Petition — Yokum v. United States

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Office -Supreme Court, US

g2-1400 FILE p

FEB 7 193

IN THE =o A

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

NO.

WOODROW YOKUM,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FOURTH CIRCUIT COURT OF APPEALS

RICHARD W. CARDOT

Attorney at Law

P. O. Drawer 1729

Elkins, West Virginia 26241

Counsel for Petitioner

~e-°

QUESTION PRESENTED

May the Respondent Government

be entitled to dismissal, of Peti-

tioners motion to show cause why

property seized from Petitioner

under search warrants in 1967 has

not been returned, based on statute

of limitations when Petitioner has

almost continually from 1967 to

present attempted to litigate the

issue of the return of property

seized is no longer needed in any

further criminal proceedings.

TABLE OF CONTENTS

AUCHOLTICLES. .cccccccccsccccccccscccccdy Ad

Question Presented... ..c.scessesseeed = 2

Statement OF CaSO. .cccccccccesccceers = §

AEGUMORE. cc ccccccccsccccccccccvesees © Ll

CONCLUSION. .cccccccccccrccccscccceedsd = 20

PPR sc cc ce ccectscsccecesececcces @ Ot

CREPE ROCOCe OF BSOEVIGE. cccccccecssccccecad

TABLE OF AUTHORITIES

PAGE

Grisham v. United States,

392 F.2d 980, 983 (Ct.Cl.),

cert. denied 393 U.S. 843

Sif | Pr ree tere AiO cake 66 6 «ee 6 9

Hill v. McMartin,

432 F.Supp 99(1977)..... Prory rrtreray | 16

Richey v. Smith, 515

F.2d 1239, 1242-3

5th Circuit 1975

(cited with authority) ......ccceeeee ee lL6

Slocum v. Mayberry,

2 wheat. 1,9, 4 L ed

169 (1817), in re Behrens,

39 F.2d 561 (2d Cir. 1930).....15, 16, 17

United States v. Arch

A. Moore, Jr., 423 F.

Supp 858 (1976)

CHO GOMES BOLE s icc rvcccstnercscesscesecoane

United States v. Wilson,

176 U.S. App. D.C. 321,

540 F.2d 1100 (1976)

at ON a ee ae re eee

et i

United States v. Yokum,

No. 67-91-E in the

U. S. District Court

for the Northern

District of West Virginia... ..ceeeeee ee 8

United States of America

v. Woodrow Yokunm, TO—241—E. oon ne 0 8 Oy 10

Yokum v. United States,

et al, C.A.No. 73-105-E

N.D.W.Va. Sept. 13, L97TEdic ccveccsnecsces 10

Yokum v. United States,

No. 2-75 (Ct.Cl. eg) eS 6, 10, 12

Yokum v. United States,

208 Ct. Cl. 972, 529

F.2d 532 (1975),

cert. denied, 429

U.S. 820 (1976)......... Serer reer re

Yokum v. United States,

C.A. No. 79-0130-E(H)

(N.D.W.Va. Feb. 20, 9G re ll, 17

Yokum v. U. S., U. S.

Court of Appeals for the

Fourth Circuit, NO. 81-1299... ccccccceeeld

ich abe 483 NATE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

NO.

WOODROW YOKUM,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FOURTH CIRCUIT COURT OF APPEALS

Petitioner Woodrow Yokum,

respectfully prays that a. Writ of

Certiorari issue to review the opinion and

judgment of the U. S. Court of Appeals for

the Fourth Circuit in this proceeding.

An Order was entered in the U. S.

Court of Appeals for the Fourth Circuit on

the 22nd day of December 1982, when

Petition for rehearing was denied.

QUESTION PRESENTED

May the Respondent Government be

entitled to dismissal, of Petitioners

motion to show cause why property seized

from petitioner under search warrants in

1967 has not been returned, based on

Statute of limitations when petitioner has

aimost continually from 1967 to present

attempted to litigate the issue of the

return of property seized is no longer

needed in any further criminal proceedings.

STATEMENT OF CASE

During the months of February and

March, 1967, pursuant to ae series of

search warrants issued by the United

States District Court for the Northern

District of West Virginia, the Respondent

seized and impounded a large quantity of

personal property which is the subject

Matter of this Suit. The property

consisted of automobiles, trailers,

trucks, electronic and radio eyuipment,

and other similiar property.

The search warrants alleged that the

"property was embezzled, stolen, puriloined

and converted from the said United States

a

of America and then concealed and retained

with intent to convert said (property) for

personal use and gain, in violation of

Title 18, Section 641, United States Code”.

Following the seizure of the

property in issue, two separate federal

actions were instituted against

Petitioner. The first, commenced in the

Northern District of West Virginia, Civil

Action 67-91-E, resulted in Petitioner's

conviction on Six (6) counts of violuting

18 U.S.C. Sec. 2312 (Interstate

Transportation of Stolen Property in

Interstate Commerce), and Three (3) counts

of violating 18 U.S.C. Sec. 641 (Theft of

Government Property). However, none of

the property which is the subject of this

Claim was used in that or any other

criminal action. The Judgment and

Commitment Order was entered on August 5,

1968. On appeal, the FPourth Circuit

reversed the District Court as to One (1)

count but affirmed Petitioner's conviction

as to the remaining counts.

The second criminal proceeding,

commenced by indictment in the Eastern

District of Virginia, was dismissed

ayainst Petitioner on July 9, 1970. Again

none of the property which is the subject

of this claim was used in that or any

Other criminal action.

Petitioner prior to, during and

subsequent to Criminal Action No. 67-91-E

in the United States District Court for

the Northern District of West Virginia,

moved for the return of the property. The

Respondent resisted motion and advised the

United States District Court that all

property was being “retained for use as

evidence in further investigation and

proceedings involving surplus property

matters in other jurisdictions and that

the Government was retaining the property

to be used as evidence". On April 13,

1970, the Petitioner, Woodrow Yokum, by

counsel, filed a Motion renewing his

earlier Motions for return of the

property. That Motion was dismissed -by

the United States District Court for the

Northern District of West Virginia on May

29, 1970.

Ҥ<-

Petitioner next filed a complaint on

July 12, 1973, seeking return of the

property or the reasonable value of the

property. The district court dismissed

that complaint on the basis of sovereign

immunity as to the United States, and

quasi-judicial immunity as to defendant

James Companion, the United States

Attorney and the amount in controversy

exceeded Ten Thousand Dollars ($10,000.).

Yokum_v. United States, et al, C.A.No.

73-105-E (N.D.W.Va. Sept. 13, 1974).

Subsequently, on January 2, 1975,

Petitioner filed a claim in the United

States Court of Claims seekiny

compensation for the property seized. In

his petition, it was stated he was

entitled to the return of all the property

taken (Count I), or $400,000, the

reasonable value of that property. Yokum

v. United States, No. 2-75 (Ct.Cl. 1975).

The petition was denied, and the Court of

Claims granted summary judgment for the

United States on the basis that the damage

Claim was barred as a matter of law by the

-6-

statute of limitations (App. 52). The

Court of Claims denied Petitioner's motion

for rehearing and the Supreme Court denied

certiorari. Yokum_v. United States, 208

ct. Cl. 972, 529 #.2d S32 (1975), cert.

denied, 429 U.S. 820 (1976). The issue on

the return of property was not litigated.

Following the action instituted in

1975 in the U. S. Court of Claims (Yokum

v. U.S. No. 2-75, 208 Ct Clms 972, 529 F

2d 532) which was dismissed and cert

denied barring Yokum by the statute of

limitations. The Government instituted an

action in the U. S. District Court for the

Northern District designated as United

States of America v. Woodrow Yokum, Civil

Action No. 76-241-E. This was a_e show

Cause action by the Government to remove a

portion of the subject personal property

from Petitioner's real estate. When the

Court indicated it would require the

Government to establish its ownership in

the property. the matter was dismissed on

the Governments motion on March 22, 1979

some two (2) years and 150 days after it

was instituted.

Petitioner next filed a petition in

district court on July 6, 1979, requesting

a a

that the United States be ordered to show

cause why it should not be ordered to

return to petitioner all the property that

has been seized. On February 20, 1981,

the District Court for the Northern

District of West Virginia dismissed the

petition with prejudice on the grounds

that the suit is barred by res judicata.

Yokum Vv. United States, C.A. No.

79-O0130-E(H) (N.D.W.Va. Feb. 20, 1981).

Petitioner appealed from the U. S.

District Court for the Northern District

of West Virginia. The Fourth Circuit

Court of Appeals in its opinion set aside

the issue of res judicata and raised the

issue of the statute of limitations

thereby barring further adjudication by

Petitioner. The defense of statute of

limitations was not raised in Respondents

motion to dismiss in District Court. The

Fourth Circuits answer was that the

government cannot be held to have waived

this defense. Therefore, the Court

applied it and affirmed the judgment of

the District Court on other grounds.

Yokum v. U. S.. U. S. Court of Appeals for

the Fourth Circuit, No. 81-1299.

ARGUMENT

April 13, 1970 motion was made in

criminal action United States v. Yokum,

No. 67-91-E in the U. S. District Court

for the Northern District of West

Virginia, for the return of property

seized by the Respondent, United States of

America. The Honorable Robert Maxwell,

Judge, could have and Petitioner believes

should have then determined this issue.

An order then would save further expense

to Petitioner and Respondent and expedite

the matter of the return of the property.

Judge Maxwell declined to do so requiring

the Petitioner to bring a separate civil

action. On May 29, 1970 Judge Maxwell

issued the order below.

"Ordered that the Court ruling on

the defendants motion for the

return of property and for the

rental of property seized, for

reasons appearing on the record,

is made without prejudice to the

defendants right to prosecute a

civil action for the return of

the property and for the rental

of the property seized.”

Petitioner argues before this Court

the issue of the return of the property

-9-

has not been addressed by this or any

other Court. It is the duty of the

Respondent United States of America, after

the need or use of seized property

pursuant to search warrant, to either

establish the seized property as

contraband, fruits of the crime subject to

forfeiture or confiscation or return to

the owners of the property if that can be

established or the parties from whom they

were taken. There can be no dispute this

has not been done. :

It is rather interesting to review

United States of Americas brief on the

statute of limitations concerning

Petitioners lack of diligence and the

government being prejudiced, “the longer

the delay, the less the need to search for

specific indices of prejudice" Grisham v.

United States, 392 F.2d 980, 983 (Ct.Cl.),

cert. denied 393 U.S. 843 (1968). There

is no question delays make the prosecution

as well as the defense of an action

difficult however we would submit any

delays have not been as a result of the

Petitioners lack of diligence to attempt

- 10 -

to prosecute this matter. The Respondents

further statement "...an Appellant has

offered no legitimate excuse for the

delay, particularly the period between

Appellants last suit in the Court of

Claims in 1975 and the suit in the Dis-

trict Court", is an utter misrepre-

sentation of the facts. Petitioner

attempted to litigate return of property

in response to Governments motion to show

cause to remove the - property from

Petitioners own real estate. When

challenged by Petitioner to prove

Governments ownership vis-a-vis search

warrants the government voluntarily

dismissed the action U, S. v. Yokum, C.A.

No. 76-241-E.

Three (3) years and seventy three

(73) days later on July 12, 1973 the

Petitioner instituted an action in the U,

S. District Court for the Northern Dis-

trict of West Virginia, Yokum v. United

States, et al, 73-105-E. The Court, on

September 13, 1974, some approximately 429

days after it was filed, dismissed the

suit. On January 2, 1975, 110 days after

the dismissal of the action in the U. S.

-=jl]-

District Court Petitioner instituted a

Suit in the U. S. Court of Claims denoted,

Yokum_v. United States, No. 2-75. Some

approximately two (2) years and twenty two

(22) days elapsed while this matter in the

Court of Claims and its appeal was pro-

secuted. Eighteen (18) dys after cer-

tiorari was denied by the Supreme Court of

the Court of Claims decision, Respondent

instituted suit in the VU. S&S. District

Court for the Northern District of West

Virginia in Civil Action 76-241-E. This

matter was dismissed upon motion of the

Respondent on March 22, 1979 some two (2)

years and one hundred fifty (150) days

after it was instituted by the Res-

pondent. On July 6, 1979 some one hundred

six (106) days after the show cause pro-

ceeding had been dismissed by Respondent

the Petitioner inititated this proceeding

in the U. S. District Court for the

Northern District of West Virginia denoted

as Woodrow Yokum v. United States, Civil

Action 79-130-E(H). This action was dis-

missed by the Honorable Charles E. Haden

on Pebruary 22, 1981.

» 12 «

The Pourth Circuit ruled the six (6)

year statute of limitations prevails pur-

Suant to 28 USC Sec. 2401. The question

is if the six (6) years began to run with

May 29, 1970, was this six (6) year

statute of limitation period tolled

pending Petitioners attempt to litigate

the return of the property? Three (3)

years and seventy three (73) days would

have elapsed from May 29, 1970 until the

Petitioner instituted his first action

towards the return of the property on July

12, 1973. During the pendency of that

suit or until September 13, 1974, a period

of four hundred twenty nine (429) days or

one (1) year and sixty four (64) days of

the six (6) years of statute of limita-

tions was tolled during the period of

litiyation.

This Court should find the suit

instituted by Petitioner, Yokum v. United

States, 2-75 (Ct. Clms) in the Court of

Claims some one hundred ten (110) days

after the dismissal of the action by the

U. S. District Court, the statute of

limitations was again tolled from January

@ 13 «

2, 1975 for some period of two (2) years

and twenty two (22) days until October 4,

1976. This would mean up to that parti-

cular period of time only, i.e. from May

29, 1970 to October 4, 1976, only three

(3) years, one hundred eighty three (183)

days of the six (6) year statute of

limitations had expired.

Within 18 days of certiorari beiny

denied the matter of the subject property

was ayain brought before a Federal Court

when the Respondent initiated its show

cause order on October 22, 1976 in the JU.

S. District Court for the Northern Dis-

trict of West Virginia. This litigation

again tolled the statute of limitations

because the issue of return of the pro-

perty was again in the breast of the Court

when Petitioner replied to Respondents

Show Cause Petition requesting return of

the property. This action tolled for an

additional two (2) years one hundred fifty

(150) days or until March 22, 1979 when

upon Respondents own motion the matter was

dismissed.

- 14 -

Some one hundred six (106) days

later or on July 6, 1979 the present show

cause action was instituted by the

Petitioner. Therefore since the last

motion for the return of the property was

ruled on in the criminal action 67-91-E on

May 29, 1970, to the present only three

(3) years three hundred seven (307) days

of the statute of limitations has ex-

pired. The balance of the statute of

limitation in time having been tolled

while the issue of the return of property

was in litigation in a court which would

have jurisdiction over the subject matter.

It is well established the Courts of

the United States have a duty to oversee

the operation of the United States Govern-

ment and it ayencies, with oversight the

Government does not abuse the powers of

the search warrant and the processees

through which the Courts permit the gov-

ernment to operate. The U. S. District

Court for the Northern District of West

Viryinia in criminal action 67-91-E had an

opportunity to resolve these matters in

o 1% «

May 1970 and with regret, expense and del-

ay, unfortunately refused to do so.

The Federal Courts have been granted

Supervisory powers to resolve issues of

abuse by government. Slocum v. Mayberry,

2 wheat. 1,9, 4 L ed 169 (1817), in re

Behrens, 39 F.2d 561 (2d Cir. 1930). The

Respondent had failed to institute any

forfeiture or confiscation proceedings

after the original criminal action 67-91-E

had ended, as required in United States v.

Wilson, 176 U.S. App. D.C. 321, 540 F.2d

1100 (1976) at 1103-04. This Court, as

Stated in Rule 17(a) of the Rules of the

U. S. Supreme Court has the power of over-

Sight as the Courts below, have a duty to

see that the powers granted to the

Respondent are not misued.

There can be no excuse by the

Respondent for it failure to initiate a

timely action for forfeiture and con-

fiscation of the seized property after it

was no longer required in any prosecution

or lead to further prosecution. Not to do

so as pointed out before reflects an abuse

of process on the

-A6 =

part of the United States of America.

This Court, as the Courts below, has the

power to supervise the actions of United

States of America to see the United States

of America is required to do that which it

is required, obligated and should do.

Slocum _v. Mayberry, supra, in re Behrens,

supra.

Federal Courts have the general

equitable power to oversee and order the

return of property seized although no

criminal action is pending. Richey v.

Smith, 515 F.2d 1239, 1242-3 Sth Circuit

1975 (cited with authority) and Hill _ v.

McMartin, 432 F.Supp 99(1977). And in the

case of United States v. Arch A. Moore,

Jr., 423 F. Supp 858 (1976) the Court held

"... the Government's continued

retention of Moore's records and

possessions is an abuse of pro-

secutioral power and violative

of what is a limited grant of

power to force individuals,

through legal procedures, to

give up control of documents and

other objects. 1. 26 @8t (OF

keeping with the function and

purpose of the subpoena power as

provided by statute and it is at

odds with the existing case law.”

- 17 =

The Petitioner has with diligence

attempted to litigate the matter of the

return of the property. It was and is the

duty of Respondent to go forward and re-

sOlve the return of the property.

As in Slocum v. Mayberry, supra, the

Court, in 1817, held

"...if the seizing officer (in

this case appellee) should re-

fuse to institute proceedings to

ascertain the forfeiture, the

district court may, upon appli-

cation of the aggrieved party,

compel the officer to proceed to

adjudication, or to abandon the

seizure.” (Emphasis added)

This is what the Petitioner has been

attemptiny to do almost continuously since

1970.

By Motion and Order in Yokum_v.

United States, C.A. No. 79-0130-E(H) the

U. S. District Court for the Northern

District of West Virginia, dated the 4th

day of February, 1983, The Honorable

Charles H. Haden, II, Judge, found

Petitioners response, as asserted, to

Respondents Motion for disposition of

- 16 -

property to be frivolous in law at this

point in the litigation and issued an

order directing the U. S. Marshall to dis-

pose of Petitioners property and account.

for after disposition. The Courts and

government refuses to address the basic

question that search warrants don't divest

Parties interest in property taken from

them. Thus how has title been vested in

Respondent to now dispose of the same and

what is to be done with the proceeds

(money) accrued by the Marshalls in

disposition of the same?

Petitioners asserted in response to

Governments Motion to immediately dispose

of the seized property that time was not

of the essence since subject property had

been stored since 1977. Further

Petitioner advised the U. S. District

Court he intended to commence this appeal

and asked stay until decision is made on

this matter. Petitioner avered the

Subject property has been for in all

effect abandoned by Respondent. The

Respondent, and the VU. S. District Court

are in error in now saying “all appellate

- 19 -

action has been concluded..." and the case

has now been returned to the jurisdiction

of the District Court. Further such

Motion for an Order to dispose of the pro-

perty should not have been granted without

Oral argument and hearing. Not with-

standing Petitioners defense of the

tolling of the statute of limitations or

arguing in the alternative that if

Petitioner is barred by the statute of

limitations Respondent is barred on the

same grounds.

Therefore, there is nothing in the

record to support Respondents are vested

With title to and power of disbursement

for disposition of the seized property

without more.

CONCLUSION

The Courts below have so widely

departed from the established principles

controlling search warrants and the dis-

position of seized property in this matter

as to warrant this Courts power of

supervision. Petitioner has exhausted

each and every remedy to effectuate a

». 20 <

hearing on the merits in this matter.

Even now with the Court below Order to the

Government to dispose of the seized pro-

perty the Respondents and the Courts below

abuse the usual course of judicial pro-

ceedinys to the detriment of Petitioner.

Petitioner prays this Court to stay dis-

posal of the property pending this appeal

and reverse the decision of the Courts

below and remand with directions to hear

Petitioners show cause Petition on what

basis the government is veste with

ownership i t

ae

RICHARD W. CARDOT

Attorney at Law

P. O. Drawer 1729

Elkins, West Virginia 26241

Counsel for Petitioner