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United States v. Dang

United States Court of Appeals, Tenth Circuit

March 3, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ANH NGOC DANG, Defendant-Appellant.

(D.C. No. 2:98-CR-20029-KHV-DJW-1) (D. Kan.)

Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.

ORDER AND JUDGMENT [*]

Jerome A. Holmes Circuit Judge

At his sentencing hearing, as he was being taken into custody, deputy marshals seized a large sum of cash from Anh Ngoc Dang. Upon motion by the government, the district court authorized the Marshal's Office to turn over the money to the clerk of court to be applied toward Mr. Dang's restitution obligation in a prior case.

In this appeal, Mr. Dang argues that the marshals seized his money in violation of the Fourth Amendment and that the money should therefore be returned to him. Because he has failed to show his entitlement to return of the money on that basis, we affirm.

BACKGROUND

In 2000, Mr. Dang pled guilty to one count of wire fraud. He was ordered to pay $78, 517.59 in restitution to the victim, AT&T. Most of the restitution remained unpaid when, in July 2012, Mr. Dang was sentenced to incarceration for a new offense: illegally producing identification documents. See United States v. Dang, 512 F.App'x 837 (10th Cir. 2013) (affirming, on direct appeal, Dang's sentence for the identification-document offense).

At the close of his July 2012 sentencing hearing, the district court directed two deputy United States Marshals present in the courtroom to take Mr. Dang into custody for transportation to the Bureau of Prisons. Consistent with their usual practice, the deputy marshals directed Mr. Dang to remove his belt and personal belongings to give them to his wife or counsel. During this process, Mr. Dang placed $1, 472 in cash on the counsel table.

Mr. Dang's counsel picked up the money to hand it to Mr. Dang's wife, but one of the deputy marshals directed him not to touch it. The deputy marshal then took possession of the cash and asked the government's counsel what to do with it. In turn, counsel asked the sentencing judge what to do with the money. The judge directed that the money remain with the United States Marshal pending a decision concerning its disposition.

The government subsequently filed, in Mr. Dang's 1998 criminal case, its "Motion for Order Authorizing Turnover of Monies Held by the United States Marshal's Office to the United States District Court for Partial Payment of Restitution." The government argued that the money seized at the 2012 sentencing should be applied to Mr. Dang's outstanding restitution obligation in the 1998 case. Mr. Dang opposed the motion, arguing that the deputy marshals had no authority to seize the money, and that its seizure and disposition violated his due process rights. He requested that the money either be returned to his wife or placed in his prison account.

The district court granted the government's motion. It reasoned that under the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. §§ 3663A-3664, the government had a lien on all of Mr. Dang's property and was entitled to collect the restitution he owed using practices and procedures for enforcement of a civil judgment provided for under state or federal law. The district court noted that when the deputy marshals took Mr. Dang into custody, he had an ownership interest in the money, and it was not exempt from execution. Alternatively, the court relied on a provision of the MVRA that authorizes the government to enforce a restitution order "by all other available and reasonable means, " id. § 3664(m)(1)(A)(ii), including writs authorized by the All Writs Act, 28 U.S.C. § 1651. Mr. Dang appealed.

ANALYSIS

Mr. Dang presents a narrow appellate argument. Citing United States v. Creighton, 639 F.3d 1281, 1283-84 (10th Cir. 2011), he contends that the marshals' seizure of his cash was analogous to an unauthorized post-arrest inventory search. He argues that the Marshal's service lacks a policy for such seizures of the kind "sufficiently regulated to satisfy the Fourth Amendment." Id. at 1284. He also argues that the marshals did not have probable cause to seize the money. Aplt. Opening Br. at 5. In essence, Mr. Dang asserts that his money should be returned to him, not because it could not be applied to his restitution obligation, but because the deputy marshals violated the Fourth Amendment when they seized it.

This argument, however, is misplaced. This appeal arises from an order in Mr. Dang's 1998 criminal case granting the government's motion to enforce his restitution obligation by applying cash in its possession. Mr. Dang cites no authority from which we could conclude that the prior alleged Fourth Amendment violation prohibited the district court from entering such an order, or was ...


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