Opinion
Civ. No. 04-1124 WJ/RHS, Crim. No. 02-1604 WJ.
April 28, 2005
ORDER GRANTING MOTION TO VACATE AND ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on Respondent's Motion to Vacate Order for Martinez Report as Moot ("Motion to Vacate"), filed on April 25, 2005 [Doc. 10] and Second 28 U.S.C. § 1746 Declaration of Robert Godshall [Doc. 11]. Having reviewed the Respondent's submissions, the Court finds that the Motion to Vacate is well taken and will be granted, and will further order the parties to show cause why the Motion for Return of Seized Property ("Motion for Return") should not be denied and this proceeding dismissed.
An initial review of the Government's motion, Mr. Godshall's declaration and accompanying exhibits indicate that the items described by Mr. Regalado-Frias in his Motion for Return are not in the possession of the Immigration and Customs Enforcement (ICE) or the United States Government. Because the Government apparently does not possesses the property that Mr. Regalado-Frias seeks, it cannot return the property. See United States v. Solis, 108 F.3d 722, 722-23 (7th Cir 1997) (denying Rule 41(e) motion where there was no evidence of federal possession) United States v. White, 718 F.2d 260, 261 (8th Cir. 1983) (denying Rule 41(e) motion where United States did not have possession of property), cited in Clymore v. United States, 164 F.3d 569, 571 (10th Cir. 1999) (reversed on other grounds). Accordingly, the Court will direct the Movant/Defendant to show cause why his Motion for Return should not be denied and this civil proceeding dismissed. The Movant/Defendant is hereby notified that failure to respond to this order as directed may result in dismissal with prejudice of this proceeding.
WHEREFORE,
IT IS HEREBY ORDERED that the Motion to Vacate Order forMartinez Report as Moot [Doc. 10] is GRANTED. The parties need not respond to the Order for Martinez Report filed on April 4, 2005.
IT IS FURTHER ORDERED that the Movant/Defendant shall have until Monday, May 23, 2005 to show cause why the Motion for Return of Seized Property [Doc. 1] should not be denied and this civil proceeding dismissed with prejudice.