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Ford-Bey v. United States

United States District Court, District of Columbia

January 2, 2020

ISMAEL FORD-BEY, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE

         Plaintiff Ismael Ford-Bey, proceeding pro se, filed a motion in February, 2019 pursuant to Federal Rule of Criminal Procedure 41(g) seeking the return of personal property that he alleges was seized from his residence in Washington, D.C. and his girlfriend's residence in Alexandria, Virginia, almost seven years earlier in August, 2012, by Drug Enforcement Administration (“DEA”) agents. Pl.'s Mot. for Return of Property (“Pl.'s Mot.”) at 1, ECF No. 1.[1] The motion was originally filed in the U.S. District Court for the District of Maryland, where, in 2014, the defendant pleaded guilty to seven counts related to a conspiracy to distribute cocaine and to commit money laundering and consented to the forfeiture of certain property and funds derived from his criminal conduct. See Transcript of Plea Hearing (“Maryland Plea H'rg Tr.”) at 7:14-17:18, 41:14-24, United States v. Ford-Bey, No. 13-cr-492-DKC (D. Md. Dec. 1, 2014), ECF No. 218. The U.S. District Court for the District of Maryland, at the government's suggestion, transferred the motion to this Court after concluding that the property the plaintiff sought was seized in Washington, D.C., and “a Rule 41(g) motion must be filed in the district where the property was seized.” See Order dated July 9, 2019 (“Maryland Order”) at 1, ECF No. 13. The government, after being directed to file supplemental responses to the plaintiff's motion, see Min. Orders (July 11, 2019 and September 17, 2019), has now filed a “Motion to Dismiss and Supplemental Response, ” arguing, inter alia, that the plaintiff's property has been forfeited, with notice to the plaintiff, as part of his criminal proceedings in Maryland and through administrative forfeiture by the DEA. See Gov't's Mot. to Dismiss & Suppl. Resp. at 3 (“Gov't's Mot.”), ECF No. 18 (emphasis in original). For the reasons discussed below, the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), will be granted in part, denied in part, and the government's suggestion for yet another transfer to a third district court will be denied. Id. at 6-7.

         I. BACKGROUND

         This action centers around the seizure of a number of the plaintiff's possessions during the investigation of a large drug distribution conspiracy. The events leading to those seizures and the administrative and judicial proceedings surrounding the forfeiture of some of those items are thus relevant to the disposition of the government's instant motion to dismiss. In addition, the procedural details of the plaintiff's request for the return of his property inform the resolution of this dispute. These circumstances are thus each discussed in turn.

         A. Factual Background

         During an August 15, 2012 traffic stop in Texas, the Texas Department of Public Safety conducted a search of a refrigerated box truck. Gov't's Notice of Suppl. Exs. in Supp. of Mot. to Dismiss, Ex. 1 (“Gov't's Suppl. Exs.”) at 8, ECF No. 21-1. That search revealed that the truck was hauling multiple kilograms of cocaine to Prince George's County, Maryland. Id. The truck was allowed to continue on its way. Id. Upon arrival in Maryland, on August 17, 2012, the truck was met by the plaintiff, who was observed by law enforcement unloading the cocaine into his car. Id. As law enforcement moved to intercept, the plaintiff drove on, setting off a high- speed chase. Id. After crashing his car into a median strip, the plaintiff successfully fled on foot. Id. Law enforcement at the scene recovered “13 boxes of suspected cocaine” from his car. Id. at 19.

         1. Seizures

         That same day, DEA Agents acquired state search warrants for both the plaintiff's residence in Washington, D.C. and his girlfriend's apartment in Alexandria, Virginia. Id. at 8, 19. Upon executing those warrants, the Agents seized several highly valuable items, including at least one luxury vehicle, several watches and other assorted pieces of jewelry, and handbags. See Memorandum of Points and Auths. in Support of Mot. to Return Property (“Pl.'s Mem.”) at 2, 5, ECF No. 1-1; Gov't's Opp'n to Pl's Rule 41(g) Mot. (“Gov't's Opp'n”) at 2, ECF No. 6; Gov't's Mot. at 7; Gov't's Suppl. Exs. at 2-31; Maryland Plea H'rg Tr. at 32:17-33:7. The items were sent for appraisal and placed in “high value asset storage.” Gov't's Suppl. Exs. at 8.

         2. Administrative Forfeiture Proceedings Prior to Plaintiff's Arrest

         Although the plaintiff was not yet in police custody, the DEA initiated procedures to forfeit the seized items. See, e.g., Gov't's Suppl. Exs. at 2-31. Under those procedures, the DEA assigned separate case numbers to the various items, based apparently in part on the location where the items were seized. See Gov't's Reply in Support of Mot. to Dismiss and Resp. to the Court's September 17, 2019 Order (“Gov't's Reply”), Ex. 1 (“Zekoski Decl.”) at 2, ECF No. 29-1. As relevant to the instant motion, the items were grouped as follows: (1) a 2011 Maserati Gran Turismo valued at $132, 000, which was seized on August 17, 2012 from Ford-Bey in Washington, D.C., id. at 77; (2) assorted watches and jewelry valued at $22, 400, which were seized on August 17, 2012 from Ford-Bey's girlfriend's apartment in Alexandria, Virginia, id. at 48-49; and (3) assorted watches and jewelry valued at $173, 900, [2] which were seized on August 17, 2012 from Ford-Bey's apartment in Washington, D.C., id. at 16-17, 37-39.[3]

         For each of the DEA cases, the Agency attempted to provide notice to the plaintiff and anyone else who might have an interest in the seized property of the government's intent to forfeit the items pursuant to 21 U.S.C. § 881. See, e.g., Id. at 16. With respect to the plaintiff's car, the Agency sent notice, on September 28, 2012, to three separate addresses, in Mitchellville, Maryland, Alexandria, Virginia, and Washington, D.C., associated with the plaintiff. Id. at 11- 12, 77-88 (documenting notices sent). Notices sent to the plaintiff's D.C. apartment and a separate Mitchellville, Maryland residence were delivered. Id. at 78-79, 81-82. One of the notices, sent to the plaintiff's girlfriend's apartment in Alexandria, Virginia, was returned as unclaimed. Id. at 84-85. Just to be certain, the Agency tried to reach the plaintiff at the Alexandria, Virginia address one final time on December 11, 2012, but that notice, too, was returned. Id. at 104-05. A similar method was used to notify the plaintiff of the Agency's intent to forfeit the assorted watches and jewelry seized from his D.C. apartment and from his girlfriend's Alexandria apartment. On October 9, 2012, the Agency sent separate notices of its intent to forfeit the items seized from the plaintiff at his girlfriend's apartment to the same D.C., Maryland, and Virginia residences, but only the notice sent to D.C. was delivered. Id. at 46-47, 50-51, 54-55.[4] On December 11, 2012, the Agency re-sent notices to the Maryland and Virginia addresses, but neither notice was delivered. Id. at 61, 64.[5] Finally, on October 16, 2012, the Agency sent three separate notices of its intent to forfeit the items seized from the plaintiff's D.C. apartment to those same D.C., Maryland, and Virginia addresses. Again, only the notice sent to the D.C. address was delivered. Id. at 18-19, 22-23, 26-27. When, on December 11, 2012, the Agency re-sent notices to the Maryland and Virginia addresses, those too were returned. Id. at 33, 36.

         While attempting to notify the plaintiff personally of the government's intent to forfeit the seized property, the Agency was also casting a wider net. For each DEA case number, notices were printed in the Wall Street Journal for three consecutive weeks, listing the place of the seizure, who the property was seized from, and what property was seized. A notice related to the plaintiff's car began running on October 15, 2012 and was reprinted on October 22 and 29. Id. at 12-13, 89-90. A notice related to the items seized from the plaintiff's girlfriend's apartment began running on October 22, 2012 and was reprinted on October 29 and November 5. Id. at 8, 56-58. Finally, a notice related to the items seized from the plaintiff's D.C. apartment was first published on October 29, 2012 and reprinted on November 5 and 12. Id. at 4, 28-30.

         The plaintiff, who was still a fugitive, never responded to any of these notices and never filed a claim in the administrative proceedings. The only response the DEA received was a petition for remission/mitigation filed by SunTrust bank, which asked for reimbursement for the remainder due under the financing agreement it had for the Maserati. Id. at 92-94. After no other claims were filed, the Agency declared the property forfeited in three separate declarations of forfeiture. Id. at 75-76 (Decl. of Forfeiture dated February 21, 2013, forfeiting the items seized from the plaintiff's girlfriend's apartment); id. at 106 (Decl. of Forfeiture dated February 26, 2013, forfeiting the plaintiff's car); id. at 37-39 (Decl. of Forfeiture dated March 22, 2013, forfeiting the items seized from the plaintiff's D.C. apartment).[6] According to the government, the forfeited property has been sold or liquidated. See Gov't's Reply, Ex. III (“DEA Property Tracking Chart”) at 1-5, ECF No. 29-4.

         3. The Plaintiff is Arrested, Made Aware the Government Sought Forfeiture, Pleads Guilty, and Is Sentenced

         After forfeiture proceedings were completed, law enforcement finally caught up with the plaintiff and arrested him on August 16, 2013, when a car, in which he was a passenger, was pulled over by Maryland state police. See Brief of Appellee at 5, United States v. Ford-Bey, No. 15-4347 (4th Cir. 2016), 2016 WL 2604994; Brief for Appellant at 5, United States v. Ford-Bey, No. 15-4347 (4th Cir. 2016), 2016 WL 949779. One of the plaintiff's co-conspirators had already been indicted by that point and, on February 24, 2014, a superseding indictment was filed in the U.S. District Court for the District of Maryland adding the plaintiff and charging him and three co-defendants with conspiracy to distribute narcotics and conspiracy to commit money laundering. See Superseding Indictment; see also Indictment, Ford-Bey, No. 13-cr-492-DKC (D. Md. Sept. 16, 2013), ECF No. 9. The superseding indictment included a criminal forfeiture allegation giving notice, pursuant to Federal Rule of Criminal Procedure 32.2, that if the defendants were convicted, the government would seek forfeiture of property derived from, involved in, or traceable to the charged narcotics and money laundering offenses. See Superseding Indictment at 18-23 (citing 21 U.S.C. § 853(a) (forfeiture pursuant to narcotics offense), 18 U.S.C. § 982(a)(1) (forfeiture pursuant to money laundering offense) and 28 U.S.C. § 2461(c) (mode of recovery)). This property included at least $108, 000, 000, Superseding Indictment at 18, 21, money from certain bank accounts, id. at 19, 21, $185, 000 in assorted jewelry, id. at 19, 21, a 2013 Audi SS Quattro vehicle, id. at 20-21, and $24, 565 in assorted clothing items, id.[7] The government also sought substitute property if, through an act or omission of a defendant in that criminal case, the property subject to forfeiture could not be located, had been substantially diminished in value, or was otherwise unavailable to be forfeited. Id. at 22-23 (citing 18 U.S.C. § 853(p)).

         On December 1, 2014, the plaintiff pleaded guilty to seven counts of the superseding indictment. See Maryland Plea H'rg Tr. at 7:14-17:18.[8] The factual proffer signed as part of the plaintiff's plea indicated that the plaintiff “does not oppose the narcotics forfeiture provision set forth in the Superseding Indictment” and “does not oppose the money laundering provision set forth in the Superseding Indictment.” Gov't's Mot., Ex. B (“Factual Proffer”) at 27, ECF No. 18-1.[9] Likewise, at his plea hearing, the plaintiff expressly stated that he did not contest the forfeiture allegations included in the superseding indictment. See Maryland Plea H'rg Tr. at 41:14-24 (government counsel: “According to the Defendant's factual proffer . . . he is not contesting, he is not opposing the forfeiture provisions that are included in the Indictment?, ” Court asking: “You understand the Government is seeking forfeiture from you[?], ” and plaintiff responding: “Yes, Your Honor.”).

         On December 1, 2014, the same day that the plaintiff pleaded guilty, the district court issued a Preliminary Order of Forfeiture against the plaintiff. See Gov't's Mot., Ex. C (“Order of Forfeiture”) at 37-40, ECF No. 18-1. Upon entry of the order, the government was “authorized to seize the forfeited property” and to “commence any applicable proceeding to comply with statutes governing third party rights, including giving notice of this Order.” Id. at 39-40. Further, the government was directed to “publish notice of this Order in accordance with 21 U.S.C. § 853(n)(1).” Id. The Order would become final at the time of sentencing. Id.

         On June 5, 2015, the plaintiff was sentenced to 396 months of incarceration, followed by 10 years of supervised release. See Judgment & Conviction at 3-4, Ford-Bey, No. 13-cr-492-DKC (D. Md. June 5, 2015), ECF No. 179. The preliminary forfeiture order became final that day and was attached to the defendant's Judgment and Conviction Order. See id., Att. 1, Order of Forfeiture at 1-4, ECF No. 179-1; Transcript of Sentencing Hearing (“Sentencing H'rg Tr.”) at 130:24-131:8, Ford-Bey, No. 13-cr-492-DKC (D. Md. June 4, 2015), ECF No. 222. In reference to the administrative forfeiture proceedings that concluded prior to the defendant's arrest, the government's sentencing memorandum informed the plaintiff that the DEA had administratively forfeited certain property that was seized from him. Gov't's Reply, Ex. V (“Gov't's Sentencing Mem.”) at 30, ECF No. 29-6 (explaining that certain “high value assets . . . were seized and forfeited by the DEA” after “[n]o claims were filed regarding the seized property”).

         In 2016, the plaintiff's sentence was vacated by the Fourth Circuit, which held that a firearm enhancement had been improperly applied. United States v. Ford-Bey, 657 Fed.Appx. 219, 219-22 (4th Cir. 2016) (per curiam). On remand, on January 31, 2017, the plaintiff was resentenced to 360 months of incarceration and 10 years of supervised release. See Amend. Judgment & Conviction at 2-3, Ford-Bey, No. 13-cr-492-DKC (D. Md. Jan. 31, 2017), ECF No. 401. The same final forfeiture order was attached to this amended judgment. See id., Att. 1, Order of Forfeiture at 1-4, ECF No. 401-1.[10]

         B. Procedural Background to Instant Action

         On February 19, 2019, the plaintiff filed a “Motion for Return of Property Pursuant to F.R.C.P. Rule 41(g).” Pl.'s Mot. at 1. An “Exhibits List” attached to the motion listed 49 items he says were seized during the August 17, 2012 searches of his and his girlfriend's apartments. Pl.'s Mot., Ex. 1, Exhibits List in Support of Rule 41(g) Mot. (“Pl.'s List”), ECF No. 1-2. The plaintiff seeks the return of these 49 items, which he alleges were seized as part of an unlawful search and seizure and were then forfeited, without notice, or not forfeited at all. Pl.'s Mem. at 9. The 49 items, as listed by the plaintiff on the Exhibits List attached to his Motion, are:

[#1.] Maserati Granturismo;
[#2.] Rolex GMT;
[#3.] Rolex Rose Gold Presidential;
[#4.] Rolex Yachtmaster II;
[#5.] Rolex 50th Anniversary;
[#6.] Audemars Piguet Royal Oak (black);
[#7.] Audemars Piguet (yellow gold with yellow diamonds);
[#8.] Audemars Piguet (volcano orange);
[#9.] Hublot Big Bang (rose gold with diamonds/white band);
[#10.] Hublot Fruity Tootie (red with rose gold and rubies);
[#11.] Hublot Limited Edition (tennis watch);
[#12.] Bulgari (yellow gold with black strap);
[#13.] Briethlin (stainless steel with rubber strap);
[#14.] Louis Vuitton Sky Blue Limited Edition;
[#15.] Louis Vuitton Brown Watch;
[#16.] Concord (stainless steel with diamond bezel);
[#17.] 6 carat diamond ring in rose gold setting;
[#18.] 2.5 carat diamond ring white ...

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