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United States v. Mitchell

United States District Court, D. Minnesota

March 8, 2019

United States of America, Plaintiff,
v.
Kareem Karel Mitchell, Defendant.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's pro se motion request for extension of time “to properly prepare and address Forfeiture proceedings for cause.” (Doc. No. 237.) The United States of America (“the government”) opposes defendant's pro se motion. (Doc. No. 250.)

         PROCEDURAL HISTORY

         On October 18, 2017, the grand jury returned an Indictment against the defendant setting forth Forfeiture Allegations pursuant to 21 U.S.C. §§ 853(a)(1) and (2). The Indictment specifically stated and gave notice that the forfeiture applied to “any and all property constituting, or derived from, any proceeds the [defendant] obtained directly or indirectly as a result of said violations [charged in Count 1 of the Indictment], and any and all property used, or intended to be used, in any manner or part to commit or facilitate the commission of said violations.” (Doc. No. 1 at 8.)

         On February 27, 2018, the defendant pled guilty to Count 1 of the Indictment, which charged him with conspiracy to distribute 100 grams or more of mixtures or substances containing a detectable amount of heroin, cocaine base, and cocaine. See Plea Agreement and Sentencing Stipulations (“Plea Agreement”) (Doc. No. 155). Pursuant to the Plea Agreement and before this Court during the plea hearing, the defendant admitted that the government “found $39, 064 in drug-related money” in his bedroom closet, which included currency from a September 21 controlled buy. (Id. ¶ 2.) Moreover, the government seized additional controlled substances from the defendant at that time.

         Significantly, in the Plea Agreement, the defendant clearly consented to the forfeiture of the currency and a gun, as follows:

The Defendant agrees to forfeit to the United States, pursuant to Title 21 United States Code, Section 853(a)(1) and (2), any property constituting, or derived from, any proceeds obtained, directly or indirectly, as a result of [Count 1 of the Indictment] and any property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of that offense, including, but not limited to $39, 064.00 in United States Currency seized from defendant's residence on or about September 27, 2017, and a SKS 7.62 caliber rifle, serial number 43478, along with any ammunition and accessories, seized from a search of another residence held in defendant's name on September 22, 2017.

         The Plea Agreement, like many similar plea agreements and sentencing stipulations addressing forfeiture, clearly resulted in the defendant abandoning his interest in the $39, 064, and the defendant clearly waived all statutory and constitutional defenses to the forfeiture.

         On July 19, 2018, the Court granted the government's motion for a Preliminary Order of Forfeiture that included the currency and rifle noted above. (Doc. No. 180.) Then, on September 12, 2018, the Court amended the Preliminary Order of Forfeiture to remove two unrelated assets seized from a different defendant. (Doc. No. 202.) This Court sentenced the defendant on September 24, 2018. There were no objections to the forfeiture before the plea, during the plea, or during his sentencing.

         DISCUSSION

         This Court states at the outset that the extension of time requested in the defendant's motion to “properly prepare and address forfeiture proceedings, ” which is pro se, is in clear violation of the Plea Agreement and applicable law.

         I. Federal Rules of Civil Procedure and Federal Rules of Appellate Procedure

         As observed by the government, the defendant's motion was filed pursuant to Federal Rule of Civil Procedure, Rule 4(5)(A)(ii). (Doc. No. 237 at 1.) Whether there was a typographical error or other mistake, as observed by the government, no such rule exists. Significantly, however, this is a criminal case to which the Federal Rules of Civil Procedure do not apply. The Federal Rules of Civil Procedure cannot be used to directly or indirectly set aside a criminal forfeiture imposed as part of a criminal sentence. United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (per currium) (holding that a Federal Rule of Civil Procedure could not be used as a vehicle for setting aside a criminal forfeiture imposed as part of criminal sentence).

         As observed by the government, the Federal Rules of Appellate Procedure, by their express terms, apply only to civil cases. ...


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