Summary
In U.S. v. Garcia, 2009 WL 996322, (D. Ariz. April 14, 2009), the district court applied Martinson where the government no longer needed to retain defendant's property as evidence after it was legally seized incident to arrest.
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CR 07-581-PHX-SMM.
April 13, 2009
MEMORANDUM OF DECISION AND ORDER
Pending before the Court is Defendant's unresolved motion for return of seized property (Dkt. 24). On February 1, 2008, Defendant moved for the return of seized property (Id.). The Government did not file any opposition, and the Court granted Defendant's motion (Dkt. 25, Order dated February 21, 2008). Defendant has never received the property. After intermittent briefing and hearings (Dkts. 26-35), the Court held an evidentiary hearing on March 10, 2009 (Dkt. 36). The parties were unable to resolve the matter, and the Court now issues the following ruling.
BACKGROUND
The following facts are not in dispute. Pursuant to a warrant issued for violations of supervised release, the United States Marshals Service ("U.S. Marshal") arrested Defendant on March 8, 2007. At the time of Defendant's arrest, the U.S. Marshal was conducting a joint task force operation with local law enforcement agencies in order to arrest fugitives. The local law enforcement agencies viewed Defendant as a person of interest for two investigations: (1) a drug case and (2) a case involving the shooting of a Glendale, Arizona police officer. Although the Government arrested Defendant under a federal warrant, the local officers did not have a warrant for the uncharged local investigations.
During the arrest, the Government seized certain items from Defendant: a firearm, two gold chains, two cellular telephones, and $4,470.00 cash (Dkt. 24, 2:13-14). The U.S. Marshal seized and inventoried the items incident to Defendant's arrest, and not by way of a seizure warrant or forfeiture proceeding.
On the night of Defendant's arrest, local police officers requested that certain items, the cellular telephones and $4,470.00, be turned over to them as evidence in their investigations. The U.S. Marshal turned over the cellular telephones and $4,470.00 cash to the local police officers on March 13, 2007 and March 20, 2007, as indicated in Attachment 1 of Docket 31.
In this Court, Defendant admitted to a violation of his supervised release and pleaded guilty to a charge of felon in possession of a firearm. The Court sentenced Defendant to 40 months imprisonment, consecutive to his 24-month sentence on a previous supervised release violation. Pursuant to the written plea agreement, the Court ordered the forfeiture of the firearm (Dkt. 23, Order dated January 23, 2008). Therefore, only the two cellular telephones, two gold chains, and $4,470.00 cash are at issue here.
At the March 10, 2009 hearing, Deputy U.S. Marshal Eric Brown testified that evidence, such as cellular telephones and cash, are often turned over to local law enforcement agencies. Brown also testified that, except for a verbal request, there were no written or other documentary requests seeking a release of the property from the U.S. Marshal to the local police agencies, nor was he aware of any written memoranda of understanding among task force agencies establishing a protocol for the transfer of seized property. Apparently, informal transfers of this type are customary.
In declining to comply with the Court's order to return Defendant's property, the Government contends that the property is not in its possession and the local agencies that currently possess the property are beyond this Court's jurisdiction.
DISCUSSION
Both sides to this dispute rely heavily on U.S. v. Martinson, 809 F.2d 1364 (9th Cir. 1987). In Martinson, the Ninth Circuit addressed the return of seized property on jurisdictional grounds and on the merits. See id. The Court will analyze this dispute under the Ninth Circuit's framework by addressing jurisdiction first and the merits second.I. Jurisdiction
When there are no pending criminal proceedings against a defendant, a district court has jurisdiction over motions to return seized property. Id. at 1366-67; United States v. Palmer, 565 F.2d 1063, 1064 (9th Cir. 1977) (asserting jurisdiction over a post-conviction motion to return property). The court treats such motions as civil equitable proceedings, and "the court must take into account all equitable considerations." Id. at 1367 (citations omitted). Moreover, the court has the power to award damages in these proceedings. See id. at 1368.
"Once a court of equity has asserted jurisdiction over a motion to return property, it maintains its jurisdiction as long as necessary to provide an adequate remedy to the movant." Id. InMartinson, the Ninth Circuit determined that the government should not be able to destroy jurisdiction by its own conduct.Id. Among its sources, the Ninth Circuit cited three persuasive cases in which the court addressed whether it had jurisdiction. In each case, the court found it irrelevant to jurisdiction that the government did not possess the money or had given it to the state. Id. at 1368-69 (citing United States v. Francis, 646 F.2d 251, 262-63 (6th Cir. 1981); United States v. Wright, 610 F.2d 930, 938 (D.C. Cir. 1979); United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir. 1976)). Furthermore in Martinson, the Ninth Circuit referred to the government's "continued possession" of the property, even though it was clear that the government had destroyed the property during the appeal process. Id. at 1369.
In a footnote in Martinson, though, the Ninth Circuit seemingly suggested two possible exceptions to the court exercising jurisdiction over a motion to return property. The relevant exception noted that Martinson was "not a case in which . . . the government has turned the property over to state officials for use as evidence in a state proceeding." Id. at 1369 n. 3 (citations omitted).
Here, the parties argue that this dispute turns on the footnote in Martinson. While the Martinson court did not expressly contemplate a situation such as the one before the Court, the Ninth Circuit apparently indicated that an exception to jurisdiction may occur when "the government has turned the property over to state officials for use as evidence in a state proceeding." Id. (emphasis added). Implicit in this statement is that the property will actually be used as evidence in a state proceeding.
The Government has presented two chain of custody forms for the seized property (Dkt. 31, Attach. 1). The forms indicate that Deputy U.S. Marshal Brown relinquished the $4,470.00 cash to Phoenix Police Department ("Phoenix P.D.") Detective Nick DePonzio on March 13, 2007 and the two cellular phones to Phoenix P.D. Detective Jerry Laird on March 20, 2007 (Id.). The purpose listed on the chain of custody forms is "Evidence" (Id.). Despite this, the Government has produced no evidence that it turned the property over for use as evidence in a state proceeding. The Government has only produced considerable speculation about why it turned over the property. The Government has only made statements in Court that the property is the proceeds of some illicit operation, but these statements are not admissible evidence. The Government has produced no affidavits or testimony that the state will be using this property as evidence, nor have any criminal charges been filed against Defendant. Even if the Government produced evidence to support its statements, the proffered evidence would have cast doubt on the Government's claim and would not have overcome the Court's equitable considerations. At the recent evidentiary hearing, the Government stated that Defendant is no longer a person of interest in the shooting of the Glendale, Arizona police officer. With regards to the drug investigation, the state charged Defendant with using a wire communication in connection with a drug-related transaction. The alleged wire communication took place on or about February 7, 2008, though, which is about 11 months after Defendant's March 8, 2007 arrest under the federal warrant. The Government does not dispute that there is no pending state proceeding against Defendant for which the property seized on March 8, 2007 is evidence. The Government simply has not shown that its reason for transferring the property was for use as evidence in a state proceeding. Therefore, the exception in Martinson does not apply here. As such, the Court exerts jurisdiction in this equitable proceeding.
II. Merits
As the Court has jurisdiction in this proceeding, it must address the merits of Defendant's claim. For motions to return property, the Ninth Circuit has clearly set forth the burden of proof:
[W[hen the property in question is no longer needed for evidentiary purposes, either because trial is complete, the defendant has pleaded guilty, or, as here, 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 . . . 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.Martinson, 809 F.2d at 1369 (citations omitted). The government may also show "a legitimate reason to retain the property" by demonstrating "a cognizable claim of ownership or right to possession adverse to that of the defendant." United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993) (quoting Palmer, 565 F.2d at 1065) (brackets omitted).
Unlike its earlier counterpart, Rule 41(g) of the Federal Rules of Criminal Procedure no longer states that a person must show he is "entitled to lawful possession of the property." Fed.R.Crim.P. 41(g). Regardless, the amendments to the rules do not appear to affect the analysis under Martinson. Indeed, the 1989 Amendments noted that "[c]ourts have recognized that once the government no longer has a need to use evidence, it should be returned." Id. (citing Wilson, 540 F.2d 1100).
Here, the Government lawfully seized the property incident to arrest. Regardless of the seizure's lawfulness, the Government no longer needs the property in question for evidentiary purposes because Defendant pleaded guilty. See Martinson, 809 F.2d at 1369. Therefore, Defendant no longer bears the burden of demonstrating that he is entitled to lawful possession of the property. See id. He is presumed to have a right to its return.See id. As such, the Government must justify its "continued possession" of the property by demonstrating a legitimate reason to retain the property, such as it is contraband, subject to forfeiture, or the Government has a right to possession adverse to Defendant. See id.; Mills, 991 F.2d at 612.
The Government has not claimed ownership or argued it has a right to possession adverse to Defendant. Furthermore, the Government has not demonstrated that the property is contraband or subject to forfeiture in this, or any other, proceeding. After Defendant pleaded guilty and the Court sentenced him, Defendant forfeited the firearm to the Government under the terms of his plea agreement and this Court's Order dated January 23, 2008. With regards to the gold chains, cellular phones, and $4,470 in cash, though, the Government has not shown they are contraband or subject to forfeiture in these proceedings. Furthermore, as noted, the Government has not demonstrated that the state is using the property as evidence in a proceeding. In its briefing, the Government relies on the ambiguous statement that "[c]ounsel for the United States has been informed that the property is the subject of plea negotiations in other matters the defendant stands charged with in state court" (Dkt. 35, 3:8-10). During the March 10, 2009 evidentiary hearing, though, the government produced no affidavits or testimony from the local law enforcement agencies that the property is being used as evidence. The Government's assurances without any evidence presented simply does not meet its burden of proof. See Martinson, 809 F.2d at 1370. Because the Government does not have a legitimate reason to retain the property, the Government must return the property.
Based on the chain of custody forms, the Court finds that the two cellular telephones and $4,470.00 cash are now in the possession of state authorities (Dkt. 31, Attach. 1). Therefore, the Court will order monetary damages as equitable relief. The Court orders the seizing authority, namely the U.S. Marshals Service, to pay $4,470.00 to Defendant. In addition, the Court orders the U.S. Marshals Service to pay $100 for the value of the two cellular telephones. With regards to the two gold chains, on May 16, 2008, the Government notified the Court "that the U.S. Marshal's Office has the gold colored jewelry chain" (Dkt. 31, 1:26-28). In addition, Deputy U.S. Marshal Brown informed defense counsel that they would release the jewelry to him if he scheduled an appointment (Id.). The Court is unaware of the gold jewelry's whereabouts. Therefore, the Court orders the U.S. Marshals Service to return the jewelry, if it has not yet done so.
While the Court does not wish to impede future cooperative ventures between state and federal agencies, the Court gave the Government numerous opportunities to show a legitimate reason for retaining the property. The Government's counsel failed to respond in an appropriate and timely fashion. Furthermore, the Government produced no admissible evidence that the property is being used as evidence in a state proceeding. Reassurances from the Government's counsel is not admissible evidence. Moreover, Deputy U.S. Marshal Brown testified that there were no written or other documentary requests seeking a release of the property from the U.S. Marshals Service to the local police agencies, nor was he aware of any written memoranda of understanding among task force agencies establishing a protocol for the transfer of seized property. If repeated, the manner in which the Government transferred Defendant's property to local law enforcement could conceivably implicate Fifth Amendment considerations, if not Fourth Amendment ones. How the Court's ruling today affects considerations for future cooperative investigations will be left for another day.
CONCLUSION
The U.S. Marshals Service is a mere stakeholder in the seizure. In the spirit of cooperation with a state agency, the U.S. Marshal turned over the money and cellular telephones because Defendant was a person of interest in state investigations. Yet despite the passage of almost a year, no charges have been filed. More important, however, the Government was given ample opportunity to produce evidence to justify the use of the seized property as evidence in state proceedings; it did not. In fact, at the recent evidentiary hearing, the Government's counsel informed the Court that he had anticipated witnesses would appear and offer evidence that the seized property had evidentiary value; they did not. Thus, the Government has failed to demonstrate that the transfer of the property came within theMartinson exception. Furthermore, the Government failed to justify its continued possession of the property. Regretfully, it is the stakeholder who must return the property rather than the current possessor.
Accordingly,
IT IS HEREBY ORDERED that the U.S. Marshals Service shall pay $4,570.00 to Defendant for the value of the cash and cellular phones.
IT IS FURTHER ORDERED that the U.S. Marshals Service shall return the gold jewelry to Defendant, if it has not yet done so.
IT IS FURTHER ORDERED that the U.S. Marshals Service shall comply with these orders by May 15, 2009.