UNITED STATES v. ELLISON (2021)

MEMORANDUM AND ORDER

Defendant Donald Keith Ellison (“Ellison”) has moved the Court to (i) order the release, pending trial, of certain properties seized by the government, and (ii) lift the stay of the parallel civil forfeiture case. (Docket No. 167.)¹ The government observes that the remedies Ellison seeks are tied to that civil forfeiture case. (Docket No. 171 at p. 1.) The government additionally requests the Court allow, subject to the protective order in this case, the disclosure to Ellison and defendant Ahsha Nateef Tribble (“Tribble”) of an affidavit supporting the verified complaint in the parallel civil forfeiture case. Id. at p. 8; see Civil No. 19-1693, Docket No. 2, Ex. 1 (affidavit).

Ellison has filed his motion in the wrong proceeding. Ellison's motion applies to the civil forfeiture proceeding in Civil No. 19-1693.

The property at issue is being restrained pursuant to civil forfeiture proceedings. See Civil No. 19-1693, Docket Nos. 2, 7, 9. The materials before the Court do not show that the government has restrained the property pursuant to criminal law. Even though the property at issue was included in the forfeiture allegations of the criminal indictment, (Docket No. 3 at pp. 46–48) the materials before the Court do not show that the government has taken the steps to restrain the property outlined by 21 U.S.C. section 853 or other parts of the criminal code, cf. United States v. Young, Crim. No. 12-502, 2013 WL 1341396, at *1–3 (D. Utah Apr. 3, 2013) (granting government's motion to maintain custody of civilly seized property pursuant to criminal forfeiture proceedings). Accordingly, civil forfeiture law determines the government's continued possession. See 18 U.S.C. § 983(a)(3)(C) (“If criminal forfeiture is the only forfeiture proceeding commenced by the Government, the Government's right to continued possession of the property shall be governed by the applicable criminal forfeiture statute.”); United States v. Goodchild, 347 F. Supp. 3d 258, (E.D. Pa. 2018) (holding that the government's commencement of a civil forfeiture proceeding meant that “the continued possession of the property seized pursuant to the civil seizure warrant remains controlled by § 983 rather than the criminal statutes”); United States v. Capoccia, Crim. No. 03-35, 2011 WL 1930677, at *6 (D. Vt. May 19, 2011) (“The Government's authority to restrain the property named in the civil complaint was, at the time of seizure, governed by the civil forfeiture statute.”).

The stay of the civil forfeiture proceeding was entered in that proceeding. Civil No. 19-1693, Docket No. 6. The Court will not consider a collateral attack of that stay through this criminal proceeding. Cf. Alley v. U.S. Dep't of Health & Human Servs., 590 F.3d 1195, 1203–04, 1209–10 (11th Cir. 2009) (refusing to consider collateral attack on injunction); Acevedo-López v. H&R Block Tax Servs., LLC, Civ. No. 15-1240, 2015 WL 5770090, at *1 (D.P.R. Sept. 30, 2015) (Carreño-Coll, J.) (same).

Last month, in the civil forfeiture case, another judge of this district ordered, “Being there is no objection by District Judge Francisco A. Besosa, who presides over the related criminal matter CR. 19-0541 (FAB), the request for consolidation is Granted.” (Civil No. 19-1693, Docket No. 24.) The request mentioned in that order, however, was for a transfer to this Court, see Civil No. 19-1693, Docket No. 23 at p. 6, and it was that request to which this Court did not object. Consolidation of the civil forfeiture proceeding with this criminal case is not appropriate. See United States v. St. Pierre, 188 F.R.D. 415, 417 (M.D. Fla. 1999). The civil forfeiture case is not consolidated with this criminal case. See Civil No. 19-1693, Docket No. 26. It was recently transferred to this Court. See Civil No. 19-1693, Docket No. 25.

For the reasons discussed above, Ellison's motion is DENIED. The government's request is GRANTED. The Clerk shall make the affidavit at Civil No. 19-1693, Docket No. 2, Ex. 1 available to defendants Ellison and Tribble.

IT IS SO ORDERED.

FOOTNOTES

1.   All docket references are to Criminal No. 19-541 unless otherwise indicated.

BESOSA, District Judge.