United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court sua sponte for
reconsideration of its May 7, 2015, screening order under 28
U.S.C. § 1915A reviewing plaintiff Benjamin Barry
Kramer's motion for return of property under Federal Rule
of Criminal Procedure 41(g) and allowing it to proceed (Doc.
3). In that order, the Court acknowledged that Rule 41(g) may
not be the proper mechanism for securing the return of money
collected from the sale of seized substitute property in
excess of the forfeiture judgment against Kramer in his
criminal case. The United States filed a motion to dismiss
(Doc. 9) in which it only tangentially touched on this issue,
instead primarily challenging the Court's jurisdiction to
hear a constitutional claim under the Tucker Act, 28 U.S.C.
§ 1491(a)(1), and the timeliness such a claim. The Court
now reconsiders its decision to allow Kramer's Rule 41(g)
claim to proceed and instead dismisses it. “District
judges have ample authority to dismiss frivolous or
transparently defective suits spontaneously, and thus save
everyone time and legal expense. This is so even when the
plaintiff has paid all fees for filing and service.”
Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir.
is an inmate at the United States Penitentiary Coleman II in
Coleman, Florida. In the 1980s Kramer took part in a
“vast enterprise which imported several hundred
thousand pounds of marijuana into the United States.”
United States v. Kramer, 955 F.2d 479, 481 (7th Cir.
1992). In a fourteen-week jury trial before the Honorable
James L. Foreman in 1988, Kramer was found guilty of
conspiring to distribute marijuana and participating as a
principal administrator, organizer, or leader in a continuing
criminal enterprise (“CCE”). He was sentenced to
life imprisonment without the possibility of parole on the
CCE charge, along with a forty-year sentence on the
conspiracy charge to be served concurrently.
of his conviction, Kramer was subject to a $60 million in
personam forfeiture judgment. To satisfy this judgment
in part, the United States sought forfeiture of Kramer's
interest in the Bell Gardens Bicycle Club (“Bicycle
Club”), a casino founded using drug proceeds and used
to launder drug money, as substitute property under 21 U.S.C.
§ 853(p). Kramer's and other co-defendants'
interests in the Bicycle Club were forfeited, and the United
States sold the Bicycle Club in 1999 for $5 million. The
United States applied the proceeds attributable to
Kramer's interest toward satisfying his $60 million
forfeiture judgment. The gravamen of Kramer's complaint
is that the United States has not properly credited him for
seized assets and that the value of his seized and sold
interest in the Bicycle Club actually exceeded the $60
million forfeiture judgment in his criminal case. According
to Kramer, the United States owes him money, $18,
102, 038.16 to be exact, the amount of the alleged
Motion for Return of Property
April 15, 2015, Kramer initiated the instant action under
Rule 41(g) (Doc. 1), but there is a fundamental flaw with his
pleading. Under Rule 41(g), a prisoner may seek the return of
property seized by the United States during his criminal case
where the property is no longer needed as evidence and where
the property has not been forfeited in the criminal
proceedings. United States v. Sims, 376 F.3d 705,
708 (7th Cir. 2004). It authorizes the return of the actual
property seized as an equitable remedy, but it does not
authorize monetary relief for the value of unreturned
property no longer in the United States' possession.
United States v. Norwood, 602 F.3d 830, 832-33 (7th
Cir. 2010); United States v. Stevens, 500 F.3d 625,
628 n. 3 (7th Cir. 2007) (Rule 41(g) motion “will not
support a claim against the Government for restitution or
recovery of the proceeds of a forfeiture proceeding”).
is not entitled to relief under Rule 41(g). The property he
seeks to have returned was lawfully seized and forfeited in
his criminal case as substitute property under 21 U.S.C.
§ 853(p) and was sold. Rule 41(g) provides no relief for
recovery of the proceeds of a forfeiture proceeding.
must find an alternative civil claim for damages from the
United States, and the Court should allow him to try in an
amended complaint. The Eight Circuit Court of Appeals has
when a district court conducting a Rule [41(g)] proceeding
learns that the government no longer possesses property that
is the subject of the motion to return, the court should
grant the movant (particularly a movant proceeding pro
se. . .) an opportunity to assert an alternative claim
for money damages.
United States v. Hall, supra, 269 F.3d 940, 943 (8th
Cir. 2001), quoted in Norwood, 602 F.3d at 836-37.
The Norwood decision suggests several possibilities
for alternative civil causes of action, although it also
discusses the weaknesses of those potential claims.
Norwood, 602 F.3d at 833-36 (discussing the Federal
Tort Claims Act, 28 U.S.C. § 1346(b)(1); the Little
Tucker Act, 28 U.S.C. § 1491(a)(2); and Bivens v.
Six Unknown Names Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 397 (1971)).
foregoing reasons, the Court:
• DISMISSES Kramer's claim under Rule 41(g) (Doc. 1)
with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) for
failure to state a claim, but without prejudice to filing an
amended complaint ...