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District of Columbia v. Dunmore

April 14, 2000


Before Farrell and Glickman, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Farrell, Associate Judge

Appeal from the Superior Court of the District of Columbia

(Hon. Gregory E. Mize, Trial Judge)

(Submitted March 28, 2000

Following a criminal trial that ended in acquittal of appellee (Dunmore) on the lone charge of possession with intent to distribute cocaine, the trial court granted Dunmore's motion for return of property (alleged drug sale proceeds) despite the fact that the District of Columbia had instituted civil forfeiture proceedings soon after Dunmore's arrest. See D.C. Code § 33-552 (1998). The court rejected the District's argument that initiation of those proceedings divested it of power to order return of the property under Super. Ct. Crim. R. 41 (g). Further, although the court purported to apply the standards of proof of § 33-552 in ruling on Dunmore's motion, it refused to let the District engage in discovery to which it would have been entitled in a civil forfeiture proceeding.

We hold that the court erred in granting the Rule 41 (g) motion, because once the District has timely initiated civil forfeiture proceedings under § 33-552, those proceedings constitute the exclusive means by which the ownership of forfeitable property is to be determined.


Dunmore was arrested on August 27, 1997, and charged with possession with intent to distribute cocaine (PWID). Taken from him at the time of his arrest was $821 in cash. After he was indicted in September of 1997 on one count of PWID, the District of Columbia initiated proceedings on November 24, 1997, for civil forfeiture of the money. The criminal case (prosecuted by the United States) proceeded to trial in February of 1998, and Dunmore was acquitted. Thereafter, without notice to the District, his attorney moved for return of the $821 under Super. Ct. Crim. R. 41 (g).*fn1 The trial court initially granted the motion, but then, on the District's motion to reconsider pointing out its lack of notice and opportunity to intervene, directed the District to furnish "a proffer of what evidence, if any, other than the evidence adduced at trial, the government would introduce at a hearing on [Dunmore's] motion to demonstrate that the money seized from him was involved in an illegal narcotics transaction." The District responded by arguing that, because it had commenced civil forfeiture proceedings under § 33-552, the court lacked subject matter jurisdiction to order return of the property in the criminal case and that, even if it retained such power, the District was entitled to discovery regarding Dunmore's acquisition of the money under the rules of civil procedure.

The trial court rejected both arguments. It treated the proceeding before it as something of a hybrid, combining features of a Rule 41 (g) motion and a civil forfeiture trial. Thus, while rejecting the District's argument that it was "entitled to discovery in a post-trial motion for return of property," the court purported to apply the evidentiary standards of the civil forfeiture statute, D.C. Code § 33-552, including the presumption of forfeitability that arises when currency has been found in close proximity to forfeitable controlled substances. Section 33-552 (a)(7)(B). But it found that Dunmore's testimony at trial had overcome the presumption, and that the District - having failed to proffer any additional evidence - had not met its putative burden of proof on the ultimate issue. (As we explain later, the trial court misapplied the burden of proof imposed by the statute.) The court therefore reaffirmed its order granting the Rule 41 (g) motion, but stayed its order pending an appeal by the District.


Although a Rule 41 (g) motion is ancillary to the criminal proceeding in which it is brought, Stevens v. United States, 462 A.2d 1137, 1138 (D.C. 1983), and the District was not a party to the criminal case, the trial court in effect let the District intervene to oppose the motion for return of property, and we perceive no jurisdictional problem with the District pursuing this appeal.*fn2 The District contends that once it instituted proceedings under § 33-552 to forfeit ownership of the $821, the trial court no longer had authority to order its return in the criminal case. Examination of the court's authority under Rule 41 (g) as interpreted by our prior decisions, and of the text of § 33-552, persuades us that the District is correct.

In United States v. Wilson, 176 U.S. App. D.C. 321, 540 F.2d 1100 (1976) (Wilson I), the Circuit Court concluded that "the district court has both the jurisdiction and duty to return" property seized in connection with criminal proceedings once the proceedings have terminated and the property is no longer pertinent to a criminal prosecution. Id. at 324, 540 F.2d at 1103. In Wilson v. United States, 424 A.2d 130 (D.C. 1980) (Wilson II), this court "adopted [that] position" in rejecting a claim that the police department property clerk statute, D.C. Code §§ 4-151 et seq. (1973), which authorized the property clerk to return property upon application for it by a rightful claimant, "was . . . intended to deprive the [Superior Court] of any of its substantive or ancillary jurisdiction," including over a motion for return of property. Id. at 132-33. We further rejected an argument that the trial court lacked "personal jurisdiction to rule on a post-conviction motion for the return of property when [only] the United States is before it" as a party, not the police department, an agent of the District of Columbia government. Rather, we held that the police hold seized property "as agent for, and subject to the direction of, the trial court under whose authority it was seized." Property seized pursuant to law (whether a search warrant or a search incident to arrest) is held "on behalf of the court" such that "possession by the [police] officer is in contemplation of the law possession by the court.'" Id. at 133 (citation omitted).

In Alleyne v. United States, 455 A.2d 887 (D.C. 1983), we applied the holding of Wilson II (in which the defendant had been convicted) to a case in which the government had dismissed the prosecution before trial. Even where no trial has occurred, we explained, "[i]t is a simple enough matter for a judge to hold a hearing [on a motion for return of property], . . . eliciting the facts just as would be done at trial." Id. at 889.

In contrast to these decisions is Stevens v. United States, supra, where the seized money had been returned to someone other than the defendant before trial (i.e., the complaining witness). We held it "inappropriate [in that setting] for the trial court to entertain a motion for return of property ancillary to the criminal proceeding." 462 A.2d at 1138 (footnote omitted). The reason was that in such a case "a hearing on the motion would require the criminal trial judge[,] in effect, to try what is essentially a civil action and consider entering judgment against one or more parties rather than simply ordering a return of property." Id. at 1139. "[T]he type of proceeding . . . necessary to resolve the issue raised would no longer be ancillary in ...

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