Free Response in Opposition - District Court of Colorado - Colorado

Case 1:04-cr-00153-LTB

Document 444

Filed 03/17/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00153-LTB-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. GERALD P. SMALL, III, et al. Defendants.

GOVERNMENT'S RESPONSE TO AMERIFUNDING'S MOTION FOR RETURN OF PROPERTY

The United States (the government), by and through Matthew T. Kirsch, Assistant United States Attorney for the District of Colorado, hereby responds to Amerifunding, Inc./Amerimax Realty's (Amerifunding) Motion for Return of Property F.R.C.R.P. [sic] 41(g) and Request for Hearing [Doc. # 425] as follows: 1. Amerifunding's motion requests the return of various files in the custody of both federal law enforcement agencies and counsel representing various private parties involved in civil litigation based on similar facts as this criminal case. 2. Amerifunding's motion is made pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, which provides in relevant part: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. . . . If it grants the motion, the court must return the property to the movant, but may

Case 1:04-cr-00153-LTB

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impose reasonable conditions to protect access to the property and its use in later proceedings. The Advisory Committee Notes to the 1989 Amendments to Rule 41 indicate that the general test for returning property is reasonableness under all of the circumstances. "If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable." Id. The United States is entitled to retain property seized pursuant to a search warrant until the conclusion of a criminal case. See, e.g., United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1212-13 (10th Cir. 2001); In re Search of 2847 East Higgins Rd., 390 F.3d 964, 968 (7th Cir. 2004); United States v. Wilson, 540 F.2d 1100, 1101 (D.C. Cir. 1976); see also In re Search Warrant for K-Sports Imports, Inc., 163 F.R.D. 594, 598 (C.D. Cal. 1995) (holding that government was entitled to retain computer records seized pursuant to a search warrant until the conclusion of a civil forfeiture proceeding). 3. In the instant case, defendant Gerald Small filed a Notice of Appeal [Doc. # 439] on March 13, 2006. His conviction is therefore not final, and this case has not reached its conclusion. See United States v. Bellamy, 411 F.3d 1182, 1186 (10th Cir. 2005) (noting that a conviction is not final if an appeal remains available). Moreover, until defendant Small's appellate brief is filed, there are a number of unknown factors which require the government to retain the evidence, including the basis of his appeal and whether the evidence in question might be necessary if 2

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the case were remanded as a result of the appeal. 4. The government has offered to provide access to counsel for Amerifunding to the documents in the government's custody and to make arrangements to allow copying of documents as requested. If, during this process, counsel for Amerifunding locates original documents for which he has a need, the government will attempt to make arrangements to surrender such original documents without comprising the government's ability to pursue its criminal case against defendant Small. The government contends that the Court's involvement in this process would only become necessary if the parties, after having identified such original documents, are unable to agree upon "reasonable conditions to protect access to the property and its use in later proceedings." Fed. R. Crim. P. 41(g). 5. As to any property not in the federal government's custody, the government cannot return such property, and the defendant's Rule 41(g) motion should be denied. United States v. Solis, 108 F.3d 722, 723 (7th Cir. 1997); United States v. White, 718 F.2d 260, 261 (8th Cir. 1983). 6. There appears to be no reason for the Court to hold a hearing on this matter as requested by Amerifunding. THEREFORE, the government respectfully requests that the Court deny the Motion for Return of Property without prejudice as it pertains to property in the federal government's custody and deny the motion with prejudice as it pertains to any other

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property. Respectfully submitted this 17th day of March, 2006, WILLIAM J. LEONE United States Attorney

s/ Matthew T. Kirsch MATTHEW T. KIRSCH Assistant U.S. Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone (303) 454-0100 Facsimile (303) 454-0402 email: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of March, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO MOTION FOR RETURN OF PROPERTY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael Arvin, Esq. [email protected] Robert J. Driscoll, Esq. [email protected] Robert McAllister, Esq. [email protected]

s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17 th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 E-mail:[email protected]

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