United States of America v. Los Rovell Dahda

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LOS ROVELL DAHDA,
Defendant - Appellant.
No. 20-3185
(D.C. No. 2:12-CR-20083-DDC-1)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY, and HOLMES, Circuit Judges.
_________________________________
Los Rovell Dahda appeals from the district court’s denial in part and dismissal
in part of his pro se motion to return seized property filed under Federal Rule of
Criminal Procedure 41(g). Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 20, 2021
Christopher M. Wolpert
Clerk of Court
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I. Background
Mr. Dahda was convicted of numerous drug-related offenses including a
conspiracy involving 1,000 kilograms or more of marijuana and maintaining a
drug-involved premises. This court upheld his convictions and prison sentence, but
reversed the district court’s imposition of a fine of almost $17 million as exceeding
the statutory maximum. On remand, the district court waived the fine and sentenced
Mr. Dahda to a shorter prison term. He filed a second appeal and we affirmed.
The current appeal involves Mr. Dahda’s filing of a Rule 41(g) motion in the
district court seeking the return of the following seized property: (1) a Dodge Ram
truck, (2) a Harley Davidson motorcycle, (3) four Bank of America cashier’s checks
worth $36,865.42, and (4) $84,700 seized from a FedEx package. The Drug
Enforcement Agency (DEA) gave Mr. Dahda notice that the truck, motorcycle, and
cashier’s checks were subject to civil forfeiture pursuant to 21 U.S.C. § 881, which
extends to proceeds traceable to illegal drug trafficking, see id. § 881(a)(6). The
forfeiture notices advised that Mr. Dadha could petition for remission or mitigation, 1
he could contest the seizure and forfeiture of the property in federal court, or he
could do both. Mr. Dahda submitted responses to the forfeiture notices, each labeled
as a “PETITION FOR REMISSION OF PERSONAL PROPERTY PURSUANT TO
TITLE 28 CFR [PART-9],” and he also used the heading “REMISSION
1 “A petition for remission or mitigation does not serve to contest the
forfeiture, but rather is a request for an executive pardon of the property based on the
petitioner’s innocence.” United States v. Shigemura, 664 F.3d 310, 312 (10th Cir.
2011) (ellipsis and internal quotation marks omitted); see also 28 C.F.R. § 9.1(a).
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REQUESTED.” 1st Suppl. R. at 196-97, 214-15, 249-50. But Mr. Dahda’s
submissions also contested the seizure of the truck, motorcycle, and cashier’s checks
and stated he would raise objections to the forfeiture claims, asserting he had not
acquired the seized property by illegal means. See id. The DEA sent Mr. Dahda
letters returning his submissions and seeking clarification whether he intended to file
a claim or a petition for remission or mitigation or both. The DEA gave Mr. Dahda
additional time to respond. When Mr. Dahda submitted nothing further, the DEA
administratively forfeited the truck, motorcycle, and cashier’s checks.
The $84,700 was treated differently for forfeiture purposes. In connection
with the resolution of his criminal case, one of Mr. Dahda’s co-defendants,
Peter Park, agreed to forfeit $84,700 that had been seized from a FedEx package that
Mr. Park had shipped to another co-defendant. Mr. Park agreed the money
constituted or was derived from proceeds as a result of the drug conspiracy. After the
government published notice of the preliminary order of forfeiture in Mr. Park’s case,
Mr. Dahda filed a petition for hearing pursuant to 21 U.S.C. § 853(n)(2) asserting a
legal interest in the $84,700.
In his Rule 41(g) motion, Mr. Dahda sought return of the truck, motorcycle,
cashier’s checks, and the $84,700 seized from the FedEx package. As to the $84,700,
the district court dismissed his motion because he had an adequate remedy at law in
the ancillary forfeiture proceeding under § 853(n)(2) in his co-defendant Mr. Park’s
criminal case. Regarding the truck, motorcycle, and cashier’s checks that had been
administratively forfeited, the court construed Mr. Dahda’s motion as requesting
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relief under the Civil Asset Forfeiture Act of 2000 (CAFRA), 18 U.S.C. § 983(e). It
then considered and rejected his claim that the DEA did not provide adequate notice
or due process in the administrative forfeiture proceedings. The court concluded:
The DEA reasonably could not ascertain whether Mr. Dahda intended to
file a claim, a petition for remission, or both. And so, it sent Mr. Dahda
notices asking him to clarify his intent. The notices advised Mr. Dahda that
if he did not submit a timely response, the DEA could treat the original
documents as nullities. The DEA’s failure to construe Mr. Dahda’s initial
submissions as ‘claims’ did not violate due process principles because he
received a clarification letter and he had an opportunity to resubmit the
documents as claims after receiving that clarification.
R., Vol. 2 at 156. The district court ultimately denied Mr. Dahda’s motion as to the
truck, motorcycle, and cashier’s checks.
II. Discussion
Rule 41(g) provides:
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 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 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). Equitable principles govern the assumption of jurisdiction
under Rule 41(g). See United States v. Deninno, 103 F.3d 82, 84 (10th Cir. 1996). 2
We review the district court’s rulings on Mr. Dahda’s Rule 41(g) motion for an abuse
of discretion. See id. In doing so, we review questions of law de novo and factual
determinations for clear error. See United States v. Hardman, 297 F.3d 1116, 1120
2 “What was formerly Rule 41(e) is now Rule 41(g), with only stylistic
changes.” Shigemura, 664 F.3d at 311 n.1 (internal quotation marks omitted).
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(10th Cir. 2002). Because Mr. Dahda is proceeding pro se, “we liberally construe his
filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315
(10th Cir. 2013).
A. $84,700 Seized from a FedEx Package
The district court dismissed Mr. Dahda’s motion seeking return of the $84,700
that had been seized from a FedEx package sent by Mr. Park because Mr. Dahda had
an adequate remedy at law in the ancillary forfeiture proceeding under § 853(n)(2) in
Mr. Park’s criminal case. The district court did not err in doing so because “[a] Rule
41([g]) motion should be dismissed if the claimant has an adequate remedy at law,”
Deninno, 103 F.3d at 84 (internal quotation marks omitted), and a judicial forfeiture
action is an adequate remedy at law, see Frazee v. IRS, 947 F.2d 448, 449-50
(10th Cir. 1991) (affirming dismissal of a Rule 41(g) motion where the property was
subject to a judicial forfeiture action). We note that, in the § 853(n)(2) proceeding,
Mr. Dahda was able to raise, and the district court ruled on, his challenges to the
forfeiture of the $84,700. See 2d Suppl. R. at 102-14.
B. Truck, Motorcycle, and Bank of America Cashier’s Checks
Under CAFRA, if a claim is filed in response to a civil forfeiture notice, the
government must file a judicial forfeiture complaint within 90 days or return the
property pending the filing of a complaint. See 18 U.S.C. § 983(a)(3)(A). “A claim
need not be made in any particular form,” id. § 983(a)(2)(D), but it must (1) “identify
the specific property being claimed,” (2) “state the claimant’s interest in such
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property,” and (3) “be made under oath, subject to penalty of perjury,” id.
§ 983(a)(2)(C).
Mr. Dahda contends that he has a right to a judicial forfeiture proceeding
notwithstanding that the truck, motorcycle, and cashier’s checks were
administratively forfeited. He bases this assertion on a claimed due process violation
committed in the administrative forfeiture proceeding—namely, that the DEA did not
construe his submissions in response to the forfeiture notices as claims when he
failed to respond to the DEA’s letters seeking clarification.
Mr. Dahda relies on Deninno, which allowed a collateral due process attack
notwithstanding an administrative forfeiture. 103 F.3d at 84. In Deninno, we
exercised jurisdiction to “decid[e] whether the forfeiture offended due process
rights.” Id.3 But even under Deninno, Mr. Dahda’s claims fail.
To succeed on a Rule 41(g) motion, the movant must demonstrate both lawful
and equitable entitlement to the property. United States v. Clymore, 245 F.3d 1195,
1201-02 (10th Cir. 2001) (“If a motion for return of property is made while a
criminal prosecution is pending, the burden is on the movant to show that he or she is
entitled to the property”—“both lawfully and equitably.” (internal quotation marks
3 We recognize that, pursuant to 18 U.S.C. § 983(e)(5), a motion filed under
§ 983(e) is “the exclusive remedy for seeking to set aside a declaration of forfeiture
under a civil forfeiture statute.” But we need not address the precise contours of that
remedy because neither party in this appeal argues that a court may not consider
whether a forfeiture proceeding violated due process. See Aplee. Br. at 17 (stating
that § 983(e) “would allow the court to review the administrative forfeitures for any
due process violations”).
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omitted)). 4 After concluding that the movant’s due process claim in Deninno was
“not inconceivable” based on the record, 103 F.3d at 85, we turned to the merits of
his Rule 41(g) motion, stating that the court could affirm the district court’s decision
on any ground supported by the record, id. at 85 & n.2. We concluded the motion
should be dismissed as frivolous pursuant to the precursor to 28 U.S.C.
§ 1915(e)(2)(B)(i) because the movant offered no plausible legal theory to challenge
the forfeitures; each of his allegations were “precluded by clear precedent.” Id. at 85.
More specifically, we noted that the movant had been convicted of conspiracy
to manufacture, possession with intent to distribute, and maintaining a place to
manufacture methamphetamine—and that all of the property at issue was seized from
the location where he was carrying out these crimes. Id. at 86. Yet his motion
“fail[ed] to offer any reason why the property at issue [was] not subject to forfeiture
under [§ 881],” and we reasoned that “[u]psetting the forfeitures because of the
alleged procedural faults, when Mr. Deninno appears to have no basis for the return
of the property once the faults are remedied in new proceedings, would serve no
purpose other than to waste limited judicial resources.” Id. We then proceeded to
reject the movant’s arguments that the forfeiture violated his Sixth Amendment right
to counsel, was an excessive fine under the Eighth Amendment, or amounted to
4 Mr. Dahda filed his Rule 41(g) motion on January 21, 2020, when his direct
appeal was still pending. See United States v. Dahda, 842 F. App’x 243, 243-44
(10th Cir. Jan. 8, 2021) (affirming after resentencing following earlier remand after
first appeal).
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Double Jeopardy. Id. at 86-87. We therefore affirmed the district court’s dismissal
of the Rule 41(g) motion on this alternative basis.
Like the movant in Deninno, Mr. Dahda’s Rule 41(g) motion raises no
plausible challenge to the forfeitures. He was required to show prejudice from any
claimed procedural defect in the forfeiture process, i.e., that his property was not
subject to forfeiture. See id. at 86. The forfeiture notices stated that the property was
subject to forfeiture pursuant to § 881. Mr. Dahda was convicted of a drug
conspiracy involving 1,000 or more kilograms of marijuana and conspiracy to
maintain drug-involved premises, as well as fourteen other drug-related charges. 5
The conspiracy was alleged to have spanned from 2005 until the middle of 2012
when he was indicted. In his Rule 41(g) motion, Mr. Dahda did not provide a reason
why the seized property was not subject to forfeiture. He instead argued the
government had not shown at his trial the required nexus between his property and
the drug offenses. But that contention ignores that the government pursued
administrative forfeiture regarding this property rather than criminal forfeiture, which
it was permitted to do, see 18 U.S.C. § 983(a)(3)(C) (permitting the government to
pursue civil and/or criminal forfeiture).
5 On resentencing, the district court found that Mr. Dahda’s attributable drug
quantity was 614.62 kilograms. See R., Vol. IV at 29, United States v. Dahda,
No. 19-3283 (10th Cir. July 24, 2020); see also United States v. Ahidley, 486 F.3d
1184, 1192 n.5 (10th Cir. 2007) (“[W]e may exercise our discretion to take judicial
notice of publicly-filed records in our court . . . concerning matters that bear directly
upon the disposition of the case at hand.”).
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Mr. Dahda also argued in his motion that his truck and the other property
could not be administratively forfeited because the truck’s value exceeded $500,000,
while 19 U.S.C. § 1607(a)(1) only permits administrative forfeiture of property with
a value not exceeding $500,000. But the district court held that Mr. Dahda’s
assertion regarding the truck’s value was frivolous based on his sworn statement after
his arrest that the truck was worth $58,000. He ignores that ruling on appeal.
Mr. Dahda further contended that the forfeitures violated the Double Jeopardy
Clause. That claim is meritless under United States v. Ursery, 518 U.S. 267, 270-71
(1996) (holding civil forfeitures “do not constitute ‘punishment’ for purposes of the
Double Jeopardy Clause”). And his excessive fines argument also lacks merit. See
United States v. Lot 41, Berryhill Farm Ests., 128 F.3d 1386, 1395-96 (10th Cir.
1997) (“Because the amount of proceeds produced by an individual drug trafficker is
always roughly equivalent to the costs that drug trafficker has imposed on society,
the forfeiture of those proceeds can never be constitutionally excessive.”). 6 We
therefore conclude that Mr. Dahda’s pro se Rule 41(g) motion seeking return of the
truck, motorcycle, and cashier’s checks should have been dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B) because his contentions are either frivolous or they fail to
state a claim on which relief may be granted. We affirm the district court’s judgment
on this alternative basis.
6 All other contentions raised by Mr. Dahda lack merit or are not relevant to
our disposition of this appeal.
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III. Conclusion
The district court’s judgment is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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