Defendants Motive for Return of Property
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
In re Search
Warrant
Cause No. H-05-985M
MOTION TO RETURN PROPERTY
Comes now the petitioner, Daniel Yeh, by and through his
attorney of record,
Robert S. Bennett, and moves this Court, pursuant to Federal Rule of
Criminal Procedure
41(g), to order the return of personal property seized pursuant to
a search warrant signed
by this Court on December 21, 2005. In support of this motion
Daniel Yeh would show
the court as follows:
I.
This Court signed a Search Warrant on December 21, 2005
in the above numbered cause. That Search Warrant, in Attachment
A, detailed a list of items to be seized in numbered paragraphs 1
through 8. In summary, the list of items included evidence
regarding only The Flagship Hotel and the government’s investigation
into possible fraudulently billing by only the Flagship Hotel to
FEMA following Hurricanes Katrina and Rita.
Government agents executed the Search Warrant at the
home of Daniel Yeh on December 21, 2005. Pursuant to the Search
Warrant, agents of the government seized the property listed on the
Return, under the heading “Inventory of Person or Property Taken
Pursuant to the Warrant.” The items listed include such things as
computers, numerous business documents, bank deposit ticket books, a
bankruptcy attorney fee document, and numerous tax documents. It is
Daniel Yeh’s contention that the majority of items seized from his
home are not relevant to the government’s investigation of possible
FEMA fraudulently billing by the Flagship Hotel, and therefore were
seized and continue to be retained by the government in violation of
the 4th Amendment’s proscription against unlawful
searches and seizures.
II.
Given that there are no criminal proceedings currently
pending against Petitioner Daniel Yeh, the petitioner’s motion
should be construed as a civil action in equity. See Mora v.
United States, 955 F.2d 156, 158 (2nd Cir. 1992)
(noting “where no criminal proceedings against the movant are
pending or have transpired, a motion for return of property is
treated as a civil equitable proceeding even if styled as being
pursuant to Fed. R. Crim.P. 41(g)); Mendez v. United States,
2005 WL 2175903 (E.D.N.Y. 2005).
Federal Rules of Criminal Procedure 41(g)
provides that, on a Motion to Return Property, any person aggrieved
by an unlawful search and seizure of property or by deprivation of
property may move for the property’s return. The court must receive
evidence on any factual issue necessary to decide the motion.
The Advisory Committee notes to the 1989 amendment of the Rule state
that, “[a]s amended, Rule 41(e) [now 41(g)], provides that an
aggrieved person may seek return of property that has been
unlawfully seized, and a person whose property has been unlawfully
seized may seek return of property when aggrieved by the
Government’s continued possession of it.” Fed.R.Crim.P.41 Advisory
Committee’s notes (1989).
To prevail on a 41(g) motion, a criminal defendant must demonstrate
that (1) he is entitled to lawful possession of the seized property;
(2) the property is not contraband; and (3) either the seizure was
illegal or the government’s need for the property as evidence has
ended. United States v. Cauwenberghe, 827 F.2d 424, 433 (9th
Cir. 1987).
No standard is set forth in Rule 41(g) itself to govern the
determination of whether property should be returned to a person
aggrieved by either an unlawful seizure or by deprivation of the
property. It is the petitioner’s contention that because the Fourth
Amendment protects people from unreasonable seizures as well as
unreasonable searches, then reasonableness, under all the
circumstances, must be the test when a person seeks the return of
property seized by the government.
The initial issue focuses on whether the moving party under 41(g)
can show a sufficient property interest in the item(s) to demand
their return. Sovereign News Co. v. United States,
690 F.2d 569, 577 (6th Cir. 1982). This burden is met by
showing items were seized from petitioner’s residence. Id.
Seizure of property from someone is prima facie evidence of that
person’s entitlement. United States v. Estep, 760 F.2d
1060, 1064 (10th Cir. 1985). The court must balance the
legitimate needs of the United States against the property rights of
the moving party. United States v. Francis, 646 F.2d 251,
263 (6th Cir. 1981), cert. denied 454 U.S. 1082 (1981).
When the government has a “continuing interest” in the property, the
property does not have to be returned. Id.
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