BARRY J.PORTMAN

Federal Public Defender

LARRY KUPERS

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA  94102

Telephone:  (415) 436-7700

 

Counsel for Defendant XXXXX

 

 

 

                                         IN THE UNITED STATES DISTRICT COURT

 

                                    FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

 

 

UNITED STATES OF AMERICA,               )   CR No. 00-0000 ABC

)

)    NOTICE OF MOTION, MOTION FOR

)    RETURN OF PROPERTY AND            

Plaintiff,                       )    MEMORANDUM OF POINTS &

)    AUTHORITIES IN SUPPORT OF

v.                                             )    MOTION FOR RETURN OF PROPERTY

)  

XXXXX XXXXX,                                           )    DATE:       May 12, 1999

)    TIME:        2:30 p.m.        

Defendant.                  )  

                                                            )  

 

 

TO:     UNITED STATES OF AMERICA, PLAINTIFF; AND ROBERT MUELLER, UNITED STATES ATTORNEY; AND GEOFFREY ANDERSON, ASSISTANT UNITED STATES ATTORNEY.

 

PLEASE TAKE NOTICE that on May 12, 1999, at 2:30 p.m. in the courtroom of the Honorable Charles R. Breyer or as soon thereafter as the matter may be heard, counsel for defendant XXXXX XXXXX will move this Court for entry of an order for return of defendant=s property pursuant to Fed. R. Crim. P. 41(e).

This motion is based on the instant notice and motion, the memorandum of points and authorities filed herewith, all other applicable constitutional, statutory, and case authority, and such evidence and argument as may be presented at the hearing of this motion.

 

                                                                INTRODUCTION

Defendant XXXXX XXXXX hereby moves pursuant to Fed. R. Crim. P. 41(e) for return of all property seized by United States Customs authorities on the day Ms. XXXXX was arrested, January 13, 1999.  The property at issue consists of $55,700 in money orders and $4,399 in cash taken from Ms. XXXXX after she was stopped and detained by Customs inspectors and agents.

The U.S. Attorney=s Office has not indicated that whether the seized property is evidence that must be retained for use in this case.   However, Ms. XXXXX anticipates that the government will make such an argument in a bid to retain the property.  If so, Ms. XXXXX submits that copies of the money orders can be made for evidentiary purposes.  Ms. XXXXX will stipulate to the authenticity of such copies, thereby obviating any government interest in the property based on evidentiary use.

                                                                     ARGUMENT

THERE IS NO VALID REASON FOR RETENTION BY THE GOVERNMENT OF THE SEIZED ASSETS

 

 

Fed. R. Crim. P. 41(e) provides in pertinent part:

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 ws seized for the return of the property on the ground that such person is entitled to lawful possession of the property.  The court shall receive evidence on any issue of fact necessary to the decision of the motion.  If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings.

 

In this case, there is no legitimate basis for the government's retention of the currency and money orders seized from Ms. XXXXX.

In United States v. Ortega, 450 F. Supp. 211 (S.D.N.Y. 1978), defendant moved for return of $13,200 seized from his briefcase at the time of his arrest, alleging that there was no valid reason for its retention by the government.  The defendant was convicted of drug trafficking.  Id. at 212.  Agents seized from his briefcase $13,200 at the time of his arrest.  The defendant admitted


that $10,000 of the money was connected to his drug trafficking activities but averred that the remaining $3,200 was obtained legally.  Id.   

With respect to the threshhold issue of jurisdiction, the Ortega court found that it had jurisdiction over the motion for return of property because the issue was "ancillary" to the criminal proceeding.  Id. (citing United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976)).

Thus, this Court has the authority to order the government to return Mr. King=s property.  Rule 41(e) is clear on its face:  the government cannot keep the property if Ms. XXXXX is entitled to its return.  If the government argues the seized items will be relevant and admissible evidence for the government=s case, then Rule 41(e) calls for "reasonable conditions [to be] imposed to protect access and use of the property in future proceedings."  Here Ms. XXXXX will stipulate to the government=s use at trial of copies of the seized money orders and currency.  Thus, there is no reason that the property should not be returned forthwith to Ms. XXXXX.

                                                                   CONCLUSION

For the foregoing reasons, defendant XXXXX XXXXX respectfully requests that this Court enter an order directing the government to return her property.

 

DATED: 

Respectfully submitted,

 

BARRY J. PORTMAN

Federal Public Defender

 

 

 

LARRY KUPERS

Assistant Federal Public Defender