Opinion
CRIMINAL 12-mj-157
12-02-2021
UNITED STATES OF AMERICA v. KENNETH JOHN KONIAS.
MEMORANDUM ORDER ON APPEAL
Marilyn J. Horan United States District Court Judge
This matter is before the Court on Kenneth J. Konias, Sr.'s and Renee Konias's (Petitioners) Appeal of the Magistrate Judge's Denial of their Motion for Reconsideration on the Petitioner's Motion for Return of Property Pursuant to Federal Rule of Criminal Procedure 41(g). ECF No. 19. The Magistrate Judge has set forth the relevant factual background regarding the requested property. In short, a criminal complaint was filed against Defendant Kenneth John Konias in the United States District Court for the Western District of Pennsylvania on March 2, 2012. On May 18, 2012, the federal charges against the Defendant were dismissed due to the federal government having deferred prosecution to the Commonwealth of Pennsylvania. ECF No. 9. As part of the process of deferring prosecution, agents of the federal government turned over all property seized in connection with the case to the Pittsburgh Bureau of Police. ECF No. 16-2 (Affidavit of Martin C. Grilli and attached exhibit list listing items given to the Pittsburgh Bureau of Police).
In denying the Petitioners' Motion for Reconsideration, the Magistrate Judge properly relied on the government's sworn Affidavit in finding that the government “no longer possess the property at issue.” United States v. Chambers, 192 F.3d 374, 378 (3d Cir. 1999). The Affidavit states that the items originally retained by the Federal Bureau of Investigation were transferred to the Pittsburgh Bureau of Police. United States v. Albinson, 356 F.3d 278, 283 (3d Cir. 2004) (affidavit showing chain of custody sufficient to support finding of what happened to property). The Affidavit resolved any alleged disputed issue of fact regarding the whereabouts of the property. Albinson, 356 F.3d at 283 (citing Chambers, 192 F.3d at 378). Thus, the Magistrate Judge properly denied Petitioners' Motion based on the substantiated sworn affidavit showing that the government does not possess the requested property because the property was transferred to the Pittsburgh Bureau of Police. The Court finds that the Magistrate Judge did not err in denying Petitioners' Motion for Reconsideration of their Motion for Return of Property. Accordingly, Petitioners' Appeal is denied.
IT IS ORDERED