Opinion
Case No. 3:08cr79/MCR
02-10-2015
UNITED STATES OF AMERICA, v. MARK DANIEL LEITNER, Defendant.
REPORT AND RECOMMENDATION
This matter is before the court on defendant Mark Leitner's "Petition for Return of Property." (Doc. 1810). Defendant requests the return of property seized from him during a criminal investigation conducted by the Internal Revenue Service in 2006. Defendant indicates the property was seized in Fairport, New York, which is within the territorial jurisdiction of the U.S. District Court for the Western District of New York. Federal Rule of Criminal Procedure 41 provides that "[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." FED. R. CRIM. P. 41(g). Because defendant Leitner's property was seized in the Western District of New York pursuant to a search warrant, he must file his motion for the return of property in the U.S. District Court for the Western District of New York. See United States v. Ebert, 39 F. App'x 889 (4th Cir. 2002) (unpublished) (holding Fed. R. Crim. P. 41(g)'s predecessor, 41(e), requires that a defendant seeking the return of property following the conclusion of criminal proceedings must file motion in the district of seizure, not the district of trial); accord United States v. Smith, 253 F. App'x 242, 243 (3d Cir. 2007) (unpublished).
Accordingly, it is respectfully RECOMMENDED:
That defendant Leitner's "Petition for Return of Property" (doc. 1810) be DENIED WITHOUT PREJUDICE.
At Pensacola, Florida this 10th day of February, 2015.
/s/ _________
CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE
In re Search of 22 Blackwatch Trail, Apt. 8, Fairport, NY 14450, United States District Court for the Western District of New York, Case No. 6:06mj573-JWF.