United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
2011, a jury convicted defendant Don Steele of numerous drug,
forgery and counterfeiting charges as well as possessing a
firearm in furtherance of a drug trafficking crime.
Ultimately, the court sentenced Mr. Steele to a total term of
300 months imprisonment. This sentence included two
concurrent mandatory minimum terms of 20 years which the
court imposed after finding that Mr. Steele had a qualifying
prior felony drug conviction for purposes of imposing an
enhanced sentence under 21 U.S.C. §
841(b). The sentence also included a mandatory
consecutive term of 60 months on the firearm charge. The
Tenth Circuit affirmed Mr. Steele's conviction and the
enhancement of his sentence. United States v. Dyke,
718 F.3d 1282 (10th Cir. 2013). The court later denied Mr.
Steele's 28 U.S.C. § 2255 motion and the Circuit
denied Mr. Steele a certificate of appealability.
matter is now before the court on several pro se motions
filed by Mr. Steele: a Motion to Show Cause Under Rule 41(g)
for Return of Property (doc. 454); a “Petition for Writ
of Audita Querela under 28 U.S.C. § 1651 and All Writs
Act” (doc. 459); a “Request for Preliminary
Injunction and/or Restraining Order under Rule
65(b)(1)” (doc. 462); and a motion for discovery (doc.
Rule 41(g) motion, Mr. Steele asserts two distinct arguments.
One argument is that he is entitled to new forfeiture
proceedings because his property was forfeited without actual
notice to Mr. Steele and without an opportunity for Mr.
Steele to contest the forfeiture, because the government
failed to prove the property was obtained from unlawful means
and because the government failed to consider whether Mr.
Steele's wife was entitled to lawful possession of the
property. The second argument raised in Mr. Steele's
motion is that his 6th Amendment right was violated during
the time that he was incarcerated at CCA Leavenworth
Detention Center. Mr. Steele alleges that his in-person
meetings and telephone calls with his attorney were recorded
by CCA and that those recordings were shared with the
government. By way of background, in May 2016, an Indictment
was returned charging Lorenzo Black and others (the
“Black case”) with conspiracy to
distribute controlled substances inside the Leavenworth
Detention Center, operated at the time by Corrections
Corporation of America (“CCA”). On August 5,
2016, the Federal Public Defender (“FPD”) filed a
Rule 41(g) motion for Return of Information based on
information and belief that the government was in possession
of video recordings of the attorney-client meeting rooms at
CCA, which the FPD alleged intruded into privileged,
confidential communications of attorneys and clients housed
at CCA. The Rule 41(g) motion was later amended to include
audio telephone recordings. The Black defendants
joined the motion and defendants across this District filed
similar motions in their respective cases. Mr. Steele's
motion, then, stems from the Sixth Amendment allegations
asserted in the Black case. His motion for discovery
seeks all video and audio recordings of communications
between himself and his attorney while he was incarcerated at
CCA; log books of all phone calls between Mr. Steele and his
attorney; other material relating to the allegations in the
Black case; a copy of the search warrant and
affidavit concerning the property seized and forfeited; and a
copy of all property forfeited.
portions of Mr. Steele's Rule 41(g) and discovery motions
concerning the forfeiture proceedings are denied. The
superseding indictment in this case contained a forfeiture
allegation concerning the firearms and the judgment entered
by the court included the forfeiture of the firearms to the
government. A criminal forfeiture is part of the
defendant's sentence and must be challenged on direct
appeal or not at all. See United States v. Grigsby,
579 Fed.Appx. 680, 687 (10th Cir. 2014) (citing Young v.
United States, 489 F.3d 313, 315 (7th Cir. 2007)). Thus,
Mr. Steele's interest in the firearms was resolved
through the jury's verdict, the preliminary order of
forfeiture and the judgment of conviction. See
Young, 489 F.3d at 315. His motion, then, is simply a
belated challenge to a criminal forfeiture that could have
been challenged on direct appeal and this court cannot
address those challenges at this juncture. Id.;
see United States v. McNee, 2014 WL 4278845, at *2
(D. Utah Aug. 29, 2014) (denying Rule 41(g) motion
challenging criminal forfeiture; motion was a challenge to
the forfeiture order itself and should have been raised on
direct appeal); United States v. Rodriguez, 2013 WL
594467, at *2 (N.D. Okla. 2013) (denying Rule 41(g) motion
where criminal forfeiture order was included in sentence
imposed against defendant such that only remedy to challenge
the order was through direct appeal).
portions of Mr. Steele's Rule 41(g) and discovery motions
concerning his Sixth Amendment allegations are retained under
advisement pending a ruling by Judge Robinson in the
Black case. Mr. Steele alleges in conclusory fashion
that the government obtained video and audio recordings of
communications between Mr. Steele and his lawyer while Mr.
Steele was incarcerated by CCA. The government asserts that
no video recording was ever obtained and that, while it
obtained and produced numerous audio recordings of Mr. Steele
and third-parties, there is no evidence that audio recordings
of Mr. Stelle and his lawyer exist. The government also
asserts that Mr. Steele waived the privilege in any event
because he clearly had knowledge that his calls were subject
to monitoring. Because some of these issues are inextricably
intertwined with and stem from the Black case, the court will
wait for Judge Robinson to issue her order in that case so
that it may benefit from her in-depth knowledge of the
underlying facts surrounding these issues before resolving
Mr. Steele's motions. In retaining those issues under
advisement, the court expresses no opinion on the merits of
any arguments asserted by the parties.
petition for writ of audita querela, Mr. Steele continues his
efforts to challenge his sentence and the forfeiture order
based on changes in case law since Mr. Steele's
sentencing. Even assuming that the “ancient common law
writ of audita querela” remains available as a form of
relief, see United States v. Spring, 614 Fed.Appx.
386 (10th Cir. 2015) (calling that assumption a
“generous” one), Mr. Steele is clearly not
entitled to it. It has long been settled that a writ of
audita querela is “not available to a petitioner when
other remedies exist.” See Id. (citing
United States v. Torres, 282 F.3d 1241, 1245 (10th
Cir. 2002)). Other remedies clearly exist for Mr. Steele to
challenge his sentence and he has in fact pursued those
remedies under 28 U.S.C. § 2255. The fact that Mr.
Steele's efforts were not successful, or that § 2255
significantly restricts successive motions, does not render
those avenues inadequate or ineffective. See id.
Because he has not shown that other avenues of relief are
inadequate or ineffective, Mr. Steele has not established
that he is entitled to the writ he seeks. See id.
The motion is denied. See also Prost v. Anderson,
636 F.3d 578, 589 (10th Cir. 2011) (although a petitioner may
have benefitted from a cite to a Supreme Court decision
announced after his § 2255 motion, this is not reason
enough to find the original § 2255 motion
“inadequate or ineffective”).
motion for preliminary injunction and/or temporary
restraining order, Mr. Steele asks the court to “allow
him to receive any and all Legal Documents” needed to
prepare for “any pending litigation” involving
this case and to order the Bureau of Prisons to open all
legal or certified mail in Mr. Steele's presence. Mr.
Steele has not identified any actual controversy with the BOP
concerning his mail and in the absence of a showing at this
juncture that Mr. Steele is entitled to any discovery in this
case, any order regarding the BOP's handling of Mr.
Steele's mail would be purely advisory. The motion is
IS THEREFORE ORDERED BY THE COURT THAT Mr.
Steele's Motion to Show Cause Under Rule 41(g) for Return
of Property (doc. 454) is denied in part and retained
under advisement in part; his “Petition for
Writ of Audita Querela under 28 U.S.C. § 1651 and All
Writs Act” (doc. 459) is denied; his
motion for preliminary injunction and/or restraining order
under Rule 65(b)(1) (doc. 462) is denied;
and his motion for discovery (doc. 464) is denied in
part and retained under advisement in part.
IS SO ORDERED.
 To trigger the prior-conviction
sentencing enhancement, the government filed, prior to trial,
an information giving notice of its intent to rely upon the
prior conviction, as required by 21 U.S.C. §
 In January 2019, Mr. Steele filed a
similar motion concerning his Sixth Amendment allegations.
The court denied the motion without prejudice to refiling and
appointed the Federal Public Defendant to represent Mr.
Steele in connection with that claim. The court directed the
Federal Public Defender to file a motion on Mr. Steele's
behalf or other appropriate pleading no later than February
8, 2019. ...