Petition for Writ of Certiorari — Abraham A. Augustin, Petitioner v. United States

Supreme Court briefFeb 28, 2022

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IN THE

SUPREME COURT OF THE UNITED STATES

£2!eci.e

ARRAHAM A.

ATTOTTSTTN

— PETITIONER

(Your Name)

vs.

UNITED STATES OF AMERICA — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

u.S ,.. Court of Appeals for the...Sixth..Circuit..............................

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Abraham A. Augustin

(Your Name)

P.0. Box 1032

(Address)

Coleman, Florida 33521

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

I. WHETHER THE UNITED STATES INDICTMENT OF A DEFENDANT WHO’S PROPERTY WAS

SEIZED BY THE STATE AND FBI DURING THE CRIMINAL INVESTIGATION OF A CASE

PROSECUTED IN FEDERAL COURT CREATED ANCILLARY JURISDICTION OVER THE PROPERTY

BY THE UNITED STATES AND U.S. DISTRICT COURT?

II. WHETHER A DISTRICT COURT ADJUDICATING A RULE 41(g) PROCEEDING FILED AT

THE CONCLUSION OF THE CRIMINAL PROCEEDINGS, CONSIDERED TO BE A CIVIL ACTION

IN EQUITY, HAS PANOPLY POWER TO GRANT RELIEF, INCLUDING ALLOWING THE CLAIMANT

TO ASSERT ALTERNATIVE CLAIMS?

III. WHETHER A DISTRICT COURT'S FOUR-YEAR DELAY AND THE CIRCUIT'S SEVEN-YEAR

DELAY IN ADJUDICATING A MOTION FOR THE RETURN OF PROPERTY CAUSED OR

CONTRIBUTED TO THE PROPERTY'S DESTRUCTION?

LIST OF PARTIES

[ ^ All parties appear in the caption of the ease on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE.........................

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

APPENDIX A Court of Appeals decision (February 11,

APPENDIX B District Court decision (June 17,

APPENDIX C December 30,

2022)

2020)

2011 Freedom of Information

APPENDIX D Sixth Circuit Appellate Docket Sheet (January 17,

APPENDIX E

Bradley County Attorney Letter

APPENDIX F

BCS0 Property Inventory Receipt

APPENDIX G - BCS0 Evidence Receipt

APPENDIX H

U-Haul rental truck VEHICLE TWO SLIP RECORD

APPENDIX I - Impound Lot

APPENDIX J - Impound Lot Access/Egress

2012)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix _A

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ Xj is unpublished.

The opinion of the United States district court appears .at Appendix JL

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ Xj is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet. reported; or,

[ ] is unpublished.

The opinion of the _

appears at Appendix

court

to the petition and is

[ j reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ j is unpublished.

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was February 11, 2022

[X] No petition for rehearing was timely hied in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:___________

, and a copy of the

order denying rehearing appears at Appendix

t ] An extension of time to file the petition for a writ of certiorari was granted

to and including __

(date) on

(date)

in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ j For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

--------------------------------- - and a copy of the order denying rehearing

appears at Appendix

[ J An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

United States Supreme Court:

Bivens v. Six Unknown, 403 U.S. 388 (1971)

Haines v. Kerner, 404 U.S. 519 (1972)

United States v. Kubrick, 444 U.S. Ill (1979)

United States v. Mitchell, 463 U.S.

Wilson v. Garcia, 471 U.S.

296 (1983)

261 (1985)

Federal Court of Appeals:

Clymore v. United States,

164 F.3d 569 (10th Cir.

Floyd v. United States, 860 F.2d 999 (19th Cir.

Friedman v. Estate, 929 F.2d 1151 (6th Cir.

1988)

1991)

Jenkins v. Weinshienk, 670 F.2d 915 (10th Cir.

Kuhlne Bros., Inc. v. County of Geauga,

1999)

1982)

103 F.3d 516 (6th Cir.

1997)

Okoro v. Callaghan, 324 F.3d 488 (7th Cir. 2003)

13,

Roberson v. Tennessee, 399 F.3d 792 (6th Cir.

2005)

15,

Roopchan v. ADT,

2011)

781 Supp.2d 636 (E.D. Tenn.

Soviero v. United States, 967 F.2d 791 (2d Cir.

1992)

United States v. Albinson, 356 F.3d 278 (3d Cir.

2003)

United States v. Bacon, 546 Fed. Appx. 496 (5th Cir.

United States v. Cardona-Sandoval, 518 F.3d 13 (1st Cir.

United States v. Hall,

269 F.2d 940 (8th Cir.

2008)

1977)

United States v. Martinson, 809 F.2d 1364 (9th Cir.

1987)

202 F.3d 664 (3d Cir. 2000)

United States v. Norwood, 602 F.3d 380 (7th Cir.

2001)

United States v. La Fateh, 565 F.2d 81 (6th Cir.

United States v. McGlory,

10,

2013)

12,

2010)

United States

v. Premises Known, 584 F.2d 1297 (3d Cir.

1978)

United States

v. Price, 841 F.3d 703 (6th Cir.2016)

United States

v. Reed,

United States

v. Roca, 676 Fed. Appx.

782 Fed. Appx. 522 (8th Cir. 2019)

194 (4th Cir. 2017)

United States v. Savage, 99 Fed. Appx. 583 (6th Cir.

United States v. Stevens, 500 F.3d 625 (7th Cir.

United States v. Wilson, 540 F.2d 1100 (D.C.

2009)

2007)

1976)

United States v. Wingfield, 822 F.2d 1466 (10th Cir.

United States v. Wright, 610 F.2d 930 (D.C. Cir.

1987)

1979)

;

State Cases:

Chrisman v. Hill, 978 S.W.2d 535 (Tenn. 1998)

State Statutes:

Tennessee Code Annotated Section 28-3-104

Federal Statutes:

28 U.S.C. Sec.

1346

28 U.S.C. Sec.

1491

28 U.S.C. Sec. 2671-2681

42 U.S.C. Sec.

1983

Federal Rules:

Fed. R. Civ. P. 60

Fed. R. Crim. P. 16

Fed. R. Crim. P. 41

Rule 10 of the Rules of the United States Supreme Court

16,

4, 7, 8, 18

Passim

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. FIFTH AMENDMENT, UNITED STATES CONSTITUTION, provides:

No person shall ... be deprived of life, liberty, or property, without due

process of law ...

No.

IN THE

SUPREME COURT OF THE UNITED STATES

ABRAHAM A. AUGUSTIN

(Your Name)

PETITIONER

VS.

UNITED STATES OF AMERICA

— RESPONDENT(S)

PROOF OF SERVICE

, do swear or declare that on this date,

I, Abraham A. Augustin

Ha-tc-h—1.

, 20.22_, as required by Supreme Court Rule 29 I have

served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding

or that party’s counsel, and on every other person required to be served, by depositing

an envelope containing the above documents in the United States mail properly addressed

to each, of them and with first-class postage prepaid, or by delivery to a third-party

commercial carrier for delivery within 3 calendar days.

The names and addresses of those served are as follows:

Solicitor General of the United States

Department of Justice, Room 5614

QSD

Ppnnwylvania

Avs

Washington. D.C, 20530-0001

I declare under penalty of perjury that the foregoing is true and correct.

Executed on

March 1

20.22

(Sign

INTRODUCTION

This Court has never granted a writ of certiorari to a Fed. R. Crim.

P. 41 proceeding, i.e., a proceeding for the return of property seized by

law enforcement during a criminal investigation,

timing such a motion is usually filed.

That is because of the

If filed during the criminal

proceeding, the motion for return of property is addressed as part of the

criminal proceedings and ruled under the rules of criminal procedures.

If, however, the request is made at the conclusion of the criminal

proceedings, it is considered a civil action in equity requiring the rules

of civil procedures,

For all intents and purposes,

this case was and still

is a civil action in equity.

Due to this Court's lack of guidance in such an action in equity, the

Sixth Circuit has taken a position contrary to law and majority of the

circuits.

The United States and District Court obtained jurisdiction over

Augustin's cash ($15,640) and vehicle--initially seized by the State of

Tennessee during his arrest for state kidnapping—when the United States

obtained federal jurisdiction over the kidnapping that the property was seized

during and used as evidence for.

Moreover,

the federal case agent seized

a U-Haul rental truck consisting of Augustin's personal property during the

federal arrest.

The FBI agent completed the U-Haul towing slip to have it transported

to the local sheriff's impound lot to be held under federal orders with

specific instructions to hold the vehicle and its contents until the FBI

ordered its release.

The U-Haul was eventually returned to the company,

but the contents were never returned to Augustin.

When Augustin filed the

motion for return of property and the district court ordered a response,

the case agent accused Augustin in an affidavit of having requested the

release of the U-Haul's contents to a woman the case agent identified as

Crystal Alford.

Augustin immediately filed a declaration in court

categorically and emphatically denying of ever having made this request.

When Augustin sought the documentary evidence of thi.s; request, none was

provided.

Furthermore, Ms. Alford (the alleged property recipient) was even contacted

by a third party to inquire whether she ever truly received any property

from the FBI or the local sheriff's office.

Ms. Alford was adamant that

she never received any.property and was willing to testify to such facts

in any court.

Augustin informed the district court.

In the face of such facts and denial by the property recipient, the

district court refused to grant Augustin's request for an evidentiary hearing

to determine the property's final outcome, the lower court and Sixth Circuit

ruled Augustin requested the release of: his property to Ms. Alford, denied

the United States had constructive possession of the property, and refused

to grant any relief.

STATEMENT OF MATERIAL FACTS

On December 3, 2009, the Bradley County Sheriff's Office (BCSO) arrested

Augustin for aggravated robbery and. aggravated kidnapping.

Althoughthe

BCSO made the arrest, due to Augustin- being apprehended in the county,

Hamilton County (Chattanooga, Tennessee) issued the arrest warrants.

During

this arrest, the BCSO seized $847 cash from Augustin's wallet, $4,943 cash

from a sports bag, and his BMW 745 LI vehicle.

Augustin had no pending

criminal charges in Bradley County and was immediately turned over to Hamilton

County detectives who transported him to Hamilton County.

On December 4,

2009.

2009, Augustin was given bond, which he posted on December

On December 8, 2009, theU.S. District Court issued an arrest warrant

for Augustin—-as a result of a complaint filed in federal court — for the

very kidnapping offense he had been arrested for on December 3 and posted

bondfor.

On December 9, 2009, Federal Bureau of Investigation Special Agent Wayne

Jackson (SA Jackson)--the author of the complaint—arrested Augustin on the

federal arrest warrant for federal kidnapping. . During this arrest, Augustin's

cash ($9,850) and U-Haiil rental truck with its contents inside were seized

by SA JAckson.

The cash was turned over.to the BCSO.

The U-Haul rental

truck with contents was also given to the BCSO with SA Jackson's intructions

423-265-3601!See

SA JaCkS°"

On December 11, 2009, Hamilton County, the only entity to have charged

gustin with criminal charges, dismissed all charges against him.

Hamilton

County never made any seizures.

All seizures were made solely by the

BCSO

in connection to the kidnapping offense that originated in Hamilton County.

„e ®eiZUr/rlGe\°f

Cash and vehicle^tin

seized on

December 3 and 9

d^cum^telrom'the BrSOdebaJ diSCOTerJreceived no-forfeit ire2009,

be^ng^ouseS L Jta ja?i.

after the Seiz“ras' —" though he was

December^? *2009°™;^ indic;e^ ^ the United States for kidnapping on

PAXII h 3r 1=- was

Augustin appealed his criminal conviction,

This Court denied the appeal

m June 2014.

And Augustin filed his writ of

certiorari

to this Court, which

was denied on October 6, 2014

PROCEDURAL HTSTORY

Augustin was sentenced in federal court on March 10, 2011.

Within months

of sentencing, on December 30, 2011, Augustin

filed a Freedom of Information

(F0I) to the BCSO to inquire the whereabouts of his

seized property.

The

F0I was explainably returned two months later

copy

the

envelope

with

the enclosed rejected F0I

q__

Provided

Appendix

the

initial

Appellant

brief on appeal.

See Appendix C_ Attached to this writ.

Thjn- on January 17,

2012, during to his appeal in the Sixth Circuit

■1^

UU187 CLC-SKL, Doc.

156-1, Page ID 1488.

his state charges."

see Case No. 1:09-crSee Attached Appendix D.

None of these filings brought any response.

Thus, years later, a second

request for information

u c3S “^ied t0 the Cleveland City Hall on November

25, 201 S «t ion ru

Crtmfi Sail N„"h7^5

^58SX3^9/C^la"‘‘' ™ 373“-

The following year, a third re^uesf“sailed1 ft

Saa

e^nYciSy^n^ ‘

Certify Mail No. 7014 2120 0004 1702 5794) and the BCSO at 22Q?i

••

onejuly/5le2016,'d’ThN

(Certified Mail N°- 701^ 2120 0004 1702 5787)

at the sheriff's of f ice^" Jy'n ^2^6?“" ^ Card "aS si*ned b? "J- >Ucks"

But no response was ever provided.

Eight months after filing his writ to this Court, on June 29, 2015,

Augustin filed his first

n- ^ root ion for return of property.

(Motion R. 139;

Page ID 1296).

he District Court never ruled on this motion.

Therefore, on September 15, 2015, Augustin filed a Fed.

R. Crim. P. 41(g)

motion for the return of his property.

Doc. 143.

The government responded

on November 12, 2015.. Doc. 152.

The government's response- was evasive,

ambiguous, and blamed the BCSO for the illegal forfeiture of Augustin s

property.

Attached to this response was.an affidavit from SA Jackson accusing

Augustin of having requested the release of his property to Crystal Alford.

On December 8, 2015, Augustin sought discovery and submitted a declaration

opposing SA Jackson's affidavit..

On. February 3, 2016, Doc. 168, Augustin

filed a motion to the district court to compel evidence.

The Court ignored

A year later, wanting to utilize the Fed. R. Civ. P., Augustin

the motion.

185, 186,

re- submitted the motion for discovery on February 7, 2017, Docs.

The district court ignored those motions.also.

187, 188, and 189.

On October 24, 2018, Augustin filed for summary judgment.

That motion

was also ignored.

The next month, on November 30, 2018, Augustin filed a

fourth F0I request to the BCSO.

See Certified Mail No. 7017 0530 0001 1315

2738.

Due to the district court's history in ignoring all motions filed,

Augustin filed a writ of mandamus to the Sixth Circuit on December 11,2018.

See No. 18-6290.

On February 23, 2019, Augustin finally received an answer from the BCSO’s

attorney: Four pieces of documents in the BCSO's records showing SA Jackson

instructing the BCSO to seize and "Hold" the U-Haul rental truck with its

contents.

One document shows Jackson completing the U-haul's Vehicle Tow

Slip to have it towed from the arrest scene to the BCSO impound lot.

Jackson signed his name above the stipulation "THE UNDERSIGNED ACCEPTS

See Exhibit

RESPONSIBILITY FOR THE ABOVE DESCRIBED VEHICLE AND ITS CONTENTS."

E of Doc. 252—Rule 60(b).

See attached Appendix H.

On April 5, 2019, the District Court was "INVITED to respond to the

mandamus petition ..." Also on the same day, the District Court ORDERED

the government to "file a response to the motion within ten days from the

date of this order." Doc. 228.

On April 15, 2019, AUSAs Christoper Poole

and Gretchen Mohr filed two separate responses to the writ.

And on April

19, 2019, the District Court, without a hearing, ruled: (1) The properties

seized from Petitioner were not included in the superseding indictment in

the case; (2) there is no evidence of record showing that the properties

in question were ever in the possession of the federal government; (3) because

the United States was not in possession of the properties at the time

petitioner filed this motion , and because the government has never been in

possession of the properties , it is not the appropriate party from which

The District Court DISMISSED the petition.

to seek the properties' return.

On January 19, 2020, the Sixth Circuit

Augustin appealed the decision,

A Petition for Rehearing to the Sixth

affirmed the lower court's decision.

Circuit and a writ of certiorari to this Court were filed and denied.

January 31, 2010, Augustin filed the Fed. R. Civ. P. 60(b), Doc. 252, and

introduced the newly discovered evidence received from the BCSO's attorney.

On June 17, 2020, the District Court denied the Rule 60(b). Doc. 274.

And on February 11, 2022,

June 26, 2020, Augustin timely filed his appeal,

the Sixth Circuit affirmed the district court's decision.

SUMMARY OF ARGUMENT

I. The Sixth Circuit erroneously denied the United States was

constructive possession of the cash and vehicle—that were evidence of and

seized during the investigation of a case prosecuted in federal court--and

the U-Haul rental truck (with its contents) it personally seized and

instructed the BCSO to hold.

Unlike cases where criminal charges are split

between the government and the state, and it is hard to determine the entity

responsible for the seized property, the State never prosecuted nor convicted

Augustin o!f any criminal offense.

The criminal investigation—during which

property was seized—-was acquiesced to the United States for prosecution.

The State turned over all evidence seiked during its criminal investigation

of the kidnapping (including, but not limited to,

witness statements,

reports,

firearms, ammunition,

etc.) except the cash and vehicle similarly

seized by the BCSO and on the same day as the firearms.

The United States

was in constructive possession of all said property even though the BCSO

held the property,

And the district court had ancillary jurisdiction over

the seized property.

II. The Sixth Circuit erroneously denied relief simply because the government

was no longer in possession of the property.

Majority of the circuits have

commented and opposed this position as it created the incentives for the

seizing agency to seize property and quickly (and illegally) dispose of the

property since the lack of possession of such property alone will defeat

the Rule 41.

III. The Sixth Circuit erroneously denied the district court's four-year

delay to adjudicate the Rule 41 caused prejudice and contributed to the

property's unknown whereabouts or destruction.

And considering the first

request made regarding the property was made to the Sixth Circuit in early

2012,

the motion's denial in 2019 is actually a seven-year delay.

matter been adjudicated in 2012 as initially sought,

likely the property could.have been returned.

Had this

then it is more than

ARGUMENT

I. PROPERTY SEIZED DURING A CRIMINAL INVESTIGATION THAT IS ACQUIESCED TO THE

UNITED STATES AND ALSO USED AS EVIDENCE TO CONVICT IN FEDERAL COURT IS WITHIN

THE CONSTRUCTIVE POSSESSION OF THE UNITED STATES, EVEN WHEN THE UNITED STATES

AGENT HOLD THE PROPERTY. AND PROPERTY THAT THE UNITED STATES INSTRUCTS THE

STATE TO SEIZE AND HOLD IN STATE CUSTODY IS SIMILARLY. WITHIN THE CONSTRUCTIVE

POSSESSION OF THE UNITED STATES, EVEN WHEN THE UNITED STATES AGENT HOLD THE

PROPERTY. WHERE AUGUSTIN SOUGHT THE RETURN OF THE PROPERTY, THE SIXTH CIRCUIT

ABUSED ITS DISCRETION IN DENYING THE UNITED STATES WAS IN CONSTRUCTIVE

POSSESSION OF THE PROPERTY..

1. Standards of.review.

Undoubtedly., the,. cash and vehicle were seized by the State during its

criminal investigation, of the state-orlginated-kidnapping offense that was

acquiesced to the United States.

A) Ancillary jurisdiction over property through federal indictment.

The Sixth Circuit erred , when it jrefused to find the district court had

ancillary jurisdiction over the seized property based on the facts.

The Tenth,

D.C., and Third Circuits have defined, ancillary jurisdiction as:

District Courts have jurisdiction to enter orders ancillary to a criminal

proceeding concerning disposition of materials seized in connection with

the criminal investigation of a case. United States v, Wingfield, 822 F.2d

1466, 1470 (10th Cir. 1987). Ancillary jurisdiction derives from the notion

that a .federal court acquires jurisdiction of a case or controversy in its

entirety. Jenkins v. Weinshienk, 670 F.2d 915, 918 (10th Cir. 1982).

The Tenth Circuit has ruled that in such circumstances "the district court

does have jurisdiction to enter an order concerning the disposition of seized

property in its control."

Wingfield, 822 F.2d at 1470.

Other courts have

held that in such circumstances a district court "has both the jurisdiction

and the duty to ensure the return of such property."

United States v. Wright,

197 U.S. App. D.C. 411, 610 F.2d 930 (D.C. Cir. 1979), citing United States

v. Wilson, 176 U.S. App. D.C. 321, 540 F.2d 1100 (D.C. 1976); United States

v. Premises known as ,608 Taylor Avenue, 584 F. 2 d 1297 (3d Cir. 1978); United

States v. La .Fateh, 565 F.2d 81, 83 (6th Cir. 1977), cert denied,435 U.S.

971, 98 S. Ct. 1611, 56 L. Ed. 2d 62 (1978).

Additionally, the seized property was included as evidence in the federal6

kidnapping discovery submitted by the United States.

Crim. P.

According to Fed. R.

16, the inclusion of the photograph of the vehicle, seizure notices.

of the cash seizures, and property inventory receipt documentation of the

‘

’

• *'

U-Haul rental truck in Augustin's discovery is the requirement of "books,

papers , documents,. photographs,

tangible objects,

building or places,

or copies

or portions thereof, which are within the possession-, custody of control of

the government, and which are material to the preparation of the defendant's

defense or are intended for use by the government as evidence in chief at

the trial,, or were

Crim. P.

obtained from

or 'belong to

the defendant."

Fed. R.

16(a)(1)(C).

Furthermore,, at trial,

the BMW vehicle's search warrant affiant, BCSO

Detective David Shoemaker,

testified‘‘that''approximately’ four days after

Augustin's arrest and vehicle

seizure:

Chattanooga P.D. came back to me and asked that if I could write a search

warrant for the BMW, since it was still parked at our forensics bay.

And

I did that.

Trial Tr. P. 399 L.

17-20; Case 1:09-cr-00187, Doc.

122 Page ID 1009.

The search warrant for the BMW vehicle was issued on December 7,

at 2:23 PM by a Bradley County judge.

2009,

A copy of this search warrant and

photograph of the vehicle (and DNA evidence obtained during the search) were

included in the federal discovery.

And during his closing argument at trial, AUSA Poole stated:

Does a simple drug user spend $4,000 on drugs, get caught and arrested by

the police the next day with another,, combined between the two of them

almost $20,000; then make bond of $140,000, and get caught with $18,000

two days later?

Trial Tr. P. 548 L-. 4-8; Doc.

123, Page ID 1158.

B) FBI's1 instructions to BCSO to seize property created federal possession.

In early 2019, the BCSO attroney provided additional evidence that confirmed

the government had exercised authority and control over the seized property,

Take for example, the Rule 60(b) (Doc.

252), Exhibit E,

in which SA Jackson

personally completed and signed the. U-H,aul vehicle, tow slip the day of the

federal arrest of Augustin to have the vehicle towed to the BCSO impound lot

to be searched by the FBI.

This Court is asked to notice SA Jackson’s

signature above the following words:

THE UNDERSIGNED ACCEPTS ^RESPONSIBILITY FOR THE -ABOVE DESCRIBED VEHICLE &

ITS CONTENTS.

See

attached Appendix II.

Also notice in the Rule 60(b) appendices, Doc. 252, Appendix G, SA Jackson's

instructions to the BCSO that the "REASON IMPOUNDED:

to be searched by the

FBI—Do not release w/o (sic) calling S/A Jackson."

See Appendix J.

And notice in the same Rule 60(b) appendices, Doc.

252, Appendix F, the

BCSO's compliance with SA Jackson's instructions quoted above when it

confirmed: "U-HAUL TRAILER WILL BE RETURNED UPON APPROVAL OF W. JACKSON, FBI,

423-265-3601."

This Court is further directed to look directly below that

last statement in the appendix at the fact the identity of the person the

property was "RELEASED TO" is blank.

See Appendix

In the face of such overwhelming evidence, the United States submitted

an affidavit by SA Jackson accusing Augustin of having requested the release

of his property and provided no evidence to support,

Augustin immediately

opposed this perjured affidavit with a declaration naming two attorneys—his

attorney and codefendant's attorney—who both witnessed Augustin denied SA

Jackson's request to be given possession of the property around the exact

time the affaint alleged Augustin made this request,

The affiant never even

identified what channel Augustin was to have used to make this request.

Considering Augustin was incarcerated in Cleveland, Tennessee—approximately

30 miles from the closest FBI's office and federal court located in

Chattanooga—any such request would have to-be made through his then-attorney

(Public,Defender Anthony Martinez) or some form of written and mailed

correspondence, a record of that would exist.

The district cburt refused to conduct and evidentiary hearing to inquire

from counsel or request SA Jackson provide evidence of this alleged

request.

Additionally, the property form—required' by all county jails before the

release of an inmate s property—that Augustin would have had

to sign to

authorize the release of his property and identify the property recipient

did not exist.

The property form that the property recipient would have

had to sign to document the receipt of the property also did not exist.

Furthermore,

recipient,

through a third party, Augustin was informed that the property

identified by the affiant as Crystal Alford,

stated she never

received any property from the FBI nor BCSO (nor was she ever contacted

regarding this matter) and would testify in any court to such facts.

Augustin

notified the district court of this fact and sought an evidentiary hearing..

The district court denied the request, ignored Augustin's declaration and

chose the government s perjured affidavit as truth, and ruled Augustin had

indeed requested the release of his property.

Several circuits have provided guidance how a district court in Augustin's

case—where the government is alleging the release of

property without any

documentary evidence to support—should proceed,

The First Circuit, uniting

with the Second, Third, and Seventh Circuits, has ruled:

enial of a Fed. R. Crim. P. 41(g) motion for return of property based

on the Government's bare assertion that it no longer retains possession

of the property is error.

The U.S. Court of Appeals for the Seventh Circuit

has noted that arguments in a government filing are not evidence.

The

U.S. Court of Appeals for the Third Circuit has held'

that

federal

district

court must determine what happened to

property requested under Rule 41(g)

but not returned.

^ ^ concludes that the government's actions were not

proper, it must determine what remedies are available.

The U.S. Court

Appeals for the Second Circuit has noted that the Drug Enforcement

Administration (DEA) is presumed to keep records of the properties it seizes

under the Dept. of Justice regulations found at 41 C.F.R. Sec.

1-^8-50.101.

With these records at hand, it should be a simple matter for

the Government to establish on remand what property was seized and how

that property was disposed of:

According to the Second Circuit, an

assertion that the DEA has returned the property to a defendant's designee

is inadequate to support a district court's denial of a Rule 41(g) motion.

United States v. Cardona-Sandoval.

518 F.3d 13,

16-17 (1st Cir.

2008).’

The Sixth Circuit's position that the property was released solely because

the government said it was is dangerous and pernicious.

This position

encourages federal law enforcement to,seize property and claim it.was

released—even though the records contradict this, then the courts will deny

relief because of the government's allegations.,

The Third Circuit recognized this danger and required the.district court

to conduct an evideintiary hearing.

We provided more specific guidance on the scope of this evidentiary hearing

inquiry in United States v. Chambers, 192 F.3d 374 (3d Cir. 1999).

that case, petitioner Chambers filed a Rule 41(g) motion for return of

Id,, at 375.

The

property seized by the government during his arrest,

government argued Chambers' motion was moot because it no longer retained

possession of the seized property.

Id.

The district court agreed, and

denied Chambers' motion based on representations by the government that

the property at issue had been forfeited, repossessed, returned or

Id. We reversed on appeal,

destroyed, and.therefore could not be returned,

concluding that the "government pan not defeat a properly filed motion

for return of property merely by stating that it has destroyed the property

or given the property to,, third, parties."

Id. at 377.

Rather, "the

government must do more than state, without documentary support, that it

no longer possesses the. property at issue."

Id. at 377-78.

United States v. Albinson,

356 F.3d 27-8,

281 (3d Cir. 2003).

Allowing the government to defeat a Rule 41(g) motion simply by asserting,

that it no longer retains possession of the property would frustrate the

purpose of the Fed. R. Crim. P. 41(g) evidentiary inquiry set forth in

Chambers.

Id. at 283.

The Fourth Circuit instructs a district court facing the dilemma of an

agent alleging he gave away to a third party a defendant's property in his

constructive possession, especially when the defendant has exposed the agent's

perjury:

If a disputed issue of fact exists "relating to the status of the property

or what happened to it," then the court should hold an evidentiary hearing

to determine the chain of custody.

United States v. Roca, 676 Fed. Appx.

Albinson,

194,

195 (4th Cir.

2017) (citing

356 F.3d at .284).

In a case very similar to Augustin's, the Seventh Circuit, uniting with

the Third Circuit, stated:

Here, the district court received no evidence regarding the government’s

possession of the property Mr. Stevens sought to recover.

The court stated

simply that it agreed with the government's arguments in its brief.

However, arguments in a government brief, unsupported by documentary

evidence, are not evidence.

See Campania Mgmt. Co.’ v. Rooks, Pitts & Poust,

290 F.3d 843, 853 (7th Cir. 2002) ("It is universally known that statements

of attorneys are not evidence."); see also United States v. Albinson, 356

F.3d 278, 281 (3d Cir. 2004) ("The government must do more than state,

without documentary support, that it no longer possesses the property at

issue."

(citing United States v. Chambers, 192 F.3d 374, 377-78 (3d Cir.

1999)) .

As such, the district court failed to receive evidence to support

its factual determinations as required by Rule 41(g).

United States v. Stevens, 500 F.3d 625, 628-29 (7th Cir.

2007).

The Tenth Circuit has also addressed the issues in this case and found

constructive possession:

Apart from principles of equity, however, there are some limited

circumstances under which Rule 41(e) can be used as a vehicle to petition

for the return of property seized by state authorities.

Those circumstances

include actual federal possession of the property forfeited by the state,

constructive federal possession where the property was considered evidence

in the federal prosecution, or instances where the property was seized

by state officials acting at the direction of federal authorities in an

agency capacity.

Clymore v. United States, 164 F.3d 569, 571 (10th Cir.

1999).

Property seized and held by state-law-enforcement officers is not

in the constructive possession of the United States for Fed. R. Crim. P.

41(g) purposes unless it is being held for potential use as evidence in

a federal prosecution.

Absent such potential use, the United States has

no interest in the property.

Id.

Undoubtedly,

property.

the United States was in constructive possession of . t{ie

And Augustin's Fifth Amendment of the U.S. Constitution was

violated. The property was used as evidence and seized at the FBI's behest.

For the district court to grant the motion, however, the federal government

must have itself possessed the property at some point.

United States v. Price, 841 F.3d 703,

707 (6th Cir. 2016).

This Court should grant certiorari due to the Sixth Circuit Court of

Appeals having entered a decision in conflict with the decision of other

United States court of appeals (namely, the First, Second, Third, Fourth, D.C.,

Seventh, and Tenth Circuits) on the same important matter; and has so far

departed from the accepted and usual course of judicial proceedings, and

sanctioned such a decision by a lower court, as to call for an exercise this

Court's supervisory power.

Rule 10(a) of the Rules of the Supreme Court

of the United States.

II. A RULE 41 MOTION FILE!) AT THE CONCLUSION OF THE CRIMINAL PROCEEDING IS

A CIVIL ACTION IN EQUITY, THEREBY, GIVING A DISTRICT COURT PANOPLY POWER

TO GRANT RELIEF.

WHERE THE UNITED STATES AND/OR ITS AGENT ILLEGALLY FORFEITED

AND DISPOSED OF PROPERTY IN ITS POSSESSION , THE SIXTH CIRCUIT ABUSED ITS

DISCRETION IN RULING NO RELIEF COULD BE GRANTED SIMPLY BECAUSE THE- PROPERTY

WAS NO LONGER IN POSSESSION, ;WHEN IT FAILED TO ORDER THE UNITED STATES AGENT

TO RETURN THE PROPERTY, AND/OR ALLOW AUGUSTIN TO AMEND HIS PETITION FOR

ALTERNATIVE CLAIMS.

1. Standards of review.

Since the government was in constructive possession of the property,

Sixth Circuit was to grant some form of ielief.

However,,

the

the Circuit insisted

since the government no longer1 possessed the property (contradicted by the

documentary evidence of the United States agent

the BCSO, shov'ing the U

Haul contents were never released), no relief could be granted.

erroneous.

That is

If the government's agent possess the property, the government

possess the property.

Coupled with the fact the Rule 41(g) proceeding is a civil action in

equity, the court had planery power to grant relief.

A Rule 41(g) motion is treated as a civil action in equity when the owner

of the property invokes the rule after the conclusion of the criminal

proceedings against him.

United States v. Savage, 99 Fed. Appx.

583, 584' (6th Cir. 2009).

A) The Rule 41(g) motion should be construed for alternative claims.

The Second Circuit, uniting with the Ninth Circuit, has

held;

Noting that Rule 41(e) proceedings are equitable in nature, some circuits

have concluded (or at least strongly suggested) that federal courts may

award money damages, pursuant to their inherent power to afford adequate

relief, when the moving party is entitled to the return of property the

government has lost, destroyed, or transferred,

See Soviero v. United

States, 967 F,2d 791, 792-93 (2d Cir. 1992); Mora

______________

v. United States, 955

F.2d 156, 161 (2d Cir. 1992); United States v. Martinsan, 809 F.2d 1364,

1368 (9th Cir. 1987).

The Third Circuit has emphasized the importance of the evidentiary hearing

by noting that, "depending on what is adduced through the evidentiary inquiry,

amendment may be particularly appropriate on the facts of th(e) case."

Albinson,

356 F.3d at 289 n.9.

The allegations of a pro se litigant are generally held to a "less stringent

Mitchell v. Horn,

standard" than formal pleadings prepared by a lawyer.

318 F.3d 523, 529 (3d Cir. 2003) (citing Haines v. Kerner, 404 U.S. 519,

Fed. R. Crim. P. 41(g)

520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)).

motions are civil in nature, and should be treated as a "civil complaint."

Therefore,

United States v. McGlory, 202 F.3d 664, 670 (3d Cir. 2000).

a pro se Rule 41(g) motion should be liberally construed to allow the

"Affirming the denial (of a pro se Rule

assertions of alternative claims.

41(e) motion) without leave to amend would have the same effect as a Rule

12(b)(6) dismissal of a pro se complaint," which are generally disfavored.

Pena v. United States, 157 F.3d 984, 987 (5th Cir. 1998) (reversing

dismissal of pro se petitioner’s Rule 41(g) motion without leave to amend

to state a Bivens action).

The Fifth Circuit also takes the same position;

A defendant's "claim--that the government wrongfully deprived him of his

property and destroyed it—alleges facts that could support a Bivens claim,

see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S, Ct. 1999, 29

L. Ed. 2d 619 (1971).

Pena v. United States,

157 F.3d 984. 987 (5th Cir.

1998).

Like Pena, Bacon, a pro se litigant, did not have the opportunity to amend

his pleading under Rule 15(a).

In such a situation, It is appropriate

to treat pro se petition as one seeking the appropriate remedy.

Clymore

v. United States, 217 F.3d 370, 373 (5th Cir. 2000).

Therefore, we treat.

Bacon's claim as one seeking damages under a Bivens claim for the alleged

due process violation with regard to his destroyed property.

United States v. Bacon,

546 Fed. Appx. 496, 499-500 (5th Cir.

2013).

The Seventh Circuit, in turn., proposed a relevant question and answer;

But what if relief under Rule 41(g).is sought against individual officers

rather than against the United States, because the government has disposed

of the property to them (or maybe they never turned it over to the

government)? Then the issue of sovereign immunity falls away and the

question becomes whether Bivens offers the exclusive route to a suit against

the officers or whether the Rule 41(g) is available since the relief sought

is in the nature of restitution.

Although Bivens is constitutionally

described as providing a damages remedy ,.. what it really does is create

a right of action against individual federal officers for violation of

constitutional rights; it does not truncate the remedies available.

would be odd to be able to proceed by way of Bivens if one sought damages

yet be remitted to Rule 41(g) if one sought restitution.

Okoro v. Callaghan, 324 F.3d 488, 491 (7th Cir.

2003).

Since in the usual case the only relief sought by Rule 41(g) motion is

return of property by the government, the fact that the government doesn't

But

have it is ordinarily a conclusive ground for denial of the motion.

an action for the return of property is'necessarily directed against the

custodian.

If the federal government's agents have secreted or sold the

property that they unlawfully seized while exercising investigative powers

with which the government had clothed them, the owner of the property is

entitled to seek the return of the property or its proceed from them.

Otherwise the government could defeat a motion under a Rule 41(g) simply

by transferring the property to one of its agents.

It is no answer that

if they hold it as the agents of the government and the government is

ordered to return it, they must return it.

Of course, they must.

Id. at 491-92,

The Seventh Circuit has consistently ruleci that when a district court

conducting a Fed. R. Crim. P. 41(g) proceeding learns that the government

no longer possesses the property that is subject of motion to return, the

court should grant movant (particularly movant proceeding pro se) opportunity

to assert alternative claim for money damages; pro se Rule 41(g) motion should

be liberally construed to allow assertion of alternative claims.

States v. Norwood,

602 F.3d 380 (7th Cir. 2010).

United

In Norwood, although the

district judge denied defendant's motion for restitution against the

government for value of property taken from him that was not returned

(property had no relation to any crime or conviction) because Rule 41(g)

did not authorize monetary relief, case was remanded to the district court

for purpose of deeming motion as civil complaint and determining if defendant

were to assert either Bivens claim against federal officers and/or 42 U.S..C.

Sec.

1983 claim against state officers, whether claims would relate back,

and whether claims would have been otherwise barred.

Id.

The Eighth Circuit also supports this position:

We conclude, however, that as to items which were not forfeited but were

no longer in the government's possession, the district court should have

afforded Reed an opportunity to assert an alternative claim for damages.

See United States v. Hall, 269 F.3d 940, 943 (8th Cir. 2001) (addressing

Rule 41(g) predecessor, Rule 41(e); sovereign immunity bars money damages

for destroyed property under Rule 41(e) but proceeding is not moot; "when

a district court in a Rule 41(e) proceeding learns that the government

no longer possesses property that is the subject of the motion to return,

the court should grant movant ... an opportunity to assert an alternative

claim for money damages" such as under the Tucker Act or Federal Tort Claims

Act) =

United States v. Reed,

782 Fed. Appx, 522, 523 (8th Cir. 2019),

In regards to the Tucker Act,

28 U,S.C; Sec.

1491, the Little Tucker Act,

28 U.S.C. Sec. 1346( a) (2) , and the Federal Tort Claims Act, 28 U.,S.C. Secs.

2671 to 2681, the Eighth Circuit stated:

A cause of action may accrue under one or more of these statutes when the

government discloses that it has lost, damaged, or transferred property

that would otherwise be subject to a Rule 41(e) order to return.

If such

a cause of action has accrued, the government's sovereign immunity from

an award of money damages may well be waived.

See United States v.

Mitchell, 463 U.S., 296, 77 L, Ed. 2d 580, 103 S, Ct, 2961 (1983).

United States v, Hall,

269 F,3d 940, 943 (8th Cir.

2001).

The Sixth Circuit has refused to allow Augustin tb ‘amend, eveii claiming,

it would have been futile since the one-year statute of limitations (for

a Sec..

1983 or Bivens claim) would have expired.

That's erroneous.

record of this case show upon seizing his property,

The

the State never served

Augustin any forfeiture documents and thus forfeited his property without

due process.

Even more relevant to this point is that Augustin never had

any knowledge the cash and vehicle had been forfeited without due process

since he was never served any forfeiture warrants nor forfeiture orders.

Augustin filed numerous FOIs to the State that were all ignored.

The

State suppressed all documentary evidence of the property's whereabouts.

And the contents of the U-Haul that SA Jackson instructed the BCS0 to hold,

the record in this case support, is still in the custody of the BCS0 or it

disposed of the contents in a manner that no records can account,

The first

evidence Augustin received about the property was from the U,S. Attorney's

Office during its response to the Rule 41(g).

Any statute of limitations

should begin on November 2015 when Augustin received notice of his injury.

For a Bivens or Sec. 1983 claim, the governing statute of limitations is

provided by the law of the state in which the suit is brought.

v. Tennessee,

399 F.3d 792,

471 U,S. 261,

275-76,

Roberson

794 (6th Cir, 2005); see also Wilson v, Garcia,

105 S. Ct.

1938, 85 L. Ed.

2d 254 (1985).

Tennessee

law provides a one-year statute of limitations for civil actions brought

under federal rights statutes.

Tennessee Code Annotated Section 28--3-104 (a)

(3); Roberson, 399 F.3d at 794.

However,

for a Bivens or Sec. 1983 claim,

the date on which the statute of limitations begins to run is a question

of federal law.

Kuhnle Bros., Inc, v. County of Geauga,

(6th Cir,

Under federal law, the statute of limitations accrues when

1997).

103 F.3d 516, 520

the plaintiff knows or hasreason to know of the injury that forms the basis

of his action.

Id.

Additionally, wrongful concealment by authorities also tolls the statute

of limitations.

Wrongful concealment can be determined by analogy to cases

in the Sixth Circuit dealing with fraudulent concealment,' the presence of

which bars a defendant from asserting the■statute of limitations as a defense.

Under Tennessee law, the tort of fraudulent concealment, also known as

constructive fraud, occurs when

a.party who has a duty to disclose a known fact or condition fails to do

so, and another party reasonable relies upon the resulting

misrepresentation, thereby suffering Injury.

. ■

Roopchan v. APT Sec. Inc..

781 Supp,2d 636, 650 (E.D, Tenn 2011) (quoting

Chrisman v. Hill Home Dev.. Inc■.

978 S.W.2d 535. 538-39 (Tenn.

Under the discovery rule, a Sec.

1998)).

1983 or Bivens claim accrues when the

plaintiff "knew or should have known of the injury which is the basis of

his Bivens claim."

Cir.

1991).

Friedman v. Estate of Presser, 929 F.2d 1151,

1159 (6th

Once the plaintiff knows "he has been hurt and who has inflicted

the injury," the claim accrues..

122, 100 S. Ct, 352, 62 L. Ed.

United States v. Kubrick, 444 U.S.

Ill,

2d 259 (1979),

The 'date the claim began .was on November 12, 2015, two months after filing

his Rule 41(g) motion,

Therefore, any alternative claim would have been

timely,

B) The property could have been substituted,

Regarding the substitute property issue, the Sixth Circuit and others

have held that money damages are not available via Rule 41(g) motion when

the property has been destroyed,

The District of Columbia Circuit, however,

held that depositing the actual seized cash into the Court's bank account

did not preclude return of the seized cash,

Cir. 1976).

Wilson, 540 F.2d 1100 (D.C,

That Circuit held that "whoever holds the money holds it subject

to the order of the federal court and is subject to its judgment and the

execution thereof,"

Wilson,

supra

at 1104.

In the instant case, Augustin itemized the property to be returned by

attaching the very documents the government used to document the seizure.

Cash items included $9,850.00, $7,829.00, $840.00 in United States Currency.

Motion, R..

139, Page ID 1303.

These cash items are fungible and there is

no reason that a payment catnnot be made by whichever agency converted those

funds to their own use.

Id.

The BMW was listed as a black 2003 BMW 745 LI,

If this vehicle was sold at auction, then the amount of cash it brought

in to the police agency would be substitute property.

Payment to Augustin

he amount it was sold for (net) would not result in the payment of money

damages but would simply be a substitute for the property,

If, for example,

the BMW was worth $90,000 but sold for $30,000.00 at auction, paying the

$30,000,00 would not be damages.

vehicle.

It would simply be a substitute for the

Ordering the government to pay the difference would be damages.

The .same would hold true for all the items listed by Augustin.

C) The district court could have ordered the BCS0 to return the property.

And if somehow, the court was to have differentiated between the United

States and its agent

then the court could have ordered the BCS0 to return

the cash. U-Haul contents still in its possession, and pay the auction value

of the BMW.

III. AUGUSTIN FILED HIS FIRST FILING REGARDING HIS PROPERTY IN A LETTER TO

THE SIXTH CIRCUIT DURING HIS DIRECT APPEAL IN 2012, WHICH WAS IGNORED. HE

FILED HIS FIRST PETITION FOR THE RETURN OF PROPERTY JUST EIGHT MONTHS AFTER

HIS WRIT TO THE U.S. SUPREME COURT WAS DENIED. THE DISTRICT COURT IGNORED

THE MOTION. WHERE AUGUSTIN FILED A SECOND MOTION THREE MONTHS LATER AND

THE DISTRICT COURT WAITED NEARLY FOUR YEARS TO ADDRESS ITS CLAIMS, THE SIXTH

CIRCUIT ABUSED ITS DISCRETION FOR THE UNSEASONABLE DELAY THAT CAUSED OR '

CONTRIBUTED TO THE DESTRUCTION OR UNKNOWN WHEREABOUTS OF THE PROPERTY.

1. Standards of review.

Just ten months after his sentencing and filing of notice appeal, believing

his case to now be in the court of appeals, on January 17, 2012, Augustin

filed a letter to the Sixth Circuit that was docketed as:

CORRESPONDENCE: Letter requesting that the Federal Courts help him get

the answers to what happened to all of his confiscated property; and

questions regarding his state charges.

Doc. 41 in Sixth Circuit Court of Appeals Docket No. 11-5357; see Case 1:09cr-00187-CLC-SKL, Doc. 156-1, Page ID 1488,

See attached Appendix ]).

Even though Augustin was represented by counsel, less than a year from

sentencing, this record shows Augustin was actively pursuing the return of

his property even in the midst of having no information as to what had

happened to his property and state charges.

The month before filing this

letter to the court of appeals, Augustin had filed a FOI to the BCSO... to

obtain the answers he was seeking from federal court--that was unexplainably

returned by the sheriff with no information provided for the reason of the

rej ection.

The postmark date on the envelope from the BCSO Sheriff T. Hammons

was February 3, 2012, as the FOI was enclosed and returned in an official

envelope from the sheriff.

Appellant Brief.

A copy of this evidence was attached to the

This evidence is reattached to this writ as Appendix (5.

After renewing this FOI multiple times throughout the coming years, finally

seven years after the first request, the BCSO provided some information on

February 23, 2019, that made up the newly discovered evidence introduced

In the Rule 60(b).

See attached Appendix 15 to this writ.

Augustin never received any documents from the State nor sheriff's office

regarding his criminal charges (he had been out on bond for when arrested

by the United States)t

plus he was never taken to his state-court arraignment

where he would discover years later all his state criminal charges had

suddenly and unexplainably been dismissed during his absence.

And he received

no forfeiture warrant nor forfeiture order from the State regarding the

forfeiture proceedings of all his property.

The only thing Augustin knew

for sure back then was that all the documents he possessed regarding his

confiscated property were provided in the federal discovery used to prosecute

and convict him in federal court.

All his confiscated property--which are

the subject of the Rule 41(g)—-was used as evidence at his trial.

Needless to say* this CORRESPONDENCE on January 17,

2012 was ignored by

Augustin's counsel,

the district court, and brought no response from the

court of appeals.

Could this correspondence been construed as a plea for

the return of property?

And if so, how might addressing the return of

property back in 2012 might have impacted this case?

Following Augustin's direct appeal denial in June 2014, he sought a writ

to this Court that was denied on October 6,

on June 29,

2014,

Just eight months later,

2015, Augustin filed his motion for return of property,

When

the district court docketed but ignored the motion, Augustin refiled the

motion on September 15,

2015,

Then the district court refused to rule on

the motion, after the government's response and Augustin's reply were filed

•

seeking discovery, until Augustin was forced to file a writ of mandamus.

Once the court of appeals ordered the district court to make a ruling, only

then did the district court finally acted.

From the record,

one can assume if the writ of mandamus was never filed,

Augustin's Rule 41(g) would still be pending in the district court.

Nevertheless,

after delaying the ruling for four years,

the district court

ruled against Augustin stating since the government no longer possess the

property, no relief could be granted.

In delaying its ruling for four years, instead of a sp,eedy adjudication

that could've given Augustin other options to seek relief, the district court

strung Augustin along in hope of relief while the statute of limitations for

seeking relief from the State for civil rights violations (Tucker Act, Bivens

Claim, Sec.

1983, or Federal Tort Claim) have expired,

with no other

leaving Augustin;today

available remedy but for the district court to allot/

his pro se Rule 41(g) motion—being civil in nature—to be treated as a "civil

complaint."

McGlory,

20.2 F. 3d at 670

Since it is now known that the government fabricated the account of Augustin

having requested the release of h^s property, especially to Crystal Alford,

since the record of the government agent holding the property revealed the

property was never released to anyone,

the district court's delay prejudiced

Augustin from discovering the property's final outcome.

The longer the court

waited, the more the chances increased of officers forgetting the outcome

of the property, paperwork getting lost, etc., or whatever other excuses the

government and its agent can conjure to escape liability.

Finding a petitioner's lack of available remedy, except a Rule 41(g) motion,

the Tenth Circuit ruled that in spite of the government's contention that

former Rule 41(e) claimant failed to pursue 4 available remedies at law,

claimant had no adequate remedy at law which would have required dismissal

of his motion under former Rule 41(e).

(10th Cir.

Floyd v. United States, 860 F.2d 999

1988).

CONCLUSION

Augustin asserts the United States was in constructive possession of the

property, the Sixth Circuit failed to substitute the property and grant other

available relief, and the four-year delay tremendously prejudiced Augustin.

It is time for this Court to resolve and establish the proper procedures the

lower courts in the nation are to follow in adjudicating a petitioner's motion

for return of property,

The lack of this Court's guidance has caused inter-

circuit split on the proper procedures and remedy.

The Sixth Circuit's decision in this case will become controlling precedent

in the circuit to incentivize federal law enforcement to seize property or

order the state to seize property, dispose of the property in some

undocumented way without 'the claimant's consent,

then accuse the claimant

of having requested the release of his property, and the court will deny

an evidentiary inquiry and relief based on' the government's version of events

and allegations that it no longer possess the property,

The district court

should have at least granted an evidentiary hearing to determine the stillunknown disposition of' the U-Haul contents.

RELIEF REQUESTED

WHEREFORE, Augustin respectfully requests this Supreme Court to grant

certiorari to resolve the issues in this case and establish unity in the

circuits as the proper remedy for a Rule 41(g) proceeding, filed at the

conclusion of the criminal proceedings, and thus a civil action in equity.

Dated this 1st day of March 2022.

Respectfully Submitted,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.