Following trial, this particular government interest ceases to exist. In re Grand Jury Subpoena Duces Tecum Issued to Roe Roe, Inc., 49 F. Supp.2d 451, 453 (Md. 1999). Of course, after the evidentiary interest has dissipated, the government may assert other superseding interests, including the regulatory interest in retaining contraband.
Pursuant to Rule 41(g), courts must determine if the government's retention of seized property is "reasonable," and must balance the government's need to retain the property against the individual's right to use the property. In re Grand Jury Subpoena Duces Tecum Issued to: Roe & Roe, Inc., 49 F. Supp. 2d 451, 452-53 (D. Md. 1999). Generally, seized property other than contraband "should be returned to the rightful owner after the criminal proceedings have terminated."
The District Court for the District of Maryland has held that when a motion is made for the return of property before an indictment is filed, but a criminal investigation is pending, such as is the case here, the movant bears the burden of proving that the seizure of the property was illegal. See In re Grand Jury Subpoena Duces Tecum Issued to: Roe Roe, Inc., 49 F. Supp. 2d 451, 453 (D. Md. 1999). At the September 5, 2008, hearing, the parties agreed that it is the petitioners who bear this burden.
But, if the United States' legitimate interests can be satisfied even if the property is returned, continued retention of the property would become unreasonable."). See also In re Grand Jury Subpoena Duces Tecum (Roe & Roe, Inc.), 49 F. Supp. 2d 451, 452-55 (D. Md. 1999) (finding that the government had no "continuing evidentiary need" for the food products seized, and ordering their return). The government's position is that the funds should be turned over to the Trustee.
When a motion for return of property is made before an indictment is filed, but while a criminal investigation is pending, it is the movant who bears the burden of proving that he is entitled to the property. In re Grand Jury Subpoena Duces Tecum Issued to: Roe Roe, Inc., 49 F.Supp.2d 451 (D.Md. 1999) (citing United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987) (citations omitted)). The court, therefore, will consider the movant's argument that it has been aggrieved by the deprivation of property under the reasonableness standard set forth by the Third Circuit in 608 Taylor Avenue.
Rather, the government has the burden of demonstrating a compelling governmental interest in the continued sealing and the absence of a less restrictive means, such as redaction. The Court finds the government has not met its burden here. Dr. Thompson is correct that the plain language of Fed.R.Crim.P. 41(e) allows him to file a motion challenging the search and seizure as illegal, as without probable cause, prior to return of any indictment. See In re Grand Jury Subpoena Duces Tecum Issued to Roe Roe, Inc., 49 F. Supp. 2d 451, 453 (D. Md. 1999). Moreover, the legislative history of Rule 41 supports a presumption in Rule 41 that targets will generally learn the basis for the government's invasive actions after the search.