United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR RETURN OF PROPERTY
L. LUDINGTON United States District Judge.
October 17, 2016 Lee Henry Berry filed a motion for the
return of certain property pursuant to Federal Rule of
Criminal Procedure 41(g). Rule 41(g) permits a person
aggrieved by an unlawful search and seizure or the
deprivation of property to move for the property's
return. Such a motion “must be filed in the district
where the property was seized.” Id. Because
the property at issue was seized by the Bay City Police
Department in connection with a state court arrest, this
Court does not have jurisdiction over the property.
Berry's motion will therefore be denied.
April 29, 2005, Berry was arrested by the Bay City Police
Agency for violating the terms of his probation by failing to
notify his agent of an address change. During the course of
the arrest, the Bay City Police Department seized property
belonging to him, including the following: (1) a 2001
Cadillac Deville; (2) a 1999 Ford Expedition; (3) a 2002
Chevrolet Monte Carlo; and (4) $429.00 in United States
concurrency. See ECF No. 2. Berry was found guilty
in Michigan state court for violating the terms of his
probation and sentenced to 7.5 years in prison in Case Number
the course of the arrest, the Bay City Police Department
discovered incriminating evidence including drugs, drug
paraphernalia, and firearms that gave rise to charges in this
Court. See United States v. Lee Henry Berry, Case
No. 05-20048 (E. D. Mich., Jan. 9, 2006). On September 10,
2007, Defendant Lee Henry Berry was convicted of possession
with intent to distribute less than 5 grams of cocaine base,
21 U.S.C. § 841(a)(1); possession with intent to
distribute 5 grams or more of cocaine base, 21 U.S.C. §
841(a)(1); possession with intent to distribute less than 500
grams of cocaine, 21 U.S.C. § 841(a)(1); and felon in
possession of one or more firearms, 18 U.S.C. §
922(g)(1). Id. at ECF No. 73. On December 21, 2007,
he was sentenced to a term of 360 months' imprisonment on
each count, to be served concurrent to each other, but
consecutive to the Michigan Department of Corrections
sentence for violating his probation. Id. at ECF No.
85. The judgment was affirmed on appeal to the Sixth Circuit.
Id. at ECF No. 101. Berry's subsequent
collateral attacks to his conviction and sentence were
denied. Id. at ECF Nos. 112, 147, 158.
October 17, 2016 Berry filed a Rule 41(g) motion for the
return of the three automobiles and $429.00 seized by the Bay
City Police Department. See ECF No. 1. On November
14, 2016 the Government filed a response, arguing that this
Court does not have jurisdiction over the subject property.
See ECF No. 2. Attached to its response the
Government has provided the Notice of Seizure, dated April
30, 2005, prepared by the Bay City Police Department listing
the property at issue. Id. at Ex. A. The Notice sets
forth the procedure for challenging the forfeiture of the
listed property, explaining that to challenge the forfeiture
Berry would need to file a claim with the Bay City Police
Department indicating his interest in the property and post a
bond in the amount of 10% of the value of the property.
Id. The notice further explains that any challenge
would need to be made within 20 days of receiving the notice
or the property would be disposed of according to law.
Id. Based on the certificate of service attached to
the notice, Berry was served on May 3, 2005. Id.
Berry has not provided any evidence that he timely filed a
claim or posted bond.
motion, Berry admits that the property at issue was seized by
the Bay City Police Department, not by any federal agents.
“Rule 41([g]) is an equitable remedy, …
available to [the movant] only if he can show irreparable
harm and an inadequate remedy at law.” United
States v. Copeman, 458 F.3d 1070, 1071 (10th Cir. 2006)
(citing Clymore v. United States, 164 F.3d 569, 571
(10th Cir. 1999)). Generally, where subject property was
seized pursuant to state court proceedings and the state
provides avenues of relief, a claimant cannot show an
inadequate remedy at law such that he is entitled to Rule
41(g) relief in federal court. Id. A limited
exception exists where a defendant satisfies his burden of
showing real or constructive possession of the property by
the federal government. See United States v. Obi,
100 F. App'x 498, 499 (6th Cir. 2004).
seized and held by state law-enforcement officers is not in
the constructive possession of the United States for Rule
41(g) purposes unless it is being held for potential use as
evidence in a federal prosecution.” Copeman,
458 F.3d at 1072. Possession by the federal government may
also be found under an agency theory in instances
“where property was seized by state officials acting at
the direction of federal authorities in an agency
capacity.” Id. However, the fact that federal
and state authorities are working pursuant to a joint task
force does not necessarily mean that there was a federal
authorization or an agency relationship between federal and
state authorities. In a joint task force, the state typically
works with the federal government, not for the federal
government. See United States v. Marshall, 338 F.3d
990, 994-95 (9th Cir. 2003).
has not presented any evidence that the federal government
was ever in actual or constructive possession of the relevant
property. Rather, the property was seized by state municipal
police officers in the course of a state arrest, and the
notice of seizure clearly indicates that any claim for the
return of property needed to be made with the Bay City Police
Department. Berry has not presented any evidence that the
automobiles or cash were ever held as potential evidence for
the prosecution in this Court. See Copeman, 458 F.3d
at 1072; see also United States v. Solis, 108 F.3d
722, 723 (7th Cir. 1997) (“Nor does the record
affirmatively establish that the vehicle was ever considered
evidence in the federal prosecution; therefore, even if we
were to accept the concept of constructive possession,
… there would be no basis for relief.”). Nor has
Berry presented any evidence that the relevant property was
seized by the local police at the direction of the federal
government. See Copeman, 458 F.3d at 1072.
Berry has not met his burden of showing actual or
constructive possession of the relevant property by the
United States, and because Berry had an adequate remedy at
law in the courts of the State of Michigan, his motion will
it is ORDERED that Berry's motion for the return of