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United States v. Hill

United States District Court, D. Vermont

August 13, 2019

UNITED STATES OF AMERICA
v.
MELVIN K. HILL

          OPINION AND ORDER (DOCS. 249, 253, 255)

          William K. Sessions III District Court Judge.

         Defendant 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.)[1] 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.

         Factual Background and Procedural History

         On 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.

         On 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.)

         Hill 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, 100.[2] Hill, 2014 WL 971748, at *1; see also Doc. 225 at 1; Doc. 259 at 2. Hill was detained pending trial. (Doc. 46.)

         On May 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.)

         With 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[3].) 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.)

         With 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.

         On 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[4] but denied his request for prejudgment interest because sovereign immunity precluded the award. Id. at *5.

         With 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 seizure.
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).

         Also on March 12, 2014, Hill filed a second motion under Rule 41(g) to return property seized on May 7, 2012. (Doc. 255.[5]) 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 1.

         On 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.[6] Id.

         On 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 ...


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