Free Motion for Return of Property/PreTrial - District Court of Arizona - Arizona

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PETER B. KELLER Attorney at Law 115 W est W ashington Street Tucson, Arizona 85701 Telephone: (520) 622-3909 Fax: (520) 628-8010 e-mail: [email protected] Az. State Bar No. 003948 Attorney for Defendant

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 at a hearing in this matter, if any. 22 23 24 25 26 27 28 s/ Peter Keller Peter Keller Attorney for Defendant RESPECTFULLY SUBMITTED March 15, 2006. It is expected that excludable delay under Title 18, United States Code, Section 3161(h)(1)(F) will occur as a result of this motion or an order based thereon. Defendant James Smith, through counsel and pursuant to Fed. R. Crim. P. 41(g), moves this court to order the return of the currency seized from him at the time of his arrest in this matter. This motion is based on the following Memorandum, the court file, and the information to be presented 1) JAMES WAYNE SMITH, Defendant. vs. UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) CR 04-608 PHX DGC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

MOTION FOR RETURN OF PROPERTY

Case 2:04-cr-00608-DGC

Document 25

Filed 03/15/2006

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MEMORANDUM Backgound: James Smith was arrested by the Arizona Highway Patrol on May 18, 2004. At the time of the arrest police seized from Mr. Smith $299,030 in U.S. Currency. Mr. Smith was immediately transferred to the custody of the United States Drug Enforcement Administration and appeared in this Court the following day. On June 10, 2004, Mr. Smith was indicted under this case number. The Indictment included not only criminal charges, but also a forfeiture allegation. That Indictment was dismissed on September 28, 2004. Law & Argument: Fed. R. Crim. P. 41(g) provides as follows: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings .

Despite the dismissal of the criminal prosecution this court still has jurisdiction to grant the remedy sought. A Rule 41 Motion filed after completion of a criminal case is treated as a civil complaint for equitable action.1 With no criminal prosecution pending, it is the Government's burden to show that it has a legitimate reason to retain the property.2 The person from whom the property is seized is presumed to have the right to its return.3

United States v. Ritchie, 342 F.3d 903, 906 (9th Cir. 2003). United States v. Martinson, 809 F. 2d 1364, 1369 (9th Cir. 1987). United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987); see also, United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1057 (9th Cir. 1994) Document 25 -2Filed 03/15/2006 Page 2 of 3

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Case 2:04-cr-00608-DGC

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As such, Mr. Smith has the right to bring this action and this court has the jurisdiction to consider the matter. Given that it has abandoned this prosecution and the related criminal forfeiture, the Government cannot demonstrate any need to further retain this property. It should

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also be noted that the Government cannot retain this property in anticipation of a potential civil forfeiture action; the time limits for initiating a civil action have passed and the seized property must be returned.4 CONCLUSION For the foregoing reasons, counsel requests that this court order the return of the property seized on May 18, 2004. RESPECTFULLY SUBMITTED March 15, 2006. s/ Peter Keller Peter Keller Attorney for Defendant

I hereby certify that on March 3, 2006 I electronically transmitted this document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic filing to the following CM/ECF registrants: · David Pimsner, Assistant United States Attorney

I also provided a paper copy and NEF to: · The Honorable David G. Campbell, United States District Judge

See 18 U.S.C. §983(a)(1)(A) and (F) and 18 U.S.C. §983(a)(3)(B). Document 25 -3Filed 03/15/2006 Page 3 of 3

Case 2:04-cr-00608-DGC