United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge.
matter is before the court on Defendant's pro se
motion for return of property pursuant to Federal Rule of
Criminal Procedure 41(g). ECF No. 146. Defendant requests the
return of his property by transfer to a designated
third-party for sale, and for just compensation if the
Government cannot return the property. The Government has
filed a motion to dismiss and memorandum in support. ECF No.
149. In reply, Defendant filed an affidavit in opposition to
the motion to dismiss. ECF No. 156. On May 5, 2017, the court
entered an order noting it intended to construe the
Government's motion to dismiss as one for summary
judgment, and directed Defendant to file any further
supporting information no later than June 5, 2017. ECF No.
157. A Roseboro Order was sent to Defendant with the order.
ECF No. 158. In response, Defendant filed a reply with his
own affidavit as well as an affidavit from Brian Zater, a
co-defendant and Defendant's brother. ECF No. 161. This
matter is now ripe for resolution.
requests return of property seized during his criminal case,
specifically, “various firearms, bullet-proof vests,
and personal property from Zater's vehicle - an '89
Oldsmobile Cutlass Calais.” ECF No. 146 at 4. In
January of 2006, Defendant was notified the FBI was in
possession of firearms and bullet proof vests and he had
thirty days to make a claim. Defendant filed a claim, and
designated a recipient for the items. In January 2007, the
FBI denied Defendant's claim asserting he did not have
legal authority to possess a firearm and could not delegate
such authority to another person, citing United States v.
Craig, 896 F.Supp. 85 (N.D.N.Y. 1995).
now argues he is entitled to return of his property because,
based on Henderson v. United States, 575 U.S., 135
S.Ct. 1780 (2015), a felon can transfer firearms to a third
party as long as “that disposition prevents the felon
from later exercising control over those weapons.”
Henderson, 135 S.Ct. at 1786. Because
Henderson overturned Craig, Defendant
asserts he now has a right to have his property returned to a
designated recipient. Defendant further argues his motion is
timely as he “ever diligent[ly]” pursued the
return of his property after the law changed in 2015.
Defendant requests that if his items cannot be returned, he
be credited the value of his items toward his outstanding
Government argues Defendant's motion is untimely because
it was filed outside the six year statute of limitations. ECF
No. 149-1 at 4. In addition, the Government argues the court
does not have subject matter jurisdiction over the property
at issue, as it has been declared abandoned; Defendant has no
lawful entitlement to the property he claims; and Defendant
had an adequate remedy at law based on the law at the time.
Defendant filed an affidavit in response, disagreeing with
the points advanced by the Government. ECF No. 156. Defendant
contends his motion is not untimely because he “pursued
this action diligently from the moment of inception, and
[has] exhausted all of the administrative remedies prior to
filing the instant action.” Id. at 2. He notes
“numerous genuine issues of material facts in
dispute” regarding who bought or owned the property in
question and his lawful entitlement to the property.
Id. at 5.
Defendant's claim for “just
Government argues this court does not have subject matter
jurisdiction over Defendant's claim because title to the
property Defendant requests has vested in the United States
under 41 C.F.R. § 128-48.102-1, and Federal Rule of
Criminal Procedure 41(g) does not allow recovery for
compensatory damages. ECF No. 149-1 at 6-7. The court agrees
it does not have subject matter jurisdiction to award
compensatory damages to Defendant for the value of his
property. See United States v. Jones, 225 F.3d 468,
470 (4th Cir. 2000) (holding courts lack jurisdiction to
award damages pursuant to Rule 41(g), due to sovereign
Defendant's claim for return of property
Defendant also requests return of his property or for the
court to credit the value of the seized property against
Defendant's restitution obligation. The court finds
Defendant's request for return of his property is
person aggrieved . . . by the deprivation of property may
move for the property's return.” Fed. R. Crim. P.
41. “The applicable limitations period, six years, is
set forth in 28 U.S.C. § 2401(a).” United
States v. Minor, 228 F.3d 352, 359 (4th Cir. 2000).
The accrual date is the date on which [Defendant] was on
reasonable inquiry notice of the forfeiture, i.e., the
earlier of the following: when he first became aware that the
government had declared the [property] forfeited, or when an
inquiry that he could reasonably have ...