                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-11-2007

USA v. Wallace
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1323




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"USA v. Wallace" (2007). 2007 Decisions. Paper 1775.
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                                                                            CLD-68
                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 06-1323
                                   ________________

                           UNITED STATES OF AMERICA

                                            v.

                               CLARENCE WALLACE,
                                           Appellant

                              _______________________

                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                           (D.C. Criminal No. 02-cr-00197)
                     District Judge: Honorable R. Barclay Surrick
                           ___________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  November 30, 2006

               Before: RENDELL, SMITH and COWEN, Circuit Judges.

                                (Filed: January 11, 2007)

                                    ______________

                              OPINION OF THE COURT
                                  _____________

PER CURIAM

      Clarence Wallace appeals from the District Court’s order disposing of his post-trial

motion for return of property. Because we determine that the appeal is lacking in

arguable legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).
       Wallace was arrested by agents from the Federal Bureau of Investigation on March

6, 2002. During the arrest, the agents seized Wallace’s Bulova watch and $2,153 in cash.

Wallace was eventually convicted by a jury of conspiracy to commit armed bank robbery,

two counts of armed bank robbery, two counts of brandishing a firearm, and being a felon

in possession of a firearm. In addition to a 960-month prison sentence, Wallace was

ordered to pay $25,968 in restitution to the two victim banks. United States v. Wallace,

135 Fed. Appx. 527, 527 (3d Cir. 2005).

       After he was convicted, Wallace filed a motion, under FED. R. CRIM. P. 41(g)

(formerly Rule 41(e)), to return the property that had been seized during his arrest.

Approximately two years later, the government responded to the motion. The District

Court ordered the government to return the Bulova watch, but allowed it to retain the cash

that it had seized. Wallace appealed.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. A motion for the

return of property under FED. R. CRIM P. 41(g) may be made after the termination of

criminal proceedings, and is treated as a civil proceeding for equitable relief. United

States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999). We review the District Court’s

decision for abuse of discretion. Id.

       Having granted Wallace leave to proceed in forma pauperis on appeal, we must

now determine whether his appeal should be dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B). An appeal may be dismissed under § 1915(e)(2)(B) if it has no arguable

basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

                                             2
       Although property seized by the government as part of a criminal investigation

generally must be returned once criminal proceedings have concluded, a defendant has no

right to the return of his property if the government has a continuing interest in the

property, such as in a forfeiture action or an outstanding lien. United States v. Premises

Known as 608 Taylor Ave., Apartment 302, 584 F.2d 1297, 1302 (3d Cir. 1978); see also

United States v. Albinson, 356 F.3d 278, 280 (3d Cir. 2004); Chambers, 192 F.3d at 376.

The order of restitution in Wallace’s case constitutes a lien in favor of the United States

on all of his property. See 18 U.S.C. § 3613(c);1 Lavin v. United States, 299 F.3d 123,

127 (2d Cir. 2002). Because the money that Wallace wants returned is subject to a lien

under a valid order of restitution, he is not entitled to its return. See United States v.

Mills, 991 F.2d 609, 612 (9th Cir. 1993)(“[A] valid restitution order under the VWPA

gives the government a sufficient cognizable claim to defeat a defendant’s Rule 41(e)

motion for return of property, if that property is needed to satisfy the terms of the

restitution order.”) Rather, the government may use the cash seized from Wallace to



  1
   18 U.S.C. § 3613(c) provides in relevant part:

       [A]n order of restitution made pursuant to section[ ] . . . 3663 . . . is a lien in favor
       of the United States on all property and rights to property of the person fined as if
       the liability of the person fined were a liability for a tax assessed under the Internal
       Revenue Code of 1986. The lien arises on the entry of judgment and continues for
       20 years or until the liability is satisfied, remitted, set aside, or is terminated under
       subsection (b).

(citation omitted).


                                               3
satisfy the restitution order.

       In sum, we readily conclude that the District Court correctly denied Wallace’s

motion for return of the $2,153 that was seized when he was arrested. Because his appeal

lacks merit, we will dismiss it under § 1915(e)(2)(B).




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