Perry v. United States

28 Fed. Cl. 82, 1993 U.S. Claims LEXIS 307, 1993 WL 98809
CourtUnited States Court of Federal Claims
DecidedApril 6, 1993
DocketNo. 92-668C
StatusPublished
Cited by36 cases

This text of 28 Fed. Cl. 82 (Perry v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. United States, 28 Fed. Cl. 82, 1993 U.S. Claims LEXIS 307, 1993 WL 98809 (uscfc 1993).

Opinion

ORDER

NETTESHEIM, Judge.

This case is before the court on defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant to RCFG 12(b)(1). Argument is deemed unnecessary.

FACTS

The following facts drawn from plaintiff’s amended complaint are undisputed, except where noted. In 1989 Diana Perry (“plaintiff”) was indicted for alleged violations of federal gambling laws. Much of the evidence implicating plaintiff was obtained by the Federal Bureau of Investigation (the “FBI”), in Omaha, Nebraska, through the use of wiretaps that were authorized by a state district court judge. On January 29, 1988, as a result of the information obtained from the wiretaps, the district court judge issued a search warrant authorizing the search of a safety deposit box believed to be owned by plaintiff. On January 30, 1988, the FBI seized approximately $70,000.00 in cash and a solid silver bar, valued at approximately $675.00, from plaintiff’s safety deposit box on the ground that plaintiff violated the Prohibition of Illegal Gambling Business Statute, 18 U.S.C. § 1955 (1988).

In a certified return-receipt letter, signed by plaintiff, on March 10, 1988, the Administrative Services Division of the FBI informed plaintiff, pursuant to 28 C.F.R. § 8.8 (1987), of the January 30, 1988 seizure and intended administrative forfeiture of property. The FBI’s letter advised plaintiff that in order to contest the seizure or impending forfeiture, she was required, by April 25, 1988, to file with the FBI a claim of ownership and to post a bond in the amount of $5,000.00. On April 27, 1988, plaintiff’s attorney, Anthony S. Troia, filed a claim of ownership and posted the required bond on behalf of plaintiff. Subsequently, on April 28, 1988, the FBI returned plaintiff’s submissions to Mr. Troia, informing him that the deadline for such submissions had passed and that procedures to administratively forfeit the property would continue. The FBI’s letter also stated that if plaintiff wished to request the remission or mitigation of the forfeiture, she could, pursuant to 28 C.F.R. §§ 9.4-9.7 (1987), file a petition for remission within 30 days.

On May 11, 1988, plaintiff filed a petition for remission or mitigation of the forfeiture. On July 13, 1988, Mr. Troia informed the FBI agents responsible for handling the petition that plaintiff would not consent to be interviewed regarding the facts supporting her petition for remission. Plaintiff’s refusal of any interview, coupled with her failure to offer any evidence supporting her petition, led the FBI to determine that plaintiff had not satisfied her burden of establishing that remission or mitigation was appropriate. Subsequently, the FBI denied plaintiff’s petition.

Following this denial, plaintiff requested on September 29, 1988, pursuant to 28 C.F.R. § 9.4(i), that the FBI reconsider its denial of her petition for remission or mitigation. On November 25, 1988, the FBI denied plaintiff’s request for reconsideration since she presented no evidence indicating she was without knowledge or reason to believe that the property seized was used to violate federal gambling laws.

[84]*84On April 15, 1992, the United States Court of Appeals for the Eighth Circuit affirmed the decision of the United States District Court for the District of Nebraska to suppress the state-authorized wiretap recordings, which served as the basis for the search warrant covering the safety deposit box, as well as for plaintiff’s indictment. United States v. Feiste, 961 F.2d 1349 (8th Cir.1992). In Feiste the Government had appealed the district court’s order granting defendant’s motion to suppress the state-authorized wire tap recordings. The court suppressed the recordings because the tapes were not timely sealed pursuant to 18 U.S.C. § 2518(8)(a) (1988), and because government investigators failed to obtain proper court-ordered authorization to use the tapes in a federal prosecution. Id.

As a result of the Eighth Circuit’s decision, the Government dismissed plaintiff’s indictment on May 26, 1992. Contrary to plaintiff’s allegation, defendant asserts that the court has not issued an order demanding the return of property seized in connection with this investigation.

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Cite This Page — Counsel Stack

Bluebook (online)
28 Fed. Cl. 82, 1993 U.S. Claims LEXIS 307, 1993 WL 98809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-united-states-uscfc-1993.