2) one count of providing material support and resources to terrorists in violation of 18 U.S.C. § 2339A; and (3) one count of money laundering in violation of 18 U.S.C. § 1956(a)(2)(A). (See United States v. Awan ("Awan II"), No. 06-CR-0154, (E.D.N.Y.), Docket Entry 146.) On September 12, 2007, Petitioner was sentenced to 168 months imprisonment. (See Judgment, Awan II, Docket Entry 210.) On April 2, 2012, after an appeal, see United States v. Awan, 607 F.3d 306 (2d Cir. 2010), Petitioner was re-sentenced to the same term. (See Awan II, Docket Entries 258, 259.)
III. Petitioner's 41(g) Motions
Following the conclusion of Awan I and Awan II, Petitioner filed two separate motions pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure for the return of property. On January 12, 2009, Petitioner filed a 41(g) motion for the return of the property that he forfeited pursuant to the plea agreement entered in Awan I. See Awan v. United States, No. 09-CV-0356(JS), 2012 WL 2579170 (E.D.N.Y. June 28, 2012). Notwithstanding the plea agreement, Petitioner moved this Court for the return of the forfeited property on the grounds that: (1) there was no probable cause to support forfeiture; (2) the amount of forfeiture constituted an excessive fine in violation of the Eighth Amendment; and (3) he was denied his Sixth Amendment right to trial. Id. at *1. On June 28, 2012, this Court denied Petitioner's motion in its entirety. See id. at *2.
Before that motion, however, on July 8, 2008, Petitioner also filed in Awan II a letter motion for the return of the property seized on October 25, 2001, apparently without his counsel's knowledge. (See Awan II, Docket Entry 224.) On July 15, 2008, Judge Sifton promptly held a status conference to address Petitioner's letter motion and directed Petitioner's counsel to consult with Petitioner to determine what legal proceeding, if any, Petitioner wished to pursue. (See Awan II, Docket Entry 225.)
Following the July 15th conference, the FBI voluntarily released to Petitioner six of the items seized on October 25, 2001. (See Exs. to Ptr.'s Reply Br. Ex. G.) Petitioner filed a second letter dated January 21, 2009 for the return of the seized property, again, apparently without his counsel's knowledge. (See Awan II, Docket Entry 235.) On February 4, 2009, Judge Sifton held another status conference and directed the parties to send the Court a status letter by April 24, 2009. (See Awan II, Docket Entry 236.) On April 24, 2009, Petitioner's counsel filed a status update explaining that Petitioner ...