Aigbekaen v. Nielson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RAYMOND I. AIGBEKAEN,

Plaintiff, MEMORANDUM & ORDER

18-CV-6529(EK)(RLM)

-against-

WENDY FU, LEONARDO CABRERA, and JOHN

KLISOURIOTIS,

Defendants.

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ERIC KOMITEE, United States District Judge:

This is one of several actions (in multiple districts)

brought by pro se plaintiff Raymond Idemudia Aigbekaen

challenging aspects of his 2016 conviction in the District of

Maryland for sex-trafficking involving minors. In this action,

Plaintiff brings claims under the First and Fourth Amendments of

the U.S. Constitution against three Customs and Border

Protection (“CBP”) officers who, as part of the investigation

leading to his arrest, searched and seized his laptop and other

electronic devices at John F. Kennedy International Airport

(“JFK”) on May 19, 2015.1 He seeks an order requiring Defendants

1 Plaintiff initially sued several other officials at the Department of

Homeland Security (“DHS”). The presiding judge at the time, Judge Kiyo

Matsumoto, dismissed these defendants for failure to state a claim.

Memorandum & Order at 8-9, ECF No. 11. Following an order under Valentin v.

Dinkins, 121 F.3d 72 (2d Cir. 1997), the government identified the “Does” in

the complaint as three CBP employees: Wendy M. Fu, Leonardo A. Cabrera, and

John Klisouriotis. Defs’ Letter at 1, ECF No. 18; Order at 1-2, ECF No. 20.

They are the only defendants remaining in this action.

to return these devices, expunge all records of them — i.e., any

data drawn from the devices — and to prevent the use of any

evidence derived from those devices against him in future

criminal proceedings. He also seeks damages under Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971), and declaratory

relief.

The Court construes Plaintiff’s claims for the return

of his property as being brought under Rule 41(g) of the Federal

Rules of Criminal Procedure. I conclude that the Eastern

District of New York is the wrong venue for the claim to return

the physical devices; however, I dismiss this part of his

complaint without prejudice, rather than transfer, because the

claim is without merit. As for Plaintiff’s request to destroy

data and enjoin the use of evidence in future proceedings, I

dismiss his claim on the merits.

I. Background

The following facts are derived from Plaintiff’s

complaint, public dockets, and undisputed statements in

Defendants’ submissions. On May 19, 2015, CBP officers seized

Plaintiff’s laptop and other electronic devices in a warrantless

search when Plaintiff arrived at JFK from abroad. Homeland

Security Investigations — an office within DHS — then conducted

a warrantless forensic search of these devices. Though

Plaintiff was not arrested at JFK, the evidence recovered there

helped lead to Plaintiff’s sex-trafficking conviction in the

District of Maryland in September 2016. He was sentenced to a

prison term of fifteen years in that case, United States v.

Aigbekaen, No. 1:15-CR-00462-JKB, ECF No 228, and he remains

incarcerated.

Since then, Plaintiff has brought numerous challenges

to his conviction. On appeal of his criminal conviction, the

United States Court of Appeals for the Fourth Circuit held that

the warrantless forensic search of his devices was unlawful, but

that the evidence remained admissible under the “good faith”

exception to the warrant requirement. United States v.

Aigbekaen, 943 F.3d 713 (4th Cir. 2019). Two additional appeals

appear to remain pending in the Fourth Circuit. See United

States v. Aigbekaen, No. 19-7065 (4th Cir.) (appealing district

court’s denial of his motion for a new trial); United States v.

Aigbekaen, No. 20-6925 (4th Cir.) (appealing district court’s

denial of his motions for new counsel and immediate release).

Now in this District, Plaintiff brings civil claims

arising from the search and seizure at JFK. According to

Plaintiff, the Government still retains “bitstream copies” of

the devices seized there. Letter at 1, ECF No. 44. The

government does not contest that it retains digital copies of

evidence recovered from Plaintiff’s devices seized at JFK. It

is also undisputed, however, that the devices have themselves

now been returned to Plaintiff. The government apparently

retains possession of other devices seized from Plaintiff; but

those were seized in Houston, where officials arrested Plaintiff

three months after the seizure at JFK occurred. Defendants

state that the government is retaining these devices as

potential evidence in Plaintiff’s ongoing appeals of his

conviction.

II. Analysis

A. Plaintiff’s Request for the Return of Property

At oral argument on Defendants’ motion to dismiss, the

Court informed the parties that it would construe part of

Plaintiff’s complaint as a motion under Rule 41(g). This is

because Plaintiff’s complaint “requests relief in the form of

the return of his property,” which “can be read as a motion to

return property pursuant to Rule 41(g) of the Federal Rules of

Criminal Procedure.” Bertin v. United States, 478 F.3d 489, 492

(2d Cir. 2007). “As the motion was filed after the conclusion

of [Plaintiff’s] criminal proceeding, it is treated as a civil

equitable action.” Rogers v. United States, No. 10-CV-1247,

2010 WL 4968184, at *2 (S.D.N.Y. Nov. 30, 2010).

Rule 41(g) provides that “[a] person aggrieved . . .

by the deprivation of property may move for the property’s

return.” Fed. R. Crim. P. 41(g). In resolving a Rule 41(g)

motion, “[t]he district court must take evidence and make

findings of fact where necessary.” United States v. Podlog, 108

F.3d 1370, 1370 (2d Cir. 1997) (unpublished).

Here, Plaintiff seeks the return of his physical

devices, the destruction of data collected from them, and an

order enjoining the use of this evidence in future criminal

proceedings.

1. Devices Seized in Texas

As to the devices themselves, Plaintiff’s motion

should have been brought in Texas. A Rule 41(g) motion “must be

filed in the district where the property was seized.” Fed. R.

Crim. P. 41(g). Plaintiff challenges the seizure of his devices

at JFK, but he does not dispute that the only devices still in

the government’s possession — a laptop and two phones — were

seized in Houston, where Plaintiff was arrested three months

later. See Defs’ Rule 41(g) Brief at 2, ECF No. 41; Aigbekaen

v. United States, No. 1:17-CV-3700-JKB, Defs’ Mot. for Summary

Judgment, ECF No. 9-1 at 2 (D. Md. Apr. 6, 2016); see also

Amended Complaint at 6, ECF No. 4 (acknowledging that “[t]he

confiscation [from JFK] lasted for about a month”). Because

this claim should have been filed in the Southern District of

Texas, it must be dismissed. Cf. United States v. Collado, No.

14-CR-00731, 2020 WL 248685, at *3 (S.D.N.Y. Jan. 16, 2020);

Rogers, 2010 WL 4968184, at *1.

2. Data Seized in New York

Turning to the data seized at JFK, I find that the

government’s retention of this evidence is lawful.2 “If the

United States has a need for the property in an investigation or

prosecution, its retention of the property generally is

reasonable.” See Fed. R. Crim. P. 41, advisory committee notes.

Here, the government represents that it “maintains possession

of” Plaintiff’s property “as evidence in Plaintiff’s pending

appeals.” Defs’ Rule 41(g) Brief at 2. Some courts in this

Circuit have suggested that Rule 41(g) motions must be granted

when a search was unlawful. See, e.g., Ferreira v. United

States, 354 F. Supp. 2d 406, 409 (S.D.N.Y. 2005) (to prevail on

a Rule 41(g) motion, “a criminal defendant must demonstrate that

(1) he is entitled to lawful possession of the seized property;

(2) the property is not contraband; and (3) either the seizure

was illegal or the government’s need for the property has

ended.”). But the Fourth Circuit has already concluded that

this evidence is admissible in Plaintiff’s ongoing criminal

proceedings. See Aigbekaen, 943 F.3d at 725. Because Rule

41(g) “is not intended to deny the United States the use of

2 Venue lays in this District because the forensic search occurred

following the seizure at JFK. Cf. United States v. Huart, 735 F.3d 972, 974

n.2 (7th Cir. 2013) (holding that a warrant for the seizure of

electronically-stored information is executed when the device is seized)

(citing Fed. R. Crim. P. 41(e)(2)(B)).

evidence permitted by the fourth amendment and federal statues,

even if the evidence might have been unlawfully seized,” Fed. R.

Crim. P. 41, advisory committee notes, I decline to order the

destruction of this evidence or enjoin its use in the Fourth

Circuit proceedings, cf. United States v. Chambers, 192 F.3d

374, 377 (3d Cir. 1999) (courts should deny a Rule 41(g) motion

where “the government’s need for the property as evidence

continues”) (internal quotations and citations omitted); United

States v. Saunders, 957 F.2d 1488, 1495 (8th Cir. 1992) (denying

Rule 41(g) motion “because defendant’s direct appeal was still

pending”); Kee v. United States, No. 01-CV-1657, 2001 WL 897175,

at *1 (S.D.N.Y. Aug. 9, 2001) (same).

3. Transfer of this action is not warranted

Although courts may, “in the interest of justice,”

transfer a case to “any district . . . in which it could have

been brought,” 28 U.S.C. § 1406(a), it would be inappropriate to

do so here because Plaintiff’s claims lack merit, cf. Rogers,

2010 WL 4968184, at *1 n.2 (declining to transfer Rule 41(g)

motion where motion would fail). The government reports that it

has a continuing need for the devices seized in Houston. Defs’

Rule 41(g) Brief at 2. And courts in the District of Maryland

have denied Plaintiff’s request several times before. See

Aigbekaen v. United States, No. 1:20-CV-1920-JKB, ECF No. 2 (D.

Md. July 30, 2020) (denying Plaintiff’s third motion for the

return of property because he “continues to challenge the basis

of his criminal conviction”) (citing Aigbekaen v. United States,

No. 1:17-3700-JKB, ECF No. 12 (D. Md. May 1, 2018); Aigbekaen v.

United States, No. 1:19-3017-JKB, ECF No. 2 (D. Md. Oct. 22,

2019)). Plaintiff’s claims are therefore denied, rather than

transferred.

B. Plaintiff’s Claims for Monetary Relief

Plaintiff also seeks monetary relief under Bivens v.

Six Unknown Named Agents, 403 U.S. 388 (1971) for violations of

the Fourth Amendment. Defendants claim protection under the

doctrine of qualified immunity (among other things). For the

reasons set forth below, this Court agrees that qualified

immunity compels dismissal of Plaintiff’s claims.3

Qualified immunity shields government officials from

suit so long as their actions do “not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” White v. Pauly, 137 S. Ct.

548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 577 U.S.

7, 11 (2015) (per curiam)). Courts must consider whether “it

3 At the outset, the Court notes that only three of the original

Defendants remain in this case. Those Defendants are the three CBP agents

who stopped and searched Plaintiff at JFK. The complaint does not allege

that these individuals performed a forensic search of Plaintiff’s devices, or

that they have (or even can) access the data from those devices. In light of

Plaintiff’s pro se status, however, the Court will liberally construe his

complaint to allege that these Defendants performed the forensic search in

question.

was objectively reasonable for the [government official] to

believe the conduct at issue was lawful.” Gonzalez v. City of

Schenectady, 728 F. 3d 149, 154 (2d Cir. 2013) (internal

quotations omitted). This standard protects “all but the

plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986).

This standard is met here. Courts have long

recognized an exception to the warrant requirement for searches

at the nation’s borders. See United States v. Montoya de

Hernandez, 473 U.S. 531, 537 (1985) (“Since the founding of our

Republic, Congress has granted the Executive plenary authority

to conduct routine searches and seizures at the border, without

probable cause or a warrant. . . .”). At the time of the

search, “[n]o court had . . . require[d] a warrant for any

border search, no matter how nonroutine or invasive.”

Aigbekaen, 943 F.3d at 721 (internal quotations omitted); see

also United States v. Molina-Isidoro, 884 F.3d 287, 294 (5th

Cir. 2018) (Costa, J., concurring) (“[N]o reported federal

decision has required a warrant for any border search.”). On

appeal from Aigbekaen’s conviction, the Fourth Circuit held that

the search was unlawful. But it based this conclusion on a

principle it had expressed, in dicta, just one year before —

namely, the proposition that the border exception does not apply

to “nonroutine” searches of all the data on a subject’s

electronic device unless the motivations for the search “bear[]

some nexus” to the purposes for the border exception.

Aigbekaen, 943 F.3d at 721; see also United States v. Kolsuz,

890 F.3d 133, 143 (4th Cir. 2018) (suggesting that the border

exception would not apply to nonroutine forensic searches “in

which the government invokes the border exception on behalf of

its generalized interest in law enforcement and combatting

general crime”) (citing United States v. Vergara, 884 F.3d 1309,

1317 (11th Cir. 2018) (Pryor, J., dissenting)). This principle

was, essentially, a new exception to the border exception to the

warrant requirement. Neither of these cases was decided before

this search occurred; indeed, there was district court authority

to the contrary in the Fourth Circuit before those decisions.

See United States v. Saboonchi, 990 F. Supp. 2d 536, 570 (D. Md.

2014) (stating that CBP agents may conduct forensic searches of

electronic devices at the border if they have a “reasonable

suspicion” that the device “contains . . . evidence of criminal

activity”). Given this “rapidly changing” legal landscape,

Molina-Isidoro, 884 F.3d at 294 (Costa, J., concurring), it

cannot be said that the CBP officers were “plainly incompetent”

in believing the search to be lawful.4

4 Plaintiff’s other Section 1983 claims — for violations of the First

Amendment and the Fourth Amendment’s prohibition on unreasonable seizures —

are also without merit. A reasonable officer could have believed the

C. Plaintiff’s Claims for Declaratory Relief

Plaintiff also seeks declaratory relief. These claims

are dismissed. Plaintiff lacks standing to seek a declaration

regarding the constitutionality of federal airport policies,

because his “future injury” — which will arise only when he

travels abroad again someday “in the future” — is too

speculative. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564

(1992). And his request for a declaration that the search and

seizure of his devices was unconstitutional would serve no

“useful purpose” or “afford relief” from “uncertainty,” given

that the Fourth Circuit already addressed the issue. See

Starter Corp. v. Converse, Inc., 84 F.3d 592, 597 (2d Cir.

1996). Accordingly, the Court denies Plaintiff’s requests for

declaratory relief.5

seizures to be a lawful means to effectuate the purposes of the searches.

Cf. Saboonchi, 990 F. Supp. 2d at 565 (stating that a “particularly lengthy

seizure raises concerns where ‘the detention [is not] reasonably related in

scope to the circumstances which justified it initially’”) (quoting Montoya

de Hernandez, 473 U.S. at 542)). And Plaintiff’s claim that the search and

seizure had a “chill[ing]” effect on his free-speech rights is duplicative of

his Fourth Amendment claims and, in any event, without merit. Compl. at 4,

7.

5 Plaintiff’s request for a “writ of habeas corpus” on behalf of “Ms.

Maxwell” also is denied. See Letter at 1, ECF No. 36.

III. Conclusion

Defendants’ motion to dismiss the complaint is

granted. The Clerk of Court is respectfully directed to enter

judgment and close this case.

SO ORDERED.

/s/ Eric Komitee__________________

ERIC KOMITEE

United States District Judge

Dated: March 29, 2021

Brooklyn, New York