700 F.3d 1149
8th Cir.2012Background
- Bailey was arrested in 2003 in Minneapolis on prostitution-related charges; several items, including a wallet, a cell phone, and over $2,000 in cash, were seized and inventoried by police.
- Trial in 2004 led to Bailey's federal convictions for transporting a person for prostitution and possessing a firearm as a felon; the cash was used as an exhibit, but the wallet and phone were not entered into evidence.
- Bailey sought return of seized property under Rule 41(g); district court denied, this court reversed and remanded for an evidentiary hearing to determine current possession and Bailey's entitlement.
- On remand, Bailey sought to subpoena Erica MacDonald; the district court declined, concluding she had judicial immunity and she submitted a letter stating she had no information about the property.
- At the evidentiary hearing, testimony showed some exhibits were removed; cash was claimed to have been returned to the police, but records did not show the wallet, phone, or cash ever returned; police storage searches found no trace of the items.
- The government moved to dismiss Bailey's Rule 41 motion; Bailey sought to convert the Rule 41 motion into a civil damages action, but the district court dismissed the motion as moot, asserting the remand had ended its responsibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subpoena of MacDonald abuse | Bailey seeks subpoena to obtain information on the lost property. | Government contends MacDonald is immune and subpoena unnecessary. | Court declined to decide immunity; subpoena issue rendered moot by MacDonald's voluntary letter. |
| Whether district court abused in denying conversion to damages | Bailey should be allowed to convert Rule 41 motion to a damages action when property cannot be returned. | Court should treat Rule 41 dismissal as final and not allow conversion. | District court abused by denying conversion; Bailey should be allowed to convert to a damages action against the United States. |
Key Cases Cited
- United States v. Hall, 269 F.3d 940 (8th Cir. 2001) (damages may be available via an alternative federal damages claim when property is lost)
- Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748 (8th Cir. 2006) (analogy to amendment when seeking leave to convert Rule 41 action to damages)
- Peña v. United States, 157 F.3d 984 (5th Cir. 1998) (relation back under Rule 15(c)(2) for damages arising from same conduct)
- Sanchez v. United States, 49 F.3d 1329 (8th Cir. 1995) (timeliness of claims for post-conviction relief actions)
- Clymore v. United States, 164 F.3d 569 (10th Cir. 1999) (government responsibility for property treated as evidence even when in state possession)