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Brown v. Wachovia Bank

May 10, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Emanuel Brown, a federal inmate proceeding pro se, brought this action pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq. He challenges the constitutionality of a restitution order imposed by the District Court in the Middle District of North Carolina as part of Plaintiff's sentence for armed bank robbery. The amended complaint named as defendants Wachovia Bank, Kennedy Thompson, Chairman of Wachovia Bank,*fn1 and the following federal agencies and officials: Alberto Gonzales, Attorney General of the United States, the Department of Justice ("DOJ"), Harley Lappin, Director of the Bureau of Prisons ("BOP"), the United States Probation Department, John M. Johnston, a former special agent of the Federal Bureau of Investigation ("FBI"), John W. Stone, Jr., an Assistant United States Attorney, John Doe, and Jane Doe ("Federal Defendants").*fn2 Plaintiff seeks return of the seized cash in the amount of $67,365.85 and an additional $15,000.00. Mr. Brown alleges that the former amount was illegally seized from his residence in Philadelphia and applied against his restitution obligation. The latter amount represents proceeds of a settlement in an unrelated civil action against the BOP and was also applied to Plaintiff's restitution obligation.

On initial consideration of the complaint, this Court dismissed the case for failure to state a claim, finding that (1) restitution was required under the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. § 3663A, et seq.; and (2) the Federal Defendants were immune from suit. The Court of Appeals vacated that decision and remanded on the ground that a prior restitution statute, the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. § 3663, et seq. (1985), was in effect at the time of Plaintiff's criminal offense.*fn3 As directed by the appeals court, Defendants were served a copy of the summons and amended complaint. Wachovia Bank filed a motion to dismiss and the Federal Defendants moved for dismissal or, in the alternative, for summary judgment.*fn4


Mr. Brown alleges that on September 28, 1990, FBI agent Johnston and other agents illegally seized $67, 365.85 in cash from his residence in Philadelphia, Pennsylvania. Am. Compl. at 2. On March 31, 1991, in the United States District Court for the Middle District of North Carolina, Mr. Brown was convicted of armed bank robbery and use of a firearm during a crime of violence. United States v. Brown, No. 91-5088, 1993 WL 998, at *1 (4th Cir. Jan. 6, 1993). The convictions arose from the theft of $371,000.00 from a branch of the Wachovia Bank and Trust in Greensboro, North Carolina. Id.

On July 3, 1991, Mr. Brown was sentenced to an imprisonment term of 330 months, five years of supervised release, and ordered to pay restitution to Wachovia Bank in the amount of $303,000.00. See Fed. Defs.' Mot. to Dismiss or, in Alt., for Sum. J. Exh. 3. The sentencing judge ordered that the $67,365.85 seized from Plaintiff's residence be applied to the restitution order. Am. Compl. at 3. Plaintiff's conviction and sentence were affirmed by the Court of Appeals for the Fourth Circuit on January 6, 1993. Brown, 1993 WL 998, at *5.

Pursuant to Fed. R. Crim. P. 41(e), Mr. Brown filed a motion for return of the money seized by the FBI. Fed. Defs.' Mot. to Dismiss or, in Alt., for Sum. J. Exh. 2. On July 5, 1996, the District Court for the Middle District of North Carolina denied the motion on the ground that the seized money was being applied to a valid restitution order. Id.

Plaintiff filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on July 16, 1997alleging, among other grounds, that the restitution order was in error. See Fed Defs.' Mot. to Dismiss or, in Alt., for Sum. J.Exh. 3 at 12. In denying the motion, the District Court for the Middle District of North Carolina found that Plaintiff's restitution claim was "conclusory" and that he had procedurally defaulted by not raising the issue on direct appeal. Id. Exh. 3 & Exh. 4. The Fourth Circuit Court of Appeals denied Plaintiff a certificate of appealability on this decision. United States v. Brown, No. 98-6584, 1998 WL 398770, at *1 (4th Cir. July 9, 1998). On July 26, 2005, that court also denied Plaintiff authorization to file a successive § 2255 motion. Fed. Defs.' Mot. to Dismiss or, in Alt., for Sum. J. Exh. 5.


Defendants move to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction over one of the individual defendants, improper venue, and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b). Defendants also contend that Plaintiff's suit is barred by the statute of limitations. The Court will address the issues raised by Defendants' motions in turn, but first note that a complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir. 2003) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). A court should not dismiss a complaint for failure to state a claim unless the defendant can show beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Warren v. Dist. of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004); Kingman Park, 348 F.3d at 1040.

Federal Defendants have also moved for summary judgment. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be accepted as being true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

A. The Nature of Plaintiff's Claim

Federal Defendants contend that this cause of action is actually a collateral attack on Plaintiff's conviction and must be pursued in the district court where he was sentenced. Although Plaintiff has styled his complaint as one for relief under RICO, the Court is not bound by a pro se litigant's characterization of his cause of action. A court must determine the proper characterization of a filing by the nature of the relief sought, McLean v. United States, No. 90- 318, 2006 WL 543999, at *1 (D.D.C. Mar. 3, 2006), i.e., "to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis." Castro v. United States, 540 U.S. 375, 381-82 (2003).*fn5 Therefore, a motion ...

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