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United States v. Flemming

United States District Court, E.D. Michigan, Southern Division

November 29, 2017

IRVIN FLEMMING D-13, Defendant.



         Defendant Irvin Flemming was convicted of structuring financial transactions in violation of 31 U.S.C. § 5324(a)(1) and/or (3) and (d)(1). ECF 592, PgID 9405. He appealed his conviction and 24-month sentence; the Court of Appeals affirmed both. ECF 628. He now brings four pro se motions. The Court will deny the motions.

         I. Motion for Recusal [661]

         Flemming moved for the Court to recuse itself, on the grounds that a reasonable person would question its impartiality. In support, he relies on 28 U.S.C. §§ 144 and 455. Section 144 directs a party who believes that the judge who is presiding over his action "has a personal bias or prejudice either against him or in favor of any adverse party, " to file an affidavit which states "the facts and the reasons for the belief that bias or prejudice exists[.]" 28 U.S.C. § 144. Upon receipt of the affidavit, the "judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." Id. Section 455 explains when a judge should disqualify himself and lists several specific circumstances. 28 U.S.C. § 455.

         None of the reasons for recusal listed in § 455 are present here. The Court's former role as United States attorney has no bearing on "the merits of the particular case in controversy[.]" 28 U.S.C. § 455(b)(3). Flemming's intended, future lawsuits are likewise irrelevant to assessing bias in this case. And Flemming has failed to explain how the Court's speed in resolving his motions would demonstrate bias or a lack of impartiality.

         The motion will be denied.

         II. Motion for Government to Return Personal Property [527]

         Prior to sentencing, Flemming filed a motion asking the Court to order the return of architectural plans and the title to a 2007 Rolls-Royce automobile, both of which he alleged were his personal property. ECF 527. The Government first responded that both the title and the plans were seized pursuant to a search warrant of a co-defendant's house. ECF 534. Two days later, the Government corrected itself in an amended response: the plans were seized in the search of the house, but the title was obtained through a grand-jury subpoena. ECF 535. The Government agreed to return the title and evidently did so. See Id. at PgID 5719; ECF 632, PgID 10365 (noting that the AUSA "returned the title to [Flemming's] Rolls Royce on April 14, 2015"). So only Flemming's request for the blueprints remains.

         Flemming relies on Rule 41(g) of the Federal Rules of Criminal Procedure, which provides in pertinent part, "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return." Fed. R. Crim. P. 41(g). The general rule under Rule 41 is that "seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated." United States v. Hess, 982 F.2d 181, 186 (6th Cir. 1992). But the burden of proof for a Rule 41(g) claim is on the claimant of the property, and the claimant must show that he is "lawfully entitled to possess" the property. Savoy v. United States, 604 F.3d 929, 932-33 (6th Cir. 2010).

         Flemming has failed to prove that he is a "person aggrieved by an unlawful search and seizure." In his motion, Flemming does not challenge the legality of the search and seizure in question. Flemming has also failed to prove that he is "lawfully entitled to possess the property, " and does not make any showing as to why the plans should be returned to him rather than to Carlos Powell, from whom the plans were seized.

         III. Motion for Relief from Judgment [632] and Motion for Leave [638]

         Flemming appears to seek relief from a criminal judgment on the grounds of alleged improprieties by the Government. The title of the motion mentions the "Fruit of the Poisonous Tree Doctrine" and much of the brief consists in allegations of wrongdoing by Kevin Boudreau (a private investigator hired by the Government) and Assistant U.S. Attorney Julie Beck. He states that he seeks relief pursuant to Rule 60 of the Federal Rules of Criminal Procedure, but that rule concerns "Victim's Rights" and is not pertinent to the complaints and assertions raised in Flemming's brief. It seems Flemming is actually seeking relief under Rule 60 of the civil rules: that rule concerns when a movant can receive relief from a judgment or order. And it is the civil rule that Flemming included a copy of and is discussed in the cases cited by Flemming.

         But Civil Rule 60 is inapposite. "A party may not seek relief from a criminal sentence under Fed.R.Civ.P. 60(b), because Rule 60(b) is not applicable to criminal proceedings." United States v. Diaz, 79 Fed.Appx. 151, 152 (6th Cir. 2003). Any relief would come through an appeal (which he pursued) or a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (which the Court addresses below). See ECF 661, PgID 10605.

         Flemming's motion for relief under Civil Rule 60, as well as his motion asking the Court ...

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