Opinion
No. 02 C 3220
September 13, 2002
MEMORANDUM OPINION AND ORDER
Saleem Shirazi pled guilty to conspiracy to defraud the United States, in violation of Title 18, United States Code, Section 371. Defendant' offense related to the possession of counterfeit traveler's checks, unauthorized and counterfeit credit cards and stolen credit card account numbers. On March 5, 2002, Shirazi was sentenced to sixty months in prison. Plaintiff Shirazi now seeks the return certain personal property that the Glenview Police Department seized in connection with his arrest and that the government seized during the search of a hotel room where Shirazi had stayed. The government agrees to return some of the property and objects to the return of other items.
FACTUAL BACKGROUND
The Glenview Police Department arrested Shirazi on October 17, 2000 on charges of possession of a controlled substance and unlawful possession of a firearm by a felon. The arresting officers took Shirazi into custody and detained him at the Cook County Jail. They forfeited a Ford Econoline van with license plate number T227287 and $2,200 in cash. The federal government was not involved in the initial arrest.
The Glenveiw Police Department subsequently contacted the U.S. Secret Service and informed them of what appeared to be counterfeit Visa traveler's checks in Shirazi's motel room at the Motel 6 in Glenview, Illinois. Secret Service agents thereafter inspected and took custody of the evidence that appeared to relate to counterfeit traveler's checks and credit card fraud, including two computers, a magnetic card reader, counterfeit traveler's checks and counterfeit credit cards. The government charged Shirazi with offenses relating to the possession of counterfeit traveler's checks, unauthorized and counterfeit credit cards and stolen credit card account numbers. Shirazi pled guilty and was sentenced to 60 months imprisonment.
LEGAL STANDARD
Rule 41(e) provides for the return of property seized by the government "on the ground that such person is entitled to lawful possession of the property." Because Shirazi brought this motion post conviction, it is considered as a civil equitable proceeding. See United States v. Solis, 108 F.3d 722 (7th Cir. 1997). "[T]he test of whether property should be returned is whether the government's retention of it is reasonable. . . ." In re Serach of Office of Tylman, 245 F.3d 978, 980 (7th Cir. 2001). See also Advisory Committee Notes to Federal Rule of Criminal Procedure 41(e).
ANALYSIS
Shirazi specifically identifies the follow items to return: a Ford Econoline van with license plate number T227287, $2,200 in cash, "various papers and documents," his "clothes, shoes, Aiwa boom box, whether [sic] scanner, personal photographs, personal phone directory, book with business information, personal digital assistance by Hewlett Packard, digital phone directory, several sets of keys [and] cellular phone." He generally notes that he also is seeking the return of "many more personal items," but fails to identify them.
I. Property Not in the Government's Possession
Many of the items Shirazi seeks are not, and have never been in the actual or constructive possession of the United States. The evidence shows that the Glenview Police Department seized the Ford Econoline Van and the $2,200 when they arrested Shirazi. They subsequently forfeited these items. In addition, the Glencoe Police Department seized Shirazi's personal items such as his clothes when they arrested them. The government never obtained custody of these items. Finally, the Motel 6 where Shirazi had been staying obtained and subsequently disposed of his personal items, such as his clothes and luggage, that were left in the Motel 6 room. Because the United States never possessed these items, the Court has no jurisdiction over them. See Soils, 108 F.3d at 722-23. Accordingly, Shirazi's motion fails with respect to those items.
II. Property in the Government's Possession
The government does have certain property in its possession that the Secret Service seized from Shirazi's Motel 6 room. The government has set forth this property in detail in the inventory sheets attached to the affidavit of U.S. Secret Service Special Agent Andrise. Such property essentially consists of two computers, a magnetic card reader, a Hewlett Packard palm PC, a computer modem, computer disks, counterfeit traveler's checks, credit cards and false identifications and various papers. Shirazi used the majority of this property, including the computers where he stored files containing stolen credit card numbers, to facilitate his criminal activities. He is not entitled to the return of the instrument of his crime. See Leiva v. United States, 1994 WL 55689 at *2-3 (N.D. IL Feb. 22, 1994).
With respect to the other items that Shirazi did not use to carry out his criminal activities, including the Hewlett Packard palm PC, the computer modem and computer disks, the government has agreed to return this property to Shirazi. Given that Shirazi is serving his prison term, Shirazi should communicate through his attorney where the government should send such items.
CONCLUSION
Shirazi's motion for the return of certain property is granted in part and denied in part. It is denied with respect to the Ford Econoline Van, the $2,200 in cash and all items that Shirazi used in connection with the offenses or to facilitate the offenses. It is granted with respect to the Hewlett Packard palm PC, the computer modem and computer disks seized from his room at the Motel 6.