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

APPENDIX A

NOT RECOMMENDED FOR PUBLICATION

No. 21-5552

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

)

)

)

ABRAHAM A. AUGUSTIN,

)

)

)

)

Defendant-Appellant.

)

)

v.

FILED

Feb 11, 2022

DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF

TENNESSEE

ORDER

Before: WHITE, THAPAR, and READLER, Circuit Judges.

Abraham A. Augustin, a federal prisoner proceeding pro se, appeals the district court’s

order denying his motion for relief from judgment, filed pursuant to Rule 60(b) of the Federal

Rules of Civil Procedure. Augustin’s Rule 60(b) motion sought relief from the district court’s

April 19, 2019, order denying his “petition for the return of seized property,” filed pursuant to

Rules 32.2(a) and 41(g) of the Federal Rules of Criminal Procedure. Augustin has filed a motion

for appointment of counsel. This case has been referred to a panel of the court that, upon

examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In December 2009, during a drug deal gone wrong, Augustin kidnapped the middleman at

gunpoint and—after the middleman was rescued—tried to hire a hitman to murder him and two other '

witnesses. The Bradley County (Tennessee) Sheriffs Department subsequently arrested Augustin.

He was charged in state court and released on bond. He then attempted to leave town but was

intercepted and arrested by FBI agents. Between these two arrests, Sheriffs deputies and FBI

agents seized, among other things, $15,640 in United States currency, a 2003 BMW 745LI vehicle,

No. 21-5552

-2-

and a U-Haul rental truck containing personal property. In January 2010, at Augustin’s request,

the Bradley County Sheriffs Department released the contents of the U-Haul to a third party. The

Bradley County Sheriffs Department also initiated state forfeiture proceedings against the seized

currency and the BMW. Those proceedings were completed on May 5, 2010, and April 15, 2011,

respectively.

In October 2010, a federal jury convicted Augustin of kidnapping, in violation of 18 U.S.C.

§ 1201; using and carrying a firearm during and in relation to a crime of violence, in violation of

18 U.S.C. § 924(c)(1)(A); being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1); using the mail with the intent to commit murder for hire, in violation of 18 U.S.C.

§ 1958; attempting to obstruct and influence a trial by attempting to have witnesses killed, in

violation of 18 U.S.C. § 1512(c)(2); and three counts of hiring a person to kill a witness with the

intent to prevent the witness’s attendance and testimony at trial, in violation of 18 U.S.C.

§ 1512(a)(1)(A).

The district court sentenced Augustin to a total term of 500 months of

imprisonment, and we affirmed Augustin’s convictions and sentence on direct appeal. United

States v. Dais, 559 F. App’x 438, 450 (6th Cir. 2014). The district court later reduced Augustin’s

sentence to 380 months’ imprisonment after vacating his § 924(c)(1)(A) conviction in light of the

Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). See United States v.

Augustin, 16 F.4th 227, 231 (6th Cir. 2021).

In September 2015, Augustin filed a motion to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255, as well as a separate Rule 41(g) motion seeking the return of his seized

property. The government opposed both motions, arguing with respect to the latter that the

property at issue was not in the federal government’s possession because it “was seized and

disposed of by state and local authorities, in accordance with state procedures.” In support of its

position, the government submitted an affidavit from Wayne Jackson, a retired FBI special agent

with personal knowledge of Augustin’s case, who averred that “in January 2010, at the request of

Abraham Augustin, the contents of the U-Haul were released to” a third party and that “[a]t no

point did the Federal Bureau of Investigation, nor any other federal agency, exercise custody or

control of the U-Haul or the contents of the U-Haul.” The district court denied Augustin’s § 2255

No. 21-5552

-3 motion, and this court declined to issue Augustin a certificate of appealability. Augustin v. United

States, No. 18-6007 (6th Cir. Feb. 1, 2019) (order).

In November 2018, Augustin filed a motion for summary judgment, in which he restated

the substance of his Rule 41(g) motion. He also filed a petition for a writ of mandamus, in which

he asked this court to compel the district court to rule on his request for the return of his seized '

property. On April 19, 2019, the district court denied Augustin’s motion after determining that

local law enforcement had seized the property at issue and that “the United States has never been

in possession of’ it. We affirmed. United States v. Augustin, No. 19-5567 (6th Cir. Jan. 10,2020)

(order).

In January 2020, Augustin filed a Rule 60(b) motion for relief from the district court’s

order denying his Rule 41(g) motion based on allegedly newly discovered evidence—namely, four

exhibits, which he purportedly discovered on February 23, 2019, that allegedly show that Agent

Jackson constructively possessed his seized property. Augustin claimed that the discovered

exhibits prove that Agent Jackson instructed the Bradley County Sheriff s Office to seize and hold

the U-Haul (and its contents) on his behalf. According to Augustin, this evidence also shows that

Agent Jackson signed the paperwork to have the U-Haul towed from the scene of his arrest to the

Bradley County Sheriffs Office’s impound lot. Augustin claimed that this new evidence proves

that the federal government committed fraud on the court when it filed Agent Jackson’s allegedly

perjured affidavit to defeat his Rule 41(g) motion. Rather than seeking the return of the seized

property, Augustin asked the district court to reopen his case, find that the government had

committed fraud, find the government liable for the loss and deprivation of his personal property,

and permit him to seek damages. The government opposed Augustin’s Rule 60(b) motion,

reiterating its position that the federal government never possessed the seized property. The district court denied Augustin’s Rule 60(b) motion, concluding that Augustin was not entitled to

relief under Rule 41(g) because he did not dispute that the federal government does not currently

possess.the property at issue. Alternatively, the district court concluded that Augustin was not

entitled to any of his requested relief because “[n] either Federal Rule of Civil Procedure 60(b) nor

No. 21-5552

-5 evidence did not entitle Augustin to relief under Rule 41(g) because it was undisputed that the

federal government does not currently possess the property at issue. Id. (citing United States v.

Stevens, 500 F.3d 625, 628 (7th Cir. 2007) (holding that “if the Government no longer possesses

the property at issue, no relief is available under Rule 41 (g)”)). Although an exception to the lawof-the-case doctrine allows a court to revisit a prior ruling when “there is ‘ (1) an intervening change

of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent

manifest injustice,’” Ent. Prods., Inc. v. Shelby County, 721 F.3d 729, 742 (6th Cir. 2013) (quoting

Louisville/Jefferson Cnty. Metro Gov’t v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009)),

none of those circumstances is applicable in this case. By Augustin’s own admission, he came

into possession of the “new evidence” on February 23,2019—nearly two months before the district

court issued its order denying his Rule 41(g) motion. Moreover, Augustin fails to explain how he

came to possess this “new evidence” or why he could not have discovered and presented this

evidence—all of which date from December 2009—much earlier. In short, the district court acted

well within its discretion by declining to revisit Augustin’s arguments.

So too with Augustin’s request to amend his motion to raise a Bivens claim. This court

already rejected the same request in Augustin’s earlier appeal of the denial of his Rule 41(g)

motion. See Augustin, No. 19-5567, slip op. at 6. Here, as there, amendment would be futile

because the claim Augustin seeks to raise is barred by Tennessee’s one-year statute of limitations

. for Bivens claims. See Temi. Code Ann. § 28-3-104(a)(l)(B); Zappone v. United States',%70 F.3d

551, 559 (6th Cir. 2017) (noting that Bivens claims are subject to the statute of limitations from

the state in which the claim arose); Augustin, No. 19-5567, slip op. at 5 (“Augustin’s Bivens claims

would have accrued no later than April 15,2011, when Tennessee’s Department of Safety ordered

that the seized BMW be forfeited to the Bradley County Sheriff’s Department.”).

Finally, Augustin moves this court for appointment of counsel. “Appointment of counsel

in a civil case is not a constitutional right” but “a privilege that is justified only by exceptional

circumstances.” Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (citations omitted)

(quoting Wahl v. Mclver, 773 F.2d 1169, 1174 (11th Cir. 1985)). Augustin has ably represented

No. 21-5552

-4-

Federal Rule of Criminal Procedure 41(g) is a vehicle through which a defendant can seek to

reopen his criminal case or bring civil claims against the Government.”

On appeal, Augustin reiterates the arguments contained in his Rule 60(b) motion. He also

argues that, to the extent that Rule 60(b) is not the appropriate vehicle for obtaining his requested

relief, the district court should have allowed him to amend his motion in order to assert a claim

under Rivera v. Six Unknown Named Agents of Federal Bureau ofNarcotics, 403 U.S. 388 (1971).

We review a district court’s denial of a Rule 60(b) motion for an abuse of discretion.

Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009). “Abuse of discretion is defined as a definite

and firm conviction that the trial court committed a clear error of judgment.” Id. (quoting Burrell

v. Henderson, 434 F.3d 826, 831 (6th Cir. 2006)). Rule 60(b) permits a district court to grant relief

. from judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

evidence that, with reasonable diligence, could not have been discovered in time

to move for a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or

misconduct by an opposing party; (4) the judgment is void; (5) the judgment

has been satisfied, released, or discharged; it is based on an earlier judgment

that has been reversed or vacated; or applying it prospectively is no longer

equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). “Rule 60(b) does not allow a defeated litigant a second chance to convince

the court to rule in his or her favor by presenting new explanations, legal theories, or proof.” Jinks

v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001).

The district court did not abuse its discretion by dehying Augustin’s Rule 60(b) motion.

Assuming for the sake of argument that Rule 60(b), a civil rule, may be used to challenge the denial

of a Rule 41(g) motion, Augustin’s arguments are barred by the law-of-the-case doctrine. That

doctrine “precludes reconsideration of issues decided at an earlier stage of the case.” Yeschick v.

Mineta, 675 F.3d 622, 633 (6th Cir. 2012) (quoting Caldwell v. City of Louisville, 200 F. App’x

430, 433 (6th Cir. 2006)). In his appeal from the district court’s denial of his Rule 41(g) motion,

Augustin attempted to offer the same “new evidence” that he cited in his Rule 60(b) motion—

namely, the four exhibits that allegedly show that Agent Jackson had control over his property

once it was seized. Augustin, No. 19-5567, slip op. at 5. But we explicitly determined that that

No. 21-5552

-6himself in this appeal and has not established exceptional circumstances warranting the

appointment of counsel.

Accordingly, we DENY Augustin’s motion for appointment of counsel and AFFIRM the

district court’s order.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

-i-'

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

UNITED STATES OF AMERICA

v.

ABRAHAM A. AUGUSTIN

)

)

)

)

)

)

)

Case Nos. l:09-cr-187

Judge Travis R. McDonough

Magistrate Judge Susan K.. Lee

ORDER

Before the Court is Defendant Abraham A. Augustin’s motion for relief pursuant to

Federal Rule of Civil Procedure 60(b) (Doc. 252). For the reasons set forth below, this motion

will be DENIED.

I.

BACKGROUND

On October 20, 2010, a federal jury convicted Augustin of one count of kidnapping, in

violation of 18 U.S.C. § 1201; one count of using and carrying a firearm in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A); one count of knowingly possessing a firearm

as a convicted felon, in violation of 18 U.S.C. § 922(g)(1); one count of using the mail with

intent to commit murder for hire, in violation of 18 U.S.C. § 1958; and three counts of

attempting to hire a person to kill another with the intent to prevent his or her testimony at trial

in violation of 18 U.S.C. § 1512(a)(1)(A). (See Docs. 89, 113, in Case No. l:09-cr-187.) United

States District Judge Curtis L. Collier sentenced Augustin to a total term of 500 months’

imprisonment. (Doc. 113, at 3, in Case No. 1:09-cr-l 87.) This 500-month sentence included a

120-month sentence on Augustin’s § 924(c) conviction, which Judge Collier ordered to be served

consecutively to his collective 380 months on the other counts. (Id.) Augustin appealed his

Case l:09-cr-00187-TRM-SKL Document 274 Filed 06/17/20 Page 1 of 6 PagelD #: 2811

convictions and his sentence, but the United States Court of Appeals for the Sixth Circuit

affirmed. See United States v. Dais, 559 F. App’x 438, 450 (6th Cir. 2014).

On September 15, 2015, Augustin filed his first motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of counsel (Doc. 141, in

Case No. 1:09-cr-l 87). This Court denied that petition and declined to issue a certificate of

appealability (Doc. 211, in Case No. 1:09-cr-187). The Sixth Circuit subsequently denied his

application for a certificate of appealability. (Doc. 227, in Case No. 1:09--cr-187.)

On November 13, 2019, the Sixth Circuit granted Augustin authorization to file a second

§ 2255 petition challenging his § 924(c) conviction in light of the Supreme Court decision in

United States v. Davis, 139 S. Ct. 2319 (2019).1 (See Doc. 244, at 4, in Case No. 1:09-cr-187.)

Although Augustin mistakenly purported to base his second § 2255 petition on the Supreme

Court’s decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (see Doc. 245, at 7, in Case No.

1:09-cr-187), the Government conceded and the Sixth Circuit agreed that, while Dimaya did not

support Augustin’s claims for relief, Davis did support his challenge to his § 924(c) conviction

(Doc. 244, at 4, in Case No. l:09-cr-187). On January 14, 2020, this Court granted Augustin’s

second § 2255 petition, vacated his conviction and sentence under § 924(c), and reduced his total

sentence to 380 months’ imprisonment. (Doc. 249, at 6.)

On June 29, 2015, Augustin filed a petition for return of property under Federal Rule of

Criminal Procedure 41(g). (See Docs. 139, 143.) Specifically, he sought the return of:

1. 2003 BMW 745 LI (YIN # WBAGN63463DR13857);

2. $847.00 United States Currency;

l Though Augustin sought to raise several other claims, the Sixth Circuit only authorized a

second petition based on the challenge to his § 924(c) conviction. (See Doc. 244, at 3^1.)

2

Case l:09-cr-00187-TRM-SKL Document 274 Filed 06/17/20 Page 2 of 6 PagelD #: 2812

3. $9,850.00 United States Currency;

4. $4,943.00 United States Currency; and

5. Contents of a U-Haul truck driven by Justin Vanorden.

(See Doc. 139, at 6, 8-9; Doc. 143, at 6, 8-9.) The Court denied Augustin’s petition, finding that

the property sought was not in the possession of the United States at the time Augustin filed his

petition. (Doc. 234, at 3.) On January 31, 2020, Augustin filed the instant motion for relief from

the Court’s order denying his motion for return of property (Doc. 252). This motion is ripe for

the Court’s review.

II.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 60(b), a Court may, upon motion of a party,

relieve that party from a judgment or order based on:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been

discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier

judgment that has been reversed or vacated; or applying it prospectively is no longer

equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). “Relief under Rule 60(b) is circumscribed by public policy favoring

finality of judgments and termination of litigation.” Info-Hold, Inc. v. Sound Merck., Inc., 538

F.3d 448, 454 (6th Cir. 2008). “Accordingly, the party seeking relief under Rule 60(b) bears the

burden of establishing the grounds for such relief by clear and convincing evidence.” Id.

Under Federal Rule of Criminal Procedure 41(g), “[a] person aggrieved by the

deprivation of property may move for the property’s return.” “For the district court to grant the

motion, however, the federal government must have itself possessed the property at some point.”

3

Case l:09-cr-00187-TRM-SKL Document 274 Filed 06/17/20 Page 3 of 6 PagelD #: 2813

United States v. Price, 841 F.3d 703, 707 (6th Cir. 2016) (citing Okoro v. Callaghan, 324 F.3d

488, 491-92 (7th Cir. 2003)). When state or local officers seized and disposed of the property,

the federal government did not possess it. Id.; see also United States v. Oguaju, 107 F. App’x

541, 543 (6th Cir. 2004). The burden is on the movant to show that the property was possessed

by the United States. See Oguaju, 107 F. App’x at 543; United States v. Obi, 100 F. App’x 498,

499 (6th Cir. 2004).

III.

ANALYSIS

Augustin asks the Court to reverse its April 19, 2019 order dismissing Augustin’s motion

for return of property (Doc. 234). (See Doc. 252, at 1.) Augustin represents that he obtained

new evidence from the Bradley County Sheriffs Office showing that the Government did

exercise control and custody over his belongings on the date that the property was seized. (Doc.

252, at 1.) Specifically, Augustin argues that the federal government effectively controlled his

property when FBI Special Agent Wayne Jackson ordered that it be seized and stored by the

Bradley County Sheriffs Office. (See id. at 1-2, 9.) Augustin relies on the reasoning of United

States v. Fabela-Garcia, 753 F. Supp. 326 (D. Utah 1989), as discussed in United States v. Lee,

62 F.3d 1418 (6th Cir. 1995) (unpublished table decision). He also cites multiple documents

from the Bradley County Sheriffs Department indicating that the property at issue was to be

held for Special Agent Jackson, that the impounded U-Haul seized from Augustin would be

returned upon Jackson’s approval, and that Bradley County was not to release any of the

property without first calling Jackson. (Doc. 252-1, at 8, 12, 14, 16.)

The Government opposes Augustin’s motion, arguing that the federal government never

possessed Augustin’s property and that the property he seeks is not in federal custody. (Doc.

268, at 1.)

4

Case l:09-cr-00187-TRM-SKL Document 274 Filed 06/17/20 Page 4 of 6 PagelD #: 2814

Augustin does not argue that the federal government actually possessed the property he

seeks; rather, he suggests that the Government constructively possessed the property. (Doc. 252,

at 1, 7.) However, the Court need not determine whether the Government constructively

possessed the property at issue because Augustin does not challenge the Government’s assertion

that it no longer possesses the property. (See generally Doc. 252.) “[I]f the Government no

longer possesses the property at issue, no relief is available under Rule 41(g).” United States v.

Stevens, 500 F.3d 625, 628 (7th Cir. 2007) (citing Okoro v. Callaghan, 324 F.3d 488, 491 (7th

Cir. 2003)); (see also Doc. 248, at 5 (order of the Court of Appeals quoting this language).)

Further, Augustin is not entitled to any of the relief he seeks. Rather than seeking the

return of the actual property, which he acknowledges is not in the Government’s possession,

Augustin asks that his case be reopened, the Court find that the Government committed fraud,

the Court find the Government liable for the property, and the Court allow him to seek damages

to compensate him for his loss. (Doc. 252, at 12.) Neither Federal Rule of Civil Procedure 60(b)

nor Federal Rule of Criminal Procedure 41(g) is a vehicle through which a defendant can seek to

reopen his criminal case or bring civil claims against the Government. Accordingly, the Court

will not grant Augustin any such relief. Additionally, the Court may not order the Government

to pay compensatory damages for seized property that is no longer in the Government’s

possession under Rule 41(g). See United Stales v. Droganes, 728 F.3d 580, 589 (6th Cir. 2013)

(agreeing with other circuits “that sovereign immunity bars an award of money damages against

the government on a Rule 41(g) motion where the property cannot be returned”). Thus,

Augustin is not entitled to any of the relief he seeks.

IV.

CONCLUSION

For the reasons stated herein, Augustin’s motion for relief from the Court’s order denying

5

Case l:09-cr-00187-TRM-SKL Document 274 Filed 06/17/20 Page 5 of 6 PagelD #: 2815

his motion for return of property (Doc. 252) is DENIED. Any further attempts to secure the

return of the relevant property should be directed to the State of Tennessee and the Bradley

County Sheriffs Department rather than the federal government.

SO ORDERED.

/s/Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE

6

Case l:09-cr-00187-TRM-SKL Document 274 Filed 06/17/20 Page 6 of 6 PagelD #: 2816

7

/

APPENDIX C

AGENCIES:

( ) United States Parole Commision '

( ) Federal Bureau of Investigation

(

) Immigration & Naturalization Service

(

) Internal Revenue Service

(

) United States Attorney

(

) Treasury Department

( ) Bureau of Prisons

( ) State Agency

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OTHER:

RE: FREEDOM OF INFORMATION ACT

(U.S.C. 552) PRIVACY ACT

(5 U.S.C. 552a (d) (1)) Request:

EXEMPTIONS (5 U.S.C. 552 A

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It is further requested that your agency in response to the material requested specifically inform me if and to

whom the file and / or any material therein contained has been released to any identifiable individual or

agency, their name, title, purpose and need for such information, the date of such release the specific

v Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L. Ed. 2d. 536. (1973)

d R S'

If is further requested that your agency provide me with a copy of specific regulations of your Deoartm

ent as

provided by statute (5 U.S.C 552), so that compliance with such regulations is adhered to except as

otherwise provided by law (5 U.S.C. 701 et. seq.).

This request is made under the Freedom of information Act (5 U.S.C., 552) and the Privacy Act (5 U.S C

552a) together with the “alternate means of access to record on file with your Agency. If and for any reason

it is determined that portions of the material and records sought is exempt by state (5 U.S.C (6) tel

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522a (j) (2) (k) (2) or by regulation (Menard v Mitchell, 430 F. 2d. 486,139 U.S. App. D.C. 113 U9701 ’

TfTh2 MI»?P??len* °/^eaSUry’ 446 R SuPP 102)1 re<luest specific citation to authority for such deletion

“ lt sho^d be determmed that any material be deemed CONFIDENTIAL due to the material for release

’

Paton v La Parde, 524 F. 2d. 862 (CA3 1975), Chastain v Kelly, 510 F. 2d. 1232. I further agree go pay any

resonable costs, or file IN FORMA Pauperis if I am indigent, provided by statute or regulation of your

agency, for search and copying of the material requested.

Pursuant to Tide 5 U.S.C. 552 (6) (1) (1), it is noted that your Agency has ten (10) working days following

receipt of this request to provide the information and material sought. Should any delay occur it is

requested that your Agency inform me of this delay as provided by Agency regualtions and the’ date as to

when your Agency will be able to act upon request

Yours truly,

Dated :

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APPENDIX D

General Docket

United States Court of Appeals for the Sixth Circuit

Docketed: 03/28/2011

Termed: 03/14/2014

Court of Appeals Docket #: 11-5357

USA v. Abraham Augustin

Appeal From: Eastern District of Tennessee of Chattanooga

Fee Status: In Forma Pauperis

Case Type Information:

1) Criminal

2) Sen & Cnv Appeal

3) null

Originating Court Information:

District: 0649-1 :1.09-CR-187-1

Court Reporter: Shannan Andrews

Court Reporter: Jeannie Boleman

Court Reporter: Elizabeth Coffey

Trial Judge: Curtis L. Collier, Chief District Judge

Date Filed: 12/22/2009

Date Order/Judgment:

03/17/2011

Date NOA Filed:

03/22/2011

Prior Cases:

None

Current Cases:

Lead

Member

Start

End

11-5356

11-5357

11/07/2013

Consolidated

UNITED STATES OF AMERICA

Plaintiff - Appellee

Christopher D. Poole

Direct: 423-752-5140

[COR LD NTC Government]

Office of the U.S. Attorney

Firm: 423-752-5140

1110 Market Street

Suite 301

Chattanooga, TN 37402

v.

ABRAHAM A. AUGUSTIN (Federal Prisoner: #42542-074)

Defendant - Appellant

Robert L. Sirianni, Jr.

Direct: 407-388-1900

[COR LD NTC Retained]

Law Offices

400 N. New York Avenue

Suite 215

Winter Park, FL 32789

Abraham A. Augustin

[NTC Pro Se]

U.S.P. Coleman I

P.O. Box 1033

Coleman, FL 33521

Mark K. McCulloch

Direct: 407-388-1900

[COR NTC Retained]

Law Offices

201 N. New York Avenue

Suite 200

Wnter Park, FL 32789

Case l:09-cr-00187-CLC-SKL Document 156-1 Filed 12/07/15 Page 1 of 5 PagelD#:

https://ecf.ca6.iiscourts.go v/cmecf/servlet/Transport§oom

03/28/2011

1

Criminal Case Docketed. Notice filed by Appellant Abraham A. Augustin. Transcript needed: y. (JB)

3 pg, 13.69 KB

04/15/2011

04/18/2011

04/28/2011

□ 2

The case manager for this case is: Julie Brock (JB)

4 pg, 4^90.53 KB

□ 3

MOTION filed by Mr. Lloyd Alan Levitt for Abraham A. Augustin to extend time. Certificate of Service:

04/18/2011. (LAL)

□ JL@

Pre-sentence report filed. (KAL)

0 pg, 0 KB

04/29/2011

□ gi

0 pg, —

0 KB

04/29/2011

05/02/2011

FILED: Motion to be Appointed Counsel by Mr. Lloyd Alan Levitt for Abraham A. Augustin. Certificate of

Service: 04/29/2011 ."ERROR: MOTION FILED INCORRECTLY. COUNSEL IS DIRECTED TO CONTACT

THE CLERK'S OFFICE FOR DIRECTIONS REGARDING REFILING THIS DOCUMENT’MEdited

04/29/2011 by JB] (LAL)

□ 10

2 pg, 132.08 kb

MOTION filed by Mr. Lloyd Alan Levitt for Abraham A. Augustin to appoint counsel for Abraham Augustin.

Certificate of Service: 04/29/2011. (LAL)

□ _LL

Copy of District Court Order filed granting in forma pauperis. (JB)

1 pg, 13.6 KB

05/02/2011 □ _n

_

2 pg, 29.73 kb

05/03/2011

□ i5

1 pg, 293 KB

05/13/2011

□ 18

1 pg,*38828 KB

05/13/2011

05/16/2011

ORDER filed granting motion to appoint counsel [IQ] and appointing Mr. Lloyd Alan Levitt for Abraham A.

Augustin under the Criminal Justice Act. Mr. Levitt is directed to file the Appearance of Counsel and

Transcript Order Forms with this court via electronic filing no later than 5/16/11. (JB)

APPEARANCE filed for Appellant Abraham A. Augustin by Lloyd A. Levitt. Certificate of Service:

05/03/2011. (LAL)

TRANSCRIPT ORDER FORM filed by Mr. Lloyd Alan Levitt for Abraham A. Augustin; Transcript on file in

district court. Certificate of Service: 05/13/2011. (LAL)

2 pg, 954.62 kb

□ 19.

TRANSCRIPT ORDER FORM filed by Mr. Lloyd Alan Levitt for Abraham A. Augustin; transcript ordered on

05/13/2011 from Court Reporter Ms. Elizabeth Coffey. [19] Certificate of Service: 05/13/2011. (LAL)

Q _2Q

APPEARANCE filed for Appellee USA by Christopher D. Poole. Certificate of Service: 05/11/2011. (CDP)

1 pg.3S35 KB

09/07/2011

Q _25

_

1 pg, 918.26 KB

LETTER SENT by to Court Reporter Ms. Elizabeth Coffey, regarding transcript related matter: [19],

Response due by 09/19/2011. (MRS)

09/19/2011

f] ___

27

3 pg, 104.48 kb

Appellant MOTION filed by Abraham Augustin asking the court to direct attorney Levitt to forward files and

transcripts as previously requested . Certificate of service: 09/27/2011. (JB)

□ 28

Miscellaneous letter sent to Augustin in response to his letter of 9/19/11. (JB)

09/28/2011

1 pg.’iOKB

10/07/2011

□ _

29

_

2 pg, 55.24 kb

Appellant MOTION filed by Defendant Abraham Augustin for Lloyd A. Levitt to be removed as counsel for

Abraham Augustin and new counsel appointed. Certificate of service: 10/13/2011. (JB)

11/21/2011

□ _31

_

1 pg, 918.36 kb

LETTER SENT by to Court Reporter Ms. Elizabeth Coffey, regarding transcript related matter: [191.

Response due by 12/01/2011. (MRS)

Q 33

ORDER filed denying motion for new counsel [29] filed by defendant Abraham Augustin. (JB)

11/22/2011

2 pg, 2471 KB

11/28/2011

□ 33

CORRESPONDENCE: letter regarding counsel by Abraham A. Augustin, (see order of 1/5/12) (JB)

2 pg, 66454 KB

01/03/2012

□ _35

_

2 pg, 126.11 kb

MOTION filed by Mr. Lloyd Alan Levitt for Abraham A. Augustin for Lloyd Alan Levitt to withdraw as counsel

for Abraham Augustin. Certificate of Service: 01/03/2012. (LAL)

01/05/2012

□ _36

_

2 pg, 24 96 kb

ORDER filed granting motion to withdraw as counsel [35] filed by Mr. Lloyd Alan Levitt. New counsel will be

appointed for appellant under the Criminal Justice Act. (JB)

01/09/2012

□ 39

TRANSCRIPT ORDER completed by Court Reporter Ms. Elizabeth Coffey for Document [19] transcript

filed by Mr. Lloyd Alan Levitt and Ms. Elizabeth Coffey in 11-5357. Date Hearing Held: 10/18/10,10/19/10,

10/20/10 and 3/10/10. Per notice from the DC. (MRS)

01/17/2012

□ __

4 pg, 137.6 kb

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 by Abraham A.

Augustin. (JB)

g 45

CORRESPONDENCE: Letter requesting status of appt of counsel by Abraham A. Augustin. (JB)

03/30/2012

2 pg, 45.96 KB

04/11/2012

□ 46

Miscellaneous letter sent to Augustin in response to his letter of 3/30/12. (JB)

1 pg, 9.95 KB

04/12/2012

Case l:09-cr-00187-CLC-SKL Document 156-1 Filed 12/07/15 Page 3 of 5 PagelD#:

https://ecfxa6.uscourts.gov/cmecf/servlet/TranspMtlvOom

APPENDIX E

OFFICE OF THE

PuScB BRADLEY COUNTY

ATTORNEY

Post Office Box 1167

Cleveland, TN 37364-1167

PHONE: (423) 728-7160 Fax: (423) 476-0696

February 20, 2019

RECORDS REQUEST RESPONSE LETTER

Abraham Ashley Augustin

Reg. No. 42542-074

Federal Correctional Complex - USP 1

P.O. Box 1033

Coleman, Florida 33521

Re:

Open Records Response

Dear Mr. Augustin:

™s letter is bein§ Provided in response to your public records request received by the

Bradley County Sheriffs Office wherein you requested copies of seven (7) different categories

of information. A copy of your request is enclosed with this response letter.

Pursuant to the Open Records Act, Bradley County must respond to records requests

using the form developed by the Office of Open Records Counsel.

Tennessee Code Annotated § 10-7-503(a) provides the following:

(2)(B) The custodian of a public record or the custodian’s designee shall promptly make

'available for inspection any public record not specifically exempt from disclosure. In the

event it is not practicable for the record to be promptly available for inspection, the

custodian staff shall within seven (7) business days:

(i) Make such information available to the requestor;

(ii) Deny the request in writing or by completing a records request response form

developed by the office of open records counsel. The response shall include the

basis for the denial; or

(iii) Furnish the requestor a completed records request response form developed

by the office of open records counsel stating the time reasonably necessary to

produce such record or information.

In accordance with the above-cited law, this letter is being sent to provide you with a

completed records request response. Enclosed herein is a total of one hundred eighty four (184)

pages responsive to your request. Please be advised that some information that you requested

may be held by other agencies, including the FBI, DTF and Hamilton County.

Page 2

Open Records Request

Sincerely,

A.

CRYSTAL R. FREIBERG

Bradley County Attorney

APPENDIX F

EXHIBIT 1A

, Bradley County Sheriffs Office

PROPERTY #

PROPERTY INVENTORY RECEIPT

9A

JfL

Dale/Time / Z- ''?—£>

Case #

□ msd

UsT Felony

"TSTsuspect

Receipt Issued

tdrird-'V//

Officer/Deputy

Q Victim

Q Owner

Domestic Violence

adge #

/

Q Victim

□ Suspect

NCIC CHECK

Q Owner

Address /!>L)D Jr-,, 1

Address

Q Yes

□ No

NCIC-Positive

If yes, NCIC printout must be attached

Computer Down

Q Yes

O No

City T(?

City

Owner Notified

Q Yes

Q No

OK to Dispose

□ Yes

□ No

□ Yes

OK to Release

If no, indicate release date:

□ No

Name

/J

fo

TV

State

Zip

Sex

Zip

State

Phone

DOB

Name

Phone

/

DOB

/

AT

Race

/l

SS #

/

/

Sex

Race

Authorizing Officer’s Signature

SS #

Date

Location Recovered

Detailed Description of Property (Make, Model, Serial#, Type, Color)

ITEM#

/

QTY.

Safekeeping

Seizure

SERIAL#

frAW /&*&/ Uu rJ.

P

42

Found

ITEM

a4 Ic/ Pa/

/

Evidence

STORAGE

LOCATION

yyV/

TV W j/QuCii>sV

9t-3-

RECEIVED BY ^

REASON

DATE & TIME RECEIVED

7

:!NAL DISPOSITION OF PROPERTY BY ITEM # (Property Tech Only)

7

t—

APPENDIX G

Bradley County Sheriffs Office

Vrl.

EVIDENCE RECEIPT

*

IMS

EVIDENCE NUMBER

09-01165

V

AGENCY CAB:

09-083816

CASE OFFICER

Smith, J

TYPE OF OFFENSE:

CASE NAMES

Abraham Augustin

Justine Vanorden

Lawrence Dais

TYPE

S

S

S

RACE

SEX

B

M

F

W

B

DOB

AGE

STATUS

M

DESCRIPTION OF EVIDENCE:

1 One plastic evidence bag identified to contain drug evidence described as : black lighter, chapstick, gum, 5

condoms, assoted papers, Motorola cellphone, Nokia celphone, pack of Newports (Dept. Item #001)

SERVICE REQUESTED:

Property

2 One plastic evidence bag identified to contain drug evidence described as : $9850.00 cash (Augustin) (Dept. Item

#002)

Property

3 One plastic evidence bag identified to contain drug evidence described as : $7829.00 cash (Dais) (Dept. Item #003) Property

4 One plastic evidence bag identified to contain drug evidence described as : $840.00 cash (Vanorden) (Dept. Item

#004)

Property

5 One plastic evidence bag identified to contain plant material described as : plant material (Dept. Item #005)

IBIFor Testing (Must

have Lab Request)

6 One plastic evidence bag identified to contain drug evidence described as : Samsung cellphone, dime, 20-dollar

bill, pack Newports, lighter, wallet, jerky'wrapper, pr socks (Dept. Item #006)

Property

7 One Property described as : U-Haul rental truck VIN: 1GDG5C1636F902141 - HOLD for FBI SA Jackson,

423-265-3607 (furniture and household items in storage area of truck) (Dept Item #007)

8 One manila envelope identified to contain Property' described as : key to item #7 (Dept. Item #008)

Date Received: 12/10/09

Submitted by:

8:42 am

Received by: Lyni Perilio

Page 1 of 1

EXHIBIT 2A

APPENDIX H

f

MAKE - ^

STYLE

SIODEL

colTor

V.I.N.

/CAS

1LM6UY{

Type

LICENSE #(LIC)

STATE

DATE

WHERE FOUND

h.S >

TJ

COMPLAINANT

S/a

S

x

U tt&uf

j

Jmt/Uv'J

ADDRESS

l0

PHONE

/

/%/

!/,<-' XL.et

r

DAMAGE OR

MISSING PARTS

«<

MILEAGE

KEYS IN CAR

VzA

TRUNK LOCKED

n

SWITCH

□ LOCKED

□ UNLOCKED

DOORS LOCKED

RADIO IN CAR

SPARE TIRE

SPARE WHEEL

JACK

CAR DRIVEN IN

BY WHOM

L

P

WRECKER SERVICE

*

WHERE STORED

N/A______

OTHER PROPERTY

IN VEHICLE:

/

u

>

n

H

C

0

REMARKS:

/•/>/•/ /t>y

'/~b

>i

OWNER OR OPERATOR

CL

HOME ADDRESS

0

z

x

i*

o

OFFICER

/

BADGE ^NJT

4v¥

THE UNDERSIGNED ACCEPTS RESPONSIBILITY FOR THE

ABOVE DESCRIBED VEHICLE & ITS CONTENTS.

SIGNATURE OF TOWMAN

TOS-BLER 11 (7/76)

8F-0582

EXHIBIT 4A

VEHICLE TOW SLIP RECORD COPY

<

APPENDIX I

EXHIBIT 3A

IMPOUND LOT ID#

VEH ID:

OPEN

J

2141

□ PHOTO

FINAL DISP:

RECALL

□ CURRENT

STATUS

319

.

|

□ KEYS

EVTD #:

□ NO KEYS

□ SEIZURE FILE

SUSPECT LAST:

DAIS

SUSPECT FIRST:

LAWRENCE

SEIZURE DATE:

SUSPECT LAST #2:

AUGUSTIN

12/10/2009 CASE# 09-083816

SUSPECT FIRST #2:

! IABRAHAM

□ FILE

DETECTIVE

SMITH

0 deu

□ TRAILER

I i Drug Seizur e

□ CIU

□ IMPOUND LOT

□ so

lJ Altered-missing #'s

□ DRUG BUILDING

i I Stolen

□ SURPLUS

□ EVIDENCE

i : Other

□I FOUND PROPERTY!

f-

0 LIEN

YEAR

NAME:

MAKE

U-HAUL

PROPERTY:

NAME LAST:

DISP:

RELEASED TO:

NOTES:

□ TOWING COMPANY

Explain:

U-HAUL

MODEL

VIN

1G065CIG36F902141

COLOR

TAG

STATE

U-HAUL TRAILER WILL BE RETURNED UPON APPROVAL OF W. JACKSON, FBI, 423-265-3601

NAME FIRST:

CLEAR DATE:

DATE/TIME:

APPENDIX J

EXHIBIT 5A

BRADLEY COUNTY SHERIFF'S OFFICE

IMPOUND LOT ACCESS/EGkESS FORM

_________ _ DATE: /£,/ 7 /&?

case

TIME:

AO? / _____ APPROVED BY: ____

OFFICER/DETECTTVE: SM J*

PHOTO? y

0

VEHICLE INFORMATION

COLOR:_______ YEAR: PC

MAKE: CZ^ F.

STATE;----------- VIN# f/CnL CC//T?Z

IMPOUNDED FROM:

. T*/

■i

REASON IMPOUNDED:

DRUG SEIZURE:____

STOLEN VEHICLE(INVESTIOATION):__

OTHER:?40

MODEL:

•TAG#

_ MILEAGE:.

_ WRECKER: /v>37

9J7/V/

A

OTHER CRIME RELATED SEIZURE:

ALTERED OR MISSING NUMBERS:

^

A* &=r

VEHICLE RFLFA.qF:

SETTLEMENT:______

ORDER SUPPLIED BY DEFENDANT:____

ORDER FROM DOS:

OTHER:______

DRIVER INFORMATION:

LAST: A/q q

ADDR.ESS: ALSO Jc, t

DOB:

J___ /__ ^ SEX.tftTD

FIRST:

Ajte

MIDDLE:

_ CITY:_____________

ZIP:.

—?*■ATE:

F.

RACE: WHITE___ BLACK'AK—HISPANIC___ASIAN___

OWNER INFORMATION:

LAST:___

ADDRESS:

.FIRST:

CITY:

.MIDDLE:

STATE:

ZIP:

VEHICLE DAMAfiF:

nW'C°TTS: KEYS_ RADIO

QTHER_r-^>yi;7Ly<_

OTHER PROPERTY F^1 JKIf^

DESCRIPTION:

SPARE_ SPARE TIRE__JACK_ CB RADIO.

4z>l,s-t,/C« j{2

Tjil/CM

.t

- j-

<J7

^

/-/

OD ^PTTPrj;

09-01165,

Bradley County Sheriffs Office

Control Jed Substances

SERIAL #:___

WHERE FOUND:___ Dais< Laurence

(S)

WHERE STORED:_______

Bradley County Sheriff's Office

llllllllflllilllilllllllllllllllll

*NOTE:this re 09-01165

FORWARDED THE

S7

Bradley County Sheriff's Office - 09-083816

OBTAINED &

OUND LOT!

s/4-Jtc/joJs