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United States v. Ruelas-Lugo

United States District Court, D. Nebraska

November 5, 2018



          Cheryl R. Zwart United States Magistrate Judge

         Pending before the court is Defendant's claim for money damages, (Filing No. 50), and the United States' motion to dismiss. (Filing No. 71). Defendant claims that when he was arrested, his gold braided necklace was taken from him during booking at the jail, it was later sold at auction without his consent, and he is entitled to recover money damages from the United States for this loss. The United States moves to dismiss, arguing “Defendant has been provided with monetary compensation by the Lincoln Police Department in an amount equivalent to the amount of money received by the Lincoln Police Department from the sale of Defendant's necklace at auction.” (Filing No. 71).

         Judge Gerrard referred Defendant's motion to the undersigned magistrate judge for findings and a recommendation. An evidentiary hearing was held on September 20, 2018. Defendant participated by telephone with the assistance of the court's interpreter. His court-appointed counsel was present in the courtroom. In addition to Defendant, the court received testimony from Pamela Fittje, manager of the property unit of the Lincoln Police Department. Exhibits 1 through 19 were received into evidence without objection, and at Plaintiff's unopposed request, the court took judicial notice of all filings in Defendant's criminal case. At the close of the hearing, the court requested post-hearing briefing. All such briefing has been filed. The case is now fully submitted.

         For the reasons explained below, I recommend that Defendant's motion for compensation be denied.


         “On September 11th of 2014, the defendant made two approximately two-ounce deliveries of what was represented to be methamphetamine to an undercover police officer.” (Filing No. 27, at CM/ECF pp. 21-22). He was arrested on September 14, 2014 and was booked into the Lancaster County Jail at 3:39 a.m. on September 15, 2014. (Filing No. 55, at CM/ECF p. 3).

         At the time of his arrest, Defendant was wearing a gold necklace. During booking at the jail, the necklace was removed from Defendant's person, and a Lincoln police officer delivered it to the property unit for the City of Lincoln, Nebraska (“City”). The necklace was not held as evidence of any crime.

         A federal indictment was filed against Defendant on September 16, 2014, with a federal arrest warrant issued that same day. The federal warrant was executed on September 17, 2014. (Filing No. 7). Defendant appeared at his initial appearance in federal court on September 19, 2014. (Filing No. 8). He was then federally detained pending trial on the federal charges. (Filing No. 11).

         On September 22, 2014, the City began the process of returning the personal property it received from Defendant during booking, including the gold necklace at issue. The City has a federal database to search for defendants serving a sentence in a federal prison, but since Defendant was still awaiting trial on the federal case, his name and custodial address did not appear in that database. Therefore, the City sent a letter to Defendant at his last known address regarding his right to claim his property. This letter was returned undeliverable on October 15, 2014. (Filing No. 55, at CM/ECF p. 4).

         As of the summer of 2015, Defendant's gold necklace remained unclaimed, so the City posted it for sale by online auction. The necklace was sold in July of 2015 for $1, 120.00. Of that amount, after sale costs were paid, the City received $569.34. (Filing No. 55, at CM/ECF pp. 5; 73-3; 73-4). The $569.34 was deposited in the City's treasury.

         In the summer of 2016, Defendant demanded return of his gold necklace. Counsel for the United States sent emails to the City to locate the necklace, but the necklace had been sold.

         On September 12, 2018, the City paid the net amount it received for the necklace, $569.34, to Defendant. (Filing No. 73-2). Defendant believes additional compensation is owed. Defendant received the necklace in 2011 as a gift. He claims the necklace confiscated at booking was worth $5, 000 based on the price of similar necklaces he saw in a jewelry store in late 2012, prices he saw in catalogs, and taking the weight of the necklace (54 grams) times $100 per gram, the price of gold in 2012 and 2013. Defendant presented no evidence of the price of gold in September of 2014, when the necklace was placed in the City's property unit, or during the summer of 2015, when the necklace was sold.


         Under Judge Gerrard's prior opinion, (Filing No. 60), the sole issue before the undersigned magistrate judge is whether Defendant is entitled to recovery from the United States under the Takings Clause. The Fifth Amendment prohibits the taking of ā€œprivate property . . . for public use, without just compensation.ā€ U.S. Const. amend. V, cl. 4. A party asserting a claim for compensation under the Takings Clause bears the burden of proving he held a ...

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