United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER RESOLVING DEFENDANT'S
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE .
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.
Motion for Recusal 
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.
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.
motion will be denied.
Motion for Government to Return Personal Property
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.
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
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.
Motion for Relief from Judgment  and Motion for
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.
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.
motion for relief under Civil Rule 60, as well as his motion
asking the Court ...