United States v. Cubie
United States v. Cubie
Opinion of the Court
ORDER
Mark Cubie appeals the denial of his motion under Federal Rule of Criminal Procedure 41(g) for the return of property that police seized during the investigation that led to his drug and firearm prosecutions. He contends that the district court should have conducted an evidentiary hearing to resolve certain factual questions. We affirm.
After Cubie pleaded guilty to conspiring to distribute cocaine and marijuana and carrying a firearm during that crime, United States v. Nicksion, 628 F.3d 368 (7th Cir. 2010), he moved under Rule 41(g) for the return of seized property. First, during a traffic stop after a controlled buy in a parking lot, police had found approximately $200 in currency on Cubie and another $6,500 when they searched his Cadillac Eldorado. Then, after releasing and eventually arresting Cubie, the police — supported by a warrant — searched his apartment and seized Cubie’s Eldorado and $10,000 more.
When the government responded to Cu-bie’s 41(g) motion that the money from the apartment was forfeited during his prosecution, Cubie abandoned his request for the return of the $10,000.
The district court then denied Cubie’s motion, noting that the car and $6,700 from the traffic stop had both been forfeited. The government submitted records of a Wisconsin court proceeding at which the Eldorado was forfeited to a local police department because it was used in the drug offense, see Wis. Stat. § 961.55(l)(d); the federal government could not return a car that it did not possess, the district court observed. The government also informed the court that the $6,700 had been administratively forfeited to the United States Drug Enforcement Agency (which assisted the investigation), and was allowed to provide documentation of the administrative forfeiture the next day. Cubie moved the court to reconsider its ruling that the car and money had been forfeited, but the court declined the request because Cubie provided no evidence to rebut the government’s records.
On appeal Cubie continues to concede that he forfeited the $10,000 seized from his apartment but insists that Rule 41(g) required the district court to conduct an evidentiary hearing to resolve two lingering factual disputes. First, he questions the chain of custody for the Eldorado. He argues that the DEA seized his car and then gave it to Wisconsin police to avoid federal forfeiture proceedings. (He attaches to his appellate brief an affidavit from a DEA agent purportedly showing that the federal agency and not local police seized the car. In the affidavit the DEA agent swears that the Eldorado “was seized subsequent to the arrest of the defendant.”) Second, he asserts that he was not informed of the DEA’s forfeiture proceedings and that the district court should have recast his request under Rule 41(g) for the return of the $6,700 as a claim of insufficient notice in violation of 18 U.S.C. § 983(e).
Contrary to Cubie’s contention, Rule 41(g) does not require district courts to
AFFIRMED.
Reference
- Full Case Name
- United States v. Mark A. CUBIE
- Status
- Published