UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Cr. Case No. xx-149(CKK) :
xxxxxxxxxxxxx :
________________________________:
MOTION FOR RETURN OF PROPERTY
AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES
xxxxxxxxx, through undersigned counsel, respectfully moves this Honorable Court, pursuant to Federal Rule of Criminal Procedure 41(e), for the return of his personal papers, drivers license, portable phone, and $295.00.
As grounds for this motion, Mr. xxxxxx, through counsel states:
1. On February 10, 1998, Mr. xxxxxx was arrested when police stopped him and observed an open container of alchohol in the vehicle he was told to exit.
2. Police officers alleged they had discovered contraband in the vehicle. Police officers immediately seized Mr. xxxxxx's portable telephone, his personal papers and license, and $289.00 in currency found in Mr. xxxxxx's pocket. Police did not give Mr. xxxxxx a receipt for any property seized.
3. Mr. xxxxxx was charged by criminal complaint with the intent to distribute a mixture and substance containing cocaine base in an amount over fifty grams, and as an ex-felon in possession of a firearm, in violation of 21 U.S. Code §§841(a)(1), and 18 U.S. Code 922(g) .
4. On March 17, 1998, the government dismissed all charges against Mr. xxxxxx. See Exhibit A (appended hereto). Mr. xxxxxx was released, but the government failed to release Mr. xxxxxx's property.
5. Since March 24, 1998, Mr. xxxxxx has pursued the return of his personal papers, his driver's license, phone and his money. Phone calls by this office to the U.S. Attorney, MPD Property Division at Shannon Place, and the arresting officer, to assist Mr. xxxxxx, yielded no benefit.
6. After obtaining a proper release, verified and signed by the Assistant U.S. Attorney, on August 26, 1998, and having that release faxed to the Property Clerk at Shannon Place, Metropolitan Police Department at 2235 Shannon Place. S.E., Washington, D.C., Mr. xxxxxx was advised that his property was still awaiting transfer from the Superior Court, and his money could not be released because it was being held for forfeiture under provisions of the District of Columbia Code.
7. At this time, seven months after the dismissal of the charges against Mr. xxxxxx, and still as yet not having received his property, nor any notice that his property is pending forfeiture, Mr. xxxxxx still waits the return of his property.
8. Mr. xxxxxx claims, therefore, that the District of Columbia is illegally holding his
property, consisting of his personal papers and his funds, and that this court has
jurisdiction to order the District of Columbia to return his property immediately.
ARGUMENT
Federal Rule of Criminal Procedure 41(e) provides:
A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property which was unlawfully seized.
In Sovereign News Company v. United States, 690 F.2d 569 (6th Cir. 1982), cert. denied, 464 U.S. 814 (1983), the Sixth Circuit explained:
'The general rule is that seized property, other than contraband, should be returned to the rightful owner after criminal proceedings have terminated.' ... This is true whether or not the original seizure was lawful.
690 F.2d at 577, quoting United States v. Francis, 646 F.2d 251, 262 & n.2 (6th Cir. 1981), cert denied, 454 U.S. 1082 (1981). See also United States v. Wilson, 540 F.2d 1100, 1103-1104 (D.C. Cir. 1976) ("the district court, once its need for the property has terminated, [which] has both the jurisdiction and the duty to return the contested property ... regardless and independently of the validity or invalidity of the underlying search and seizure"). In Mr. xxxxxx's case, the criminal proceedings have terminated and, accordingly, his money should be returned. Even if there were an on-going grand jury investigation, that, alone, would not entitle the government to retain Mr. xxxxxx's money. In re Smith, 888 F.2d 167 (D.C. Cir. 1989).
In United States v. Wright, 610 F.2d 930 (D.C. Cir. 1979), this Circuit held:
The seizure of property from someone is prima facie evidence of that person's entitlement, particularly when the seized property is money -- negotiable instruments difficult to identify and trace. ... [W]hen property is seized from a person, the court must return it to that person when it is no longer needed by the government. The court is obligated to restore the status quo ante. Unless there are serious reasons (presented by the government or adverse claimants) to doubt a person's right to the property seized from him, he need not come forward with additional evidence of ownership.
610 F.2d at 939 (emphasis in original). Since the property which Mr. xxxxxx claims is his was seized from his person, that is prima facie evidence that he is entitled to have that money returned to him. The Ninth Circuit has observed that generally when there is an on-going criminal indictment, but an indictment has not yet been filed, it is the movant in a motion for return of property who "bears the burden of proving both that the seizure was illegal and that he or she is entitled to lawful possession of the property." United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). When there is no longer a criminal case pending The situation is different, however, when, as in Mr. xxxxxx's situation, there is no longer a criminal case pending:
[W]hen the property in question is no longer needed for evidentiary purposes, either because trial is complete, the defendant has pleaded guilty, or ... the government has abandoned its investigation, the burden of proof changes. The person from whom the property is seized is presumed to have a right to its return, and the government has the burden of demonstrating that it has a legitimate reason to retain the property. ... In such a case, the legality of the search and seizure is no longer an issue; even if the seizure was lawful the government must justify its continued possession of the property by demonstrating that it is contraband or subject to forfeiture.
809 F.2d at 1369 (emphasis supplied) (citations omitted).
Thus, in Mr. xxxxxx's case, he is presumptively entitled to the return of his money unless the government can demonstrate to the Court that the money was either contraband or subject to forfeiture,(1) a burden they cannot meet on the facts of this case. Cf. Government of Virgin Islands v. Edwards, 903 F.2d 267, 273-274 (3rd Cir. 1990) (burden is on possessor or property "to prove entitlement;" burden of proof is on government "to show that it had a legitimate reason not to return the property to the person from whom it was seized").
In Edwards the Third Circuit held that "it would be antithetical to the notions of fairness and justice under which we operate to convert the government's right to temporary possession to a right to hold ... property indefinitely." 903 F.2d at 274. In this case is would be "antithetical to notions of fairness and justice" to allow the government to hold Mr. xxxxxx's money to which he is lawfully entitled and which he needs. Accordingly, Mr. xxxxxx's $289 should be returned to him in accordance with the mandate of Federal Rule of Criminal Procedure 41(e).
WHEREFORE, for all the foregoing reasons, and for any other reasons this Court may deem just and proper, and which may appear in supplemental pleadings, which Mr. xxxxxx explicitly reserves the right to file, Clarence xxxxxx, through counsel, respectfully requests that this motion be granted and that his $289 taken by the police on February 10, 1998, be returned to him.
Respectfully submitted,
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
Barry Boss
Assistant Federal Public Defender On Behalf of Clarence xxxxxx
625 Indiana Avenue, N.W. Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF SERVICE
This is to certify that, on this 22nd day of April, 1998, a copy of the foregoing Motion For Return of Property and Incorporated Memorandum of Points and Authorities In Support Thereof has been served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by leaving a copy in the box designated for the Office of the United States Attorney in the Clerk's Office of the United States District Court for the District of Columbia, the Property Clerk, Metropolitan Police Department, 2235 Shannon Place, S.E., Washington, D.C., Corporation Counsel for the District of Columbia, Washington, D.C.
Barry Boss
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Cr. Case No. 98-088-01(JMF)
:
MICHAEL xxxxxx :
________________________________:
O R D E R
This matter having come before the Court on Mr. xxxxxx's Motion For Return of Property and Incorporated Memorandum of Points and Authorities In Support Thereof, and good cause having been shown, it is this day of , 1998 HEREBY ORDERED:
1) That the motion is granted;
2) That the Metropolitan Police department, or any other agency holding Mr. xxxxxx's $295 taken from him at the time of his February 10, 1998, arrest, return that money to him forthwith.
______________________
JOHN M. FACCIOLA
United States Magistrate Judge
Copies To:
Michael xxxxxx
L. Barry Boss
Assistant Federal Defender
Office of the Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
Terry Ryan
General Counsel
Metropolitan Police Department
300 Indiana Avenue, N.W., Room 4125
Washington, D.C. 20001
Property Clerk
Metropolitan Police Department
2235 Shannon Place S.E.
Washington, D.C.
1. See United States v. Sweeney, 688 F.2d 1131, 1147 (7th Cir. 1982) ("before ... forfeiture proceedings ... become applicable it is incumbent upon the government to establish that a nexus exists between the property seized and the violation of the Controlled Substances Act").