Dorothy Brown v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0301p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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DOROTHY BROWN,

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Plaintiff-Appellant,

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No. 11-3612

v.

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Defendant-Appellee. -

UNITED STATES OF AMERICA,

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:11-cv-655—Christopher A. Boyko, District Judge.

Decided and Filed: September 5, 2012

Before: BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; COHN, District

Judge.*

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COUNSEL

ON BRIEF: James R. Willis, Cleveland, Ohio, for Appellant. Herbert J. Villa, UNITED

STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

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OPINION

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GRIFFIN, Circuit Judge. Plaintiff Dorothy Brown appeals the district court’s

dismissal of her motion seeking money seized by defendant United States and subject

to forfeiture in the criminal prosecution of her ex-son-in-law Kenneth Cooper. We

affirm.

Cooper was one of several co-defendants charged with, inter alia, conspiracy to

violate federal drug laws. See United States v. Ugochukwu, No. 1:10CR405, 2011 WL

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The Honorable Avern Cohn, Senior United States District Judge for the Eastern District of

Michigan, sitting by designation.

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No. 11-3612 Brown v. United States Page 2

4007403, at *3 (N.D. Ohio, Sept. 9, 2011). He allegedly stored proceeds of this criminal

activity in a safe at Brown’s residence. After obtaining Brown’s consent, law

enforcement officers searched her residence and recovered $102,570 from the safe. That

money was then identified in a bill of particulars in Cooper’s criminal proceeding on

October 22, 2010. Brown was notified by letter dated November 12, 2010, that the

money recovered from the safe would be subject to forfeiture. Cooper eventually pled

guilty to the charges and agreed to the forfeiture of the seized currency, including the

$102,570.

On December 16, 2010, Brown filed a claim for the $102,570 in an

administrative proceeding with the Federal Bureau of Investigation. A few months later,

on March 31, 2011, she filed this motion for return of the money in the United States

District Court for the Northern District of Ohio, under Federal Rule of Criminal

Procedure 41(g), 18 U.S.C. § 983, and the Due Process Clauses of the United States

Constitution. In her motion, Brown argued that the government did not timely

commence a civil forfeiture action after she filed the December 16, 2010, administrative

claim and that the money could not be forfeited criminally because the government

failed to include it in an indictment. The district court dismissed the suit, concluding

that it lacked jurisdiction pursuant to 21 U.S.C. § 853(k)(2).

On appeal, Brown contends that the district court erred in dismissing her motion

for three reasons: (1) the grand jury did not find probable cause to believe that the

$102,570 was forfeitable because the money had not yet been discovered at the time of

the original indictment; (2) the government failed to comply with 18 U.S.C.

§ 983(a)(3)(B) because it did not obtain a criminal indictment containing an allegation

that the property was subject to forfeiture before the time for filing a complaint had

expired; and (3) there were other claims besides the return of the seized money raised

in the motion before the district court, i.e., Brown allegedly “[a]lso sought . . . some

vindication of Fourth Amendment Rights. For if appellant’s consent to the search was

involuntary and for that reason illegal, she was wronged.” We find these arguments

unavailing.

No. 11-3612 Brown v. United States Page 3

The district court correctly concluded that it lacked jurisdiction over Brown’s

motion for return of the money. Under 21 U.S.C. § 853(k)(2), a third party asserting an

interest in a forfeiture proceeding is “expressly barred . . . from ‘commenc[ing] an action

at law or equity against the United States concerning the validity of [her] alleged interest

in the property[.]’” United States v. Douglas, 55 F.3d 584, 586 (11th Cir. 1995) (quoting

21 U.S.C. § 853(k)(2)). “A third party’s only avenue for protecting [her] interest is the

procedure set forth in 18 U.S.C. § 853(n), which provides that ‘[a]ny person, other than

the defendant, asserting a legal interest in property which has been ordered forfeited to

the United States pursuant to this section’ may ‘petition the court for a hearing to

adjudicate the validity of [her] alleged interest in the property.’” United States v. Wade,

255 F.3d 833, 837 (D.C. Cir. 2001); see also United States v. Nava, 404 F.3d 1119, 1125

(9th Cir. 2005) (explaining that § 853(k) “bars third parties . . . from bringing

independent suits against the United States once an indictment alleging that the property

is subject to forfeiture has been filed”). Because Brown brought this suit after the

government filed the indictment and bill of particulars in Cooper’s criminal case, her suit

is barred by § 853(k)(2).

Brown’s assertion that the government unlawfully included the $102,570 in the

criminal case against Cooper does not change things. Indeed, unless and until Brown

establishes a legal interest in the money, which she can only do now through a § 853(n)

proceeding, her claims that the government failed to comply with 18 U.S.C.

§ 983(a)(3)(B) and that the grand jury lacked probable cause to believe the money was

forfeitable do not help her at all. See United States v. Liquidators of European Fed.

Credit Bank, 630 F.3d 1139, 1146 (9th Cir. 2011) (noting that “if the third parties do not

have a superior interest and are not bona fide purchasers, then any ruling that the

forfeitability of the property was legally deficient would not accrue value to the third

parties, because they have no interest in the property”). Moreover, contrary to Brown’s

contention, her due process rights are not implicated by the dismissal of this suit because

she may bring her challenges to the legality of the forfeiture in the § 853(n) proceeding.

See, e.g., id. at 1143 (internal quotation marks and citation omitted) (explaining that

defendants “may adequately protect their interest in the funds . . . in the ancillary

No. 11-3612 Brown v. United States Page 4

proceeding under § 853(n)” and “may present all legal arguments that might bar the

government’s forfeiture in [that] proceeding[]”). We hold that Brown’s motion was

properly dismissed pursuant to § 853(k)(2).

Additionally, Brown’s motion fails because she has an adequate remedy at law.

In Shaw v. United States, 891 F.2d 602 (6th Cir. 1989), a plaintiff filed a motion for the

return of government-seized property under the former Rule 41(e), now Rule 41(g). See

De Almeida v. United States, 459 F.3d 377, 380 n.2 (2d Cir. 2006) (“Previously, the

subsection addressing motions to return property was Rule 41(e). In 2002, this

subsection was redesignated Rule 41(g) without substantive change.”). The district court

granted the government’s motion to dismiss the suit, and, on appeal, we affirmed. We

noted that “[o]nce the government initiated civil proceedings against [the plaintiff], she

was required to follow the statutory procedures set out in 19 U.S.C. §§ 1608 and 1618,”

and instead of following those procedures, “[she] ignored [them] and sought to use the

equitable remedy rather than pursuing the legal remedy.” Id. at 603. We held that

equitable relief was not available in these circumstances because “[u]nder standard

equity doctrine, where there is an adequate remedy at law it must be pursued.” Id.; see

also De Almeida, 459 F.3d at 382 (“A Rule 41(g) motion is an equitable remedy that is

available only when there is no adequate remedy at law . . . .”); United States v. Akers,

215 F.3d 1089, 1106 (10th Cir. 2000) (noting that “a forfeiture proceeding provides a

defendant with an adequate remedy at law for resolving a claim to seized property”).

Because 18 U.S.C. § 853(n) provides Brown with an adequate remedy at law for the

purpose of vindicating her interest in the $102,570, she is not entitled to equitable relief.1

AFFIRMED.

1

Brown also has an adequate remedy at law for any violation of her Fourth Amendment rights

in the form of a suit under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). Thus, her suggestion that the Rule 41(g) motion should not have been

dismissed because she also sought relief for a Fourth Amendment violation is likewise unavailing.