Opinion
Nos. 04 Civ. 6716 (JFK), S4 99 Cr. 73 (JFK).
March 17, 2005
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Edelmiro Santos's pro se motion for return of property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure.
Petitioner frames his motion as one pursuant to Rule 41(e). The 2002 amendments to Rule 41 reworded and renumbered the substance of Rule 41(e) as Rule 41(g). These amendments did not enact any substantive changes, merely stylistic changes.Sanchez-Butriago v. United States, No. 00 Civ. 8820 (JFK), 2003 WL 21649431 at *2 n. 1 (S.D.N.Y. July 14, 2003).
BACKGROUND
On September 24, 1999, Santos pleaded guilty to a two-count information charging him with (1) conspiracy to distribute and possess with intent to distribute five kilograms and more of cocaine and one kilogram and more of heroin, in violation of 21 U.S.C. § 846 and (2) using and carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The Court sentenced Santos to consecutive terms of 18 months on Count One and 60 months on Count Two, followed by three years of supervised release.Santos claims that his passport, issued by the Dominican Republic, his United States alien card and his driver's license were seized at the time of his April 26, 1999 arrest. He moves for the return of these items and for such other relief as the Court deems proper. The Government does not oppose the motion. The Government advises the Court, however, that none of Santos's property has been found in the files of the United States Attorney's Office where such property is ordinarily maintained. The Government has requested that the Drug Enforcement Administration review its files for the missing items. The Government represents that it will return any found property to Santos.
DISCUSSION
Rule 41(g) of the Federal Rules of Criminal Procedure provides as follows:
A person aggrieved 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.
Fed.R.Crim.P. 41(g). Once a criminal case is concluded, the Court construes a Rule 41(g) motion "as initiating a civil action in equity." Lavin v. United States, 299 F.3d 123, 127 (2d Cir. 2002). The Court may grant the petitioner equitable relief, but money damages are no longer available. Last year, the Second Circuit joined its sister circuits in holding that "Rule 41(g), which simply provides for the return of seized property, does not waive the sovereign immunity of the United States with respect to actions for money damages relating to such property." Adeleke v. United States, 355 F.3d 144, 151 (2d Cir. 2004).
At the conclusion of a criminal proceeding, the evidentiary burden for a Rule 41(g) motion shifts to the Government because there is a presumption that "the person from whom the property was allegedly taken has a right to its return." Mendez v. United States, No. S2 94 Cr. 466(JFK), 99 Civ. 3496 (JFK), 2003 WL 21673616 at *2 (S.D.N.Y. July 16, 2003); see United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999). The Government may rebut the presumption "by proving it has a legitimate reason for retaining the property or that it never had the property."Mendez, 2003 WL 21673616 at *2.
The Government does not contest that Santos is entitled to the return of his property. As the search obviously is still ongoing, the Government is directed to notify the Court no later than May 1, 2005 as to whether the property has been located. If any of the property at issue is found, the Government is directed to return it to Santos. If the property cannot be found, the Government must provide documentary evidence that the property no longer is in its possession. See Chambers, 192 F.3d at 377-78.
SO ORDERED.