Opinion
Crim. 1:17-cr-00280-PKC
12-16-2022
IGNATIUS BENJAMIN UDEZE EZENWA PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT.
MOTION TO RETURN SEIZED PROPERTY PURSUANT TO FED R CRIM P 41 (G)
NOW COMES IGNATIUS BENJAMIN UDEZE EZENWA, petitioner is pro se, in necessity, pursuant to Haines v Kerner, 404 U.S. 519-520 ... (1972), humbly and respectfully moves this Honorable Court, for the return of his seized property, pursuant to Federal Rule of Criminal Procedure 41(g), to wit: [2] two passports.
LEGAL ANALYSIS
Fed R Crim P 41(g), provides that "a person aggrieved" by the federal seizure and subsequent depravation of property, may move for [its] return. Federal Rule of Criminal Procedure.
Petitioner in this action, is entitled to the return of his seized property.
This filing is in light of Fed R Crim P 41(g).
GENERAL PRINCIPLES
As a general rule, the United States properly may retain ... seized property, during the pendency of ... [a]n investigation of a defendant through completion of the criminal case against him. See United States v Bowler, 372 F.3d 365, 367 (6th Cir 2004)(citing "once the Government's need for (seized property) has ended," the District Court has the jurisdiction to determine whether it should be returned to it's owner). Also see United States v Hess 982 F.2d 181, 186 (6th Cir 1992) (indicating "seized property, other than contraband should be returned to it's rightful owner, once the criminal proceeding have been terminated).
Petitioner argues, that the party bearing the burden of ... proof on a Rule 41(g) motion, depends on when the motion is filed.
Before [a]n indictment is filed, or when a criminal investigation is pending, the Petitioner bears the burden of proving in fact[s], that they are entitled to lawful possession of the property. See United States v Gladding, 775 F.3d 1149, 1152 (9th Cir 2014).
Petitioner argues, that the burden of proof changes, "when the property in question is no longer needed for evidentiary ... purpose[s]," because "the Government has abandoned it's investigation." Id. (quoting United States v Martinson, 809 F.2d 1364, 1369 (9th Cir 1987); United States v Jones, 42 F.Supp.2d 618, 620 (WD NC 1999) ("a Rule 41(g) motion is properly granted, if the Government is no longer needs the seized property as evidence.").
Then the Petitioner is presumed to have a right to the property's return, and the Government has the burden of demonstrating that it has a legitimate reason to retain the property, which in this case at bar, it does not. See Gladding, 775 F.3d at 1152 ... (quoting Martinson, 809 F.2d at 1369).
Petitioner argues, the simplest way for the Government too carry out this burden, it to prove the property is contraband, which in this instance it is not. They should have evidence too support such a claim.
When there is a factual dispute over what constitutes contraband for the purposes of a motion under Fed R Grim P 41(g), the court acts a fact finder. See Mohmmad v United States, 95 F.Supp.2d 236, 239 (D N.J. 2000)("the court must determine whether [a]ny of the items are subject to forfeiture or are contraband).
Lastly, courts faced with a Rule 41(g) motion, have adopted a [4] four factor test (herein called the "Richey Factors") ... seeking to balance: [1] whether the Government displayed a callous disregard for the constitutional rights of the claimant; [2] whether the claimant has [a]n individual interest in and need for the property he wants returned' [3] whether the claimant would be irreparably injured by denying the return of the property; and [4] whether the claimant has [a]n adequate remedy at law for the redress of his grievance. See Ramsden, 2Fd at 325 (citing Richey v Smith, 515 F.2d 1239, 1243 (5th Cir 1975).
Petitioner argues that the statute of limitation for filing a Rule 41(g) motion for return of seized property, is [6] six ... years from the date the Defendant was on reasonable notice about the forfeiture. See United States v Albinson, 356 F.3d 278 (3rd Cir 2004).
Petitioner is within the statute of limitation in this filing, and requests the return of his seized property.
CONCLUSION
Pursuant to Federal Rules of Criminal Procedure, 41(g), the Petitioner in this action, IGNATIUS BENJAMIN UDEZE EZENWA, moves for this Honorable Court to Grant this motion, and return his seized property, that is currently in the possession of the United States Government, to wit: [2] two passports.