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United States v. Mowatt

United States District Court, D. Maryland

June 23, 2017

UNITED STATES OF AMERICA
v.
KARIM MOWATT

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW United States District Judge.

         Presently pending and ready for resolution in this case is Defendant Karim Mowatt's motion for return of property. (ECF No. 59). He requests the return of “[a]ll papers, books and other tangible objects”, “[v]ideo tapes (VCR and Mini-DV)”, “[a]ll pictures and photos”, “[a]ll credit cards and bank statements”, “3 Passports (American)”, “[d]river'[s] [l]icense, Social Security Card and Birth Certificate”, and “$20, 036 U.S. Currency” seized on November 17, 2005 by the Bladensburg Police Department (“BPD”).[1]

         The government filed a response in opposition to the motion on May 12, 2010 (ECF No. 64) asserting that Mowatt is not entitled to the return of $20, 796 which was administratively forfeited in 2006, nor to the requested passports. However, he is entitled to the return of the remainder of his property requests. Mowatt has not filed a reply. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the following reasons, the motion for return of property will be granted in part and denied in part.[2]

         I. Background

         In November 2005, the Bladensburg Police Department (BPD) responded to a noise complaint in Karim Mowatt's (“Mowatt”) apartment. As Mowatt opened his door, the BPD requested that he reveal his right hand hidden behind his back. When Mowatt refused, an officer reached for his hand. In response to Mowatt's resistance, the officers handcuffed him.

         After Mowatt was placed in the living room, he began to wrestle with one of the officers. The officer and Defendant slammed into Mowatt's refrigerator which forced the refrigerator door open. Another officer noticed a plastic bag containing ecstasy pills in the refrigerator. The officers called their supervisor at the BPD to obtain a search warrant. Upon obtaining the search warrant, the officers seized some of Mowatt's property including more than $20, 000 in currency and two passports. The BPD turned the seized property over to the Drug Enforcement Agency (DEA).

         On August 17, 2006, Mowatt was sentenced to 197 months imprisonment for four counts of narcotic trafficking and weapon related charges. The United States Court of Appeals for the Fourth Circuit reversed this court's ruling that the BPD had not illegally seized property from Defendant's apartment on January 25, 2008. (ECF No. 55). The mandate was issued on February 25, 2008 (ECF No. 56). United States v. Mowatt, 513 F.3d 395, 405 (4th Cir. 2008). The government then moved to dismiss the indictment which was granted the same date.[3] (ECF No. 57). Mowatt filed the instant motion for return of property on December 4, 2009. (ECF No. 59).

         II. Motion for Return of Property

         Mowatt argues that the BPD searched and seized property from his apartment “without a legally signed search warrant” under the Federal Rules of Criminal Procedure 41(e). (ECF No. 59 at 1).[4]

         Rule 41(g) of the Federal Rules of Criminal Procedure states that

[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion.

         Fed.R.Crim.P.41(g). “[A] party who claims that the government must return seized property . . . must demonstrate lawful entitlement to the property and an equitable right to its return.” Babb v. U.S. Drug Enforcement Agency, 146 F.App'x. 614, 620 (4th Cir. 2005)(internal quotations omitted)(“[u]sually, this showing is minimal, as ‘the person from whom the property was seized is presumed to have a right to its return'”)(citing United States v. Chambers, 192 F.3d 374, 377 (3d 1999). The party may support this burden by showing that the government no longer has a need for the property. See United States v. Garcia, 65 F.3d 17, 20 (4th Cir. 1995). The burden then shifts to the government to show that it has a legitimate interest in keeping the property. Id.; see also United States v. Carter, 139 F.3d 424, 429 (4th Cir. 1998)(legitimate interest can included items seized for continued use in investigations).

         If the government does not have a legitimate reason for retaining the property, “individuals whose property interests are at stake are entitled to notice” of the property and the opportunity to reclaim it. Dusenberry v. United States, 534 U.S. 161, 167 (2002)(internal quotations omitted)(citing United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993)). The government must show that notice was given to reclaim the property. Dusenberry, 534 U.S. at 168. Notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 168 (quoting Mullane v. Cent. Bank & Trust Co., 339 U.S. 306, 309-10 (1950)).

         Pursuant to 19 U.S.C. § 1607, the government may provide notice of forfeiture of property worth less than $500, 000. United States v. Minor, 228 F.3d 352, 354 (4th Cir. 2000)(stating that forfeitures under customs laws apply to forfeitures under drug laws in accordance with 21 U.S.C. § 881(d)). The government “must publish notice of its intention to declare forfeiture of the seized property and must provide written notice to interested parties.” Minor, 228 F.3d at 354 (citing 19 ...


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