Opinion
No. 06-35082.
Argued and Submitted January 9, 2008.
Filed January 23, 2008.
Eric R. Stahlfeld, Esq., Seattle, WA, Joseph R. Conte, Esq., Washington, DC, for Witness-Appellant.
Steven D. Clymer, Esq., USLA — Office of the U.S. Attorney Criminal Division, Los Angeles, CA, for Appellee.
Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, District Judge, Presiding. D.C. No. CV-01-0300-MJP.
Before: BEEZER, KLEINFELD, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
This is an appeal from the district court's order denying the pre-indictment motion of Albert Kwok Leung Kwan for the return of property under Federal Rule of Criminal Procedure 41(g). "[D]istrict courts have the power to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant. These motions are treated as civil equitable proceedings and, therefore, a district court must exercise `caution and restraint' before assuming jurisdiction." Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993) (citations omitted). Here, the district court's tersely-worded order stated only that "the motion to return the property of Mr. Kwan seized pursuant to the investigation of this matter is DENIED." It is evident, however, and Kwan does not contend otherwise, that Kwan did not make the four-factor showing which Ramsden requires as a predicate to the district court assuming jurisdiction over a pre-indictment Rule 41(g) motion. See id. at 324-25; see also United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 929 (9th Cir. 2006).
The order of the district court is therefore AFFIRMED without prejudice to Kwan renewing his Rule 41(g) motion on a proper showing of the Ramsden factors before the district court.