The opinion of the court was delivered by: LAWS
Motions have been filed by Mary C. Bell, Wilbert Gross, Burnie King, Janie Owens and Barbara Towles for the return of certain moneys, automobiles, furnishings and other personal property seized by police officers. Following the seizure, the United States Commissioner dismissed proceedings against movants, but they were subsequently indicted with others by grand jury original in Criminal Case No. 211-54.
A preliminary question of procedure has been raised. The Government declares the property was seized pursuant to Section 206(b) of the District of Columbia Law Enforcement Act of 1953, P.L. 85, Chap. 159, 83rd Cong., 1st Sess., 67 Stat. 95, which provides for the forfeiture to the District of Columbia, unless good cause is shown to the contrary by the owner, of property used or to be used in carrying on or conducting any lottery, in setting up or keeping any gaming table, or in maintaining any gambling premises. Since the property was not seized and will not be used as evidence, the Government maintains, it is not subject to a motion for its return in a criminal proceeding. The movants argue their motions are authorized by Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and they would otherwise be deprived of property without due process of law.
The United States Attorney's interest in the property is at an end when it is determined the property may not be used in evidence, by motion under Rule 41(e), or that it will not be so used, as here. Rule 41(e) provides that when a motion by a person aggrieved by an unlawful search and seizure for the return of property and to suppress evidence has been granted, '* * * the property shall be restored unless otherwise subject to lawful detention * * *.' The District of Columbia asserts an independent interest in holding the property as preliminary to libel proceedings for its forfeiture, and thereby makes the property 'otherwise subject to lawful detention'. Since a libel is a civil action at law, not a criminal action, the Federal Rules of Criminal Procedure do not apply. United States v. Nobles, D.C.N.J.1952, 109 F.Supp. 8; United States v. Tuzzo, D.C.N.J.1949, 9 F.R.D. 466. The District of Columbia is not a party to the criminal proceedings, nor can it be made a party by these motions. The motions for return of property are accordingly inappropriate.
Defendants are not without remedy:
(1) They may apply for administrative relief.
(2) They may sue the officers who seized the property in trespass. Hammel v. Little, 1936, 66 App.D.C. 356, 87 F.2d 907.
'(b) Unless otherwise provided by Act of Congress, whenever a forfeiture of property is prescribed as a penalty for violation of an Act of Congress * * * in cases of seizure on land the forfeiture may be enforced by a proceeding by libel which shall conform as near as may be to proceedings in admiralty.'
Unlike 49 U.S.C.A. § 781 et seq., the statute does not appear to be restricted to the forfeiture of vessels, vehicles or aircraft used to transport contraband narcotics, firearms or counterfeiting equipment. In striking out the provision in the original bill, H.R. 5312, 83d Cong., 1st, sess., which as amended became the District of Columbia Law Enforcement Act of 1953, supra, that forfeitures under the subsection were to be enforced by proceedings in this Court as provided in Chapter 163, 28 U.S.C.A. § 2461 et seq., and substituting provisions for disposition of the property and protection of bona fide liens, the Act did not specify any procedure for effecting forfeiture. Chapter 163 may therefore still be applicable.
(4) They may also be able to proceed by way of other suits in which the Municipal Government and any other claimants interested in the property may be named as parties. Cf. 28 U.S.C.A. § 2463.
The decision of this Court, however, is confined to holding that upon objection property seized by officers which may be forfeited to the District of Columbia under Section 206(b) of the District of Columbia Law Enforcement Act of 1953, supra, may not be recovered by motion filed in a criminal case.
The motions will accordingly be denied without prejudice.
On Motion for Reconsideration of Motion for Return of Property.
By memorandum dated March 10, 1954, this Court held in this case that property seized by police officers which is subject to being forfeited to the District of Columbia Municipality under § 206(b) of the District of Columbia Law Enforcement Act of 1953, P.L. 85, Chap. 159, 83d Cong., 1st Sess., may not be recovered by motion for return of property under Rule 41(e) of the Federal Rules of Criminal Procedure. Because of ...