United States District Court, D. Vermont
OPINION AND ORDER (DOCS. 249, 253, 255)
William K. Sessions III District Court Judge.
Melvin K. Hill, representing himself, moves under 18 U.S.C.
§ 983(e) to set aside a declaration of forfeiture
regarding currency seized in February 2012. (Docs. 249, 253.)
Hill also moves under Federal Rule of Criminal Procedure
41(g) for the return of property, including currency, seized
in May 2012. (Doc. 255.) For the reasons set forth below,
Hill's motion to set aside a declaration of forfeiture is
GRANTED and the motion for the return of seized property is
GRANTED in part and DENIED in part.
Background and Procedural History
February 13, 2012, Detective Daniel Merchand, then of the
Burlington Police Department, executed a search warrant of
Room 229 at the Anchorage Inn in Burlington, Vermont, with
the assistance of federal law enforcement officers.
United States v. Hill, No. 2:12-CR-12-04, 2014 WL
971748, at *1 (Mar. 12, 2014). Hill alleges that law
enforcement found him inside, searched his person, and
illegally seized approximately $2, 200. Id. Law
enforcement expressed their interest in engaging Hill as a
confidential informant, returned $200 of the seized currency
to him to allow payment for the hotel room, and released him
without immediately filing charges. Id.; see
also Doc. 249 at 1.
March 12, 2012, the Drug Enforcement Agency (DEA) sent
written notice of the February 2012 seizure by certified
mail, return receipt requested, to each of three separate
addresses: (1) Room 229 of the Anchorage Inn in South
Burlington; (2) an address in Tignall Georgia; and (3) an
address in Newport News, Virginia. Hill, 2014 WL
971748, at *1. The notices sent to the Anchorage Inn and
Virginia were returned to the DEA undelivered. On March 14,
2012, the DEA received a return receipt indicating an
individual signed to accept delivery of the notice sent to
Georgia. The DEA then published notice of the seizure in the
Wall Street Journal one day per week for three
successive weeks in late March and early April. Id.
The mailed notices stated the deadline to file a claim was
April 16, 2012, or if the mailed notice was not received, the
published notice stated that the deadline to file a claim was
May 10, 2012. (Doc. 247-1 at 4, 7, 9, 11, 13.)
alleges he did not receive any written notice of the seizure,
and that his father, Melvin Hill, Sr., was the individual who
signed for the notice sent to the Georgia address.
Id.; see also Doc. 249 at 2. In April 2012,
a confidential informant advised law enforcement that Hill
was still distributing narcotics in Burlington and was
staying at the Ho Hum Motel. (PSR at 10.) On April 19, 2012,
the grand jury returned an indictment charging Hill with
conspiracy to distribute cocaine in violation of 21 U.S.C.
§§ 846, 841(a)(1), 841(b)(1)(B) and this Court
issued an arrest warrant for Hill. (Docs. 14, 19.) On May 7,
2012, Detective Merchand arrested Hill at the Quality Inn in
South Burlington, Vermont and seized approximately $1,
Hill, 2014 WL 971748, at *1; see also Doc.
225 at 1; Doc. 259 at 2. Hill was detained pending trial.
29, 2012, having received no claims for the currency, the DEA
issued a Declaration of Forfeiture. (Doc. 247-1 at 16.) On
October 2, 2012, Hill pleaded guilty to one count of
conspiracy to distribute cocaine base. See Doc. 103;
Dkt. Entry No. 116. On February 4, 2013, he was sentenced to
70 months in prison. (Doc. 166.)
regard to the February 2012 seizure, on August 6, 2013,
representing himself, Hill moved under Rule 41(g) for the
return of the currency seized during February 2012. (Doc.
222.) He asserted the currency was illegally seized, and he
did not receive notice of the seizure with sufficient time to
challenge forfeiture. Id. at 2. Hill requested the
return of $2, 200, plus interest, and demanded a total sum of
$2, 400. Id. at 5. Hill concedes that law
enforcement returned $200. (Doc. 249.) On January 21, 2014,
Hill moved to set aside the civil forfeiture of the property
seized in February 2012 under 18 U.S.C. § 983(e),
asserting the government failed to take reasonable steps to
provide him notice and that he did not receive notice. (Docs.
249, 253.) The government argues the DEA properly
effected an administrative forfeiture of the seized currency
in accordance with 18 U.S.C. § 983 and 19 U.S.C. §
1607, and Hill's claim was barred by the doctrine of
sovereign immunity. (Doc. 247 at 3-5.)
regard to the May 2012 seizure, on September 12, 2013, again
representing himself, Hill moved under Rule 41(g) for the
return of the currency seized on May 7, 2012, plus interest.
(Doc. 225.) The government did not oppose the motion. (Docs.
230, 247 at 2.) The government's response, however,
suggested that law enforcement seized $1, 572, not $1, 100,
during the May 7, 2012 arrest. See Doc. 247 at 2.
March 12, 2014, this Court issued an Opinion and Order
denying Hill's motions under Rule 41(g) for return of the
$2200 seized in February (Docs. 222, 233), granting in part
and denying in part the motion under Rule 41(g) for return of
the $1, 100 seized in May (Doc. 225), and declining to rule
on the motion to set aside the declaration of forfeiture with
regard to the February seizure (Doc. 249). Hill,
2014 WL 971748. The Court held the Rule 41(g) motions
regarding the February seizure were barred by sovereign
immunity, id. at *3, and, because the government did
not oppose the motion, granted Hill's Rule 41(g) motion
for return of the currency seized in May but denied his
request for prejudgment interest because sovereign immunity
precluded the award. Id. at *5.
regard to the motion to set aside the civil forfeiture of
currency seized in February, this Court held the
Government's sovereign immunity defense did not apply to
Hill's § 983(e) motion challenging notice.
Id. at *4. Because 18 U.S.C. § 983(e) provides
“the exclusive remedy for seeking to set aside
a declaration of forfeiture under a civil forfeiture statute,
” 18 U.S.C. § 983(e)(5) (emphasis added), it is an
express waiver of sovereign immunity for purposes of
notice-based challenges to executed forfeitures.
Hill, 2014 WL 971748, at *4 (citations omitted).
Section 983(e) allows a court to grant a motion to set aside
a declaration of forfeiture if the government knew of the
moving party's interest and failed to take reasonable
steps to provide notice and the party did not know of the
seizure to file a timely claim. 18 U.S.C. §
983(e)(1)(A)-(B). This Court found it:
lack[ed] the information necessary to evaluate whether the
Government failed to take reasonable steps to provide Hill
with notice of the seizure. The Court cannot discern . . .
how the three addresses the DEA used were selected or whether
the Government might have used a different address.
Therefore, the Court will hold the matter open. The parties
shall submit supplemental briefing, with accompanying
affidavits, on the issue of whether the Government took
reasonable steps to provide Hill with notice of the seizure
and whether the notices sent by DEA were reasonably
calculated under all the circumstances to apprise Hill of the
With respect to the Government's argument that Hill
should have known of the seizure and cannot satisfy §
983(e)(1)(B), the Court credits Hill's argument that he
could not have known whether Burlington Police Department or
the federal government ultimately took possession of the
currency. . . . [T]he currency was seized by DEA Special
Agents and Detectives from the Burlington Police Department.
Although Hill knew the currency was seized, the issue is
whether he knew or should have known of the seizure for
purposes of filing a timely claim. Without knowing which law
enforcement agency ultimately took possession, Hill could not
have known where to file. Therefore, Hill's claim
satisfies the second element of § 983(e).
Hill, 2014 WL 971748, at *5 (internal quotation
marks and citations omitted).
March 12, 2014, Hill filed a second motion under Rule 41(g)
to return property seized on May 7, 2012. (Doc.
255.) Hill seeks the return of an
“estimated $500” belonging to him but allegedly
improperly returned to another individual who was also
present at the time of the arrest, personal property
including “clothes, jewelry, playstation 3, and
games” worth $750, and 6% interest on the total amount
of cash seized in May 2012. Id. at 2-3. Hill
concedes the Government had returned $1, 022. Id. at
March 28, 2014, the Government opposed the motion arguing
Hill's claim to the additional money seized is barred by
sovereign immunity because the money has been returned to the
other individual and is no longer in the Government's
possession. The Government represented that $1, 100 had been
returned to Hill but also stated that “law enforcement
may still be in possession of about $500 cash seized from
Hill in May 2012.” (Doc. 259 at 2 & n.1.) With
regard to the personal property and prejudgment interest, the
Government argues Hill's claims are barred by the
doctrine of sovereign immunity. Id.
April 15, 2014, in accordance with the Court's March 12
Order, the Government filed its supplemental brief together
with an affidavit of DEA Special Agent Thomas L. Doud. (Docs.
262, 262-1.) On April 21, Hill filed a supplemental document
including an affidavit and exhibits in further support of his
§ 983(e) motion. (Doc. 263.) On May ...