Opinion
6:21-CR-06061 EAW
2022-07-11
UNITED STATES of America, v. Robert DYGERT, a/k/a Spade, Defendant.
Brett A. Harvey, Government Attorney, U.S. Attorney's Office, Rochester, NY, for United States of America.
Brett A. Harvey, Government Attorney, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Defendant Robert Dygert ("Defendant") was convicted pursuant to a plea agreement of conspiracy to possess with intent to distribute, and distribute, 40 grams or more of fentanyl, in violation of 21 U.S.C. § 846. (Dkt. 142; 143). On February 2, 2022, the Court sentenced Defendant to 174 months in prison followed by four years of supervised release. (Dkt. 155; Dkt. 156). Defendant filed a Notice of Appeal on February 28, 2022. (Dkt. 158).
On June 6, 2022, Defendant, proceeding pro se , filed a letter seeking the return of his silver and black Samsung Galaxy Note 10 plus smartphone, which was previously seized by law enforcement on February 25, 2020. (Dkt. 160). Defendant states that there is no evidence of criminal activity on the smartphone, the smartphone contains sentimental family photographs, and requests that it be returned to his sister. (Id. ).
The government opposes Defendant's request, arguing that he has not met the standard under Rule 41(g) of the Federal Rules of Criminal Procedure for the return of the smartphone. (Dkt. 162). Specifically, the government argues that the smartphone was lawfully seized pursuant to a search warrant executed at 192 Weaver Street, which was a drug house operated by Defendant and his co-conspirators, and held as evidence for trial. (Id. at 2). The government further argues that Defendant has filed an appeal which remains pending, and if the appeal is successful the government will need the smartphone as evidence at trial. (Id. at 3).
The Court agrees with the government that Defendant has failed to meet the standard under Rule 41(g). That Rule provides as follows:
(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to
protect access to the property and its use in later proceedings.
See Fed. R. Crim. P. 41(g). "To prevail on a Rule 41(g) motion, the movant ‘must demonstrate that (1) he is entitled to lawful possession of the seized property; (2) the property is not contraband; and (3) either the seizure was illegal or the government's need for the property as evidence has ended." Green v. United States , No. 3:16-cv-79 (RNC), 2017 WL 374460, at *1 (D. Conn. Jan. 25, 2017) (quoting Ferreira v. United States , 354 F. Supp. 2d 406, 409 (S.D.N.Y. 2005) ).
Defendant has failed to meet this required showing. As part of his plea agreement, Defendant admitted to conspiring with others to distribute fentanyl, including that he and his co-conspirators operated a drug house located at 192 Weaver Street, located in Rochester, New York, where they stored, manufactured, packaged, and distributed quantities of fentanyl. (Dkt. 142 at 3). Defendant also admitted that on February 25, 2020, law enforcement executed a search warrant at 192 Weaver Street, where Defendant was present inside the residence, and from which law enforcement seized fentanyl packaged for distribution, drug processing and packaging paraphernalia, and a large amount of cash. (Id. at 4). In addition, as referenced above, Defendant has filed an appeal (Dkt. 158), and in his letter request he acknowledges that he is "working on appeal issues" (Dkt. 160 at 2). Defendant's appeal is presently pending before the Second Circuit Court of Appeals. See United States v. Dygert , Docket No. 22-401 (2d Cir.). If Defendant is successful in overturning his conviction, the government will need the smartphone—which was seized from the drug house at 192 Weaver Street—as evidence at trial.
Given that the smartphone was legally seized pursuant to a search warrant and the government may need to utilize the smartphone as evidence at a trial, Defendant has failed to meet the standard for return of his property under Rule 41. Accordingly, his letter request seeking the return of his smartphone (Dkt. 160) is denied, albeit without prejudice to renewal in the event that Defendant's conviction is affirmed and the government's need for the property is extinguished.
SO ORDERED.