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United States v. Cobb

United States District Court, M.D. Florida, Tampa Division

August 16, 2017



          Charlene Edwards Honeywell United States District Judge

         This cause comes before the Court upon the Report and Recommendation filed by Magistrate Judge Mark A. Pizzo on April 18, 2017, (Doc. 300). In the Report and Recommendation, Magistrate Judge Pizzo recommends that the Defendant's Motion for Return of Property (Doc. 299) be granted to the extent that the Government be directed to return the clothes and shoes to the Defendant or Defendant's representative and denied in all other respects. All parties were furnished copies of the Report and Recommendation and were afforded the opportunity to file objections pursuant to 28 U.S.C. § 636(b)(1). The Defendant, James Lee Cobb, III filed his Opposition to the Magistrate's Report and Recommendation Pursuant to Second Motion for Return of Property (the “Objection”) (Doc. 302). The Government filed its response (Doc. 303), to which Cobb replied (Doc. 304). Upon consideration of the Report and Recommendation, and upon this Court's independent examination of the file, it is determined that the Report and Recommendation should be adopted.

         I. BACKGROUND

         On November 6, 2013, a joint task force between the Tampa Police Department and the Internal Revenue Service's Criminal Investigation Unit executed a federal search warrant at Cobb's residence located at 4808 North 43rd St. Tampa, Florida 33610. Doc. 299-1 at ¶ 5. At that time, the task force removed the following property from the residence: a home monitor surveillance system DVR (“DVR”)[1]; twelve cell phones, two Galaxy Notes, five laptops, and a bag of clothing and shoes (collectively the “Property”). Id. at ¶¶ 8-9. As of the date of this Order, all of those items remain in the Government's custody. See id.

         Defendant eventually pleaded guilty to all charges in the superseding indictment in March 2015, without the benefit of a plea agreement. Doc. 134. In June 2015, the Court sentenced Cobb to twenty-seven years imprisonment. Doc. 175. The judgment entered against Cobb includes a $1, 820, 759 forfeiture money judgment and orders him to pay an equal amount in restitution. Doc. 178. The forfeiture allegations of the superseding indictment do not include the Property. The items have not been forfeited and the Government represents that it does not intend to forfeit them.

         Cobb appealed his judgment and sentence and the appellate court affirmed. See United States v. Cobb, 842 F.3d 1213, 1215 (11th Cir. 2016). Doc. 288. He now seeks return of the Property. Cobb argues that the Government lacked probable cause to seize the items in the first place, and that it has no viable reason to continue to possess any of the Property, and specifically the DVR since it lacks evidentiary value. The Government contends that it is retaining the Property as potential evidence in the event Cobb pursues a civil case pursuant to 28 U.S.C. § 2255 or until the time for him to do so elapses. But the Government stipulates that it is ready to release the bag of clothing and shoes.


         When a party makes a timely and specific objection to a Magistrate Judge's Report and Recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b)(3). With regard to those portions of the Report and Recommendation not objected to, the district judge applies a clearly erroneous standard of review. See Gropp v. United Airlines, Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993). The district judge may accept, reject, or modify in whole or in part, the Report and Recommendation of the Magistrate Judge. Fed. R. Crim. P. 59(b)(3). The district judge may also receive further evidence or resubmit the matter to the magistrate judge with further instructions. Id.


         Rule 41(g) provides:

Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district court where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must then return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

Fed.R.Crim.P. 41(g).

         “When an owner invokes Rule 41(g) after the close of all criminal proceedings, the court treats the motion for return of property as a civil action in equity.” United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005). See also United States v. Watkins, 210 Fed.Appx. 891, 894 (11th Cir. 2006). To invoke Rule 41(g), the movant must first show that he had a possessory interest in the seized property. Id. Second, “in order for a district court to grant a Rule 41(g) motion, the owner of the property must have clean hands.” Id. (citation omitted). “The unclean hands doctrine proscribes equitable relief when, but only when, an individual's misconduct has ‘immediate and necessary relation to the equity that he seeks.' The doctrine might apply, for example, if a felon requests the return or transfer of property used in furtherance of his offense.” Henderson v. U.S., 135 S.Ct. 1780, 1783 (2015) (internal citation omitted). See also United States v. Garcon, 406 Fed.Appx. 366, 369 (11th Cir. 2010) (stating that courts can deny Rule 41(g) motions if “the defendant is not entitled to lawful possession of the seized property, the property is contraband or subject to forfeiture, or the government's need for the property as evidence continues.”). Nonetheless, “if the government wishes to retain the property, it must have and state a legitimate reason for doing so.” Garcon, 406 Fed.Appx. at 369 (citing United States v. Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001)).

         In his Objection and reply, Cobb argues that the Government did not demonstrate probable cause to seize the items at the time of the execution of the search warrant. The Court will not revisit the probable cause inquiry regarding the seizure of the items on this Motion as it is not the proper vehicle to do so.[2]See U.S. v. Sims, 376 F.3d 705, 708 (7th Cir. 2004) (“The proper office of a Rule 41(g), motion is, before any forfeiture proceedings have been initiated, or before any criminal charges have been filed, to seek the return of property seized without probable cause, or property held an unreasonable length of time without the institution of proceedings that would justify the seizure and retention of the property.”). Cobb also references an inventory list from a matter with the case number ...

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