Opinion
Criminal Case No. 07-cr-00275-WYD.
July 6, 2009
ORDER
THIS MATTER came before the Court during a hearing on May 7, 2009 on Defendant Evaristo Orosco's Motion for Return of Property [doc. #953], filed November 7, 2008 and later joined by Defendant Cynthia Orosco; Defendant Beatriz Munoz-Carrillo's Motion for Return of Property [doc. #1017], filed December 16, 2008; and Defendant Ana Orozco's Motion for Return of Property [doc. #1045], filed January 12, 2009. These Motions seek the return of property in connection with Judge Edward W. Nottingham's Order of July 17, 2008, in which he granted Defendants' Motions to Suppress evidence seized on October 17, 2007 from 11538 Nucla Street, 200 Clayton Street, 5910 South Ogden Court, and 4080 West 48th Avenue. Items seized from the first three properties are the subject of the present motions. The government has responded to the present motions, and some Defendants replied.
The government has consistently indicated that it does not oppose the return of personal items identified to be belonging to the Defendants in question, but the government has disputed what items in fact belong to these Defendants. Furthermore, the government has claimed that it does not have to return items that are subject to its forfeiture allegations or seized pursuant to valid seizure warrants. Specifically, Count Five of the Superseding Indictment in this case, filed December 19, 2007, is a forfeiture allegation, brought pursuant to 18 U.S.C. § 982 and 21 U.S.C. § 853. (Superseding Indictment [doc. #249] 78-86.) The list of property in the forfeiture count includes the three real properties in question in the present matter. (Superseding Indictment 79-80.) On November 14, 2008, the government filed a Bill of Particulars for Forfeiture of Property [doc. #957] indicating that it also seeks forfeiture of $38,300 in currency seized from 5910 Ogden, $73,491 in currency seized from 11538 Nucla, $14,334.84 seized from Key Bank in the name of Martha Orozco, and miscellaneous electronic equipment and jewelry seized from Ana Orozco. (The money seized from Key Bank is not presently at issue.) At the May 7, 2009 hearing, I asked government counsel to identify all property, other than that which is listed in the Bill of Particulars, that he thought the government was entitled to retain. The only items he then specifically identified were those seized at 11538 Nucla from the trunk of a Mercedes-Benz CL 600. Government counsel claimed those items were seized pursuant to a seizure warrant that Defendants had not challenged. I note that there are two 2002 Mercedes-Benz CL 600 vehicles listed in the Superseding Indictment's forfeiture count. (Superseding Indictment 82-83.)
The Court had never been provided copies of any seizure warrants or of the inventory list from the search of 5910 Ogden Street. Accordingly, in a Minute Order dated June 12, 2009 [doc. #1252], I ordered the government to submit "any documents the Court still needs in order to rule on the pending Motions for Return of Property," including those documents just referenced. The government responded on June 18, 2009 and took advantage of the opportunity to submit an eight-page brief that, among other things, contains new legal argument and alerts the Court, for the first time, of a pending civil forfeiture action in this Court before Senior Judge John L. Kane. See United States v. $9,578.55 Seized from Wells Fargo Accounts, et al., Civil Action No. 09-cv-00527-JLK-BNB. The items listed in the Verified Complaint for Forfeiture In Rem, filed March 31, 2009, include currency, artwork, electronic equipment, and jewelry seized from 200 Clayton Street. (Complaint [doc. #1] 3-4.) I find that Defendants should be given an opportunity to respond to the new assertions in the government's June 18 filing. Accordingly, I will defer my ruling on the items listed in the Bill of Particulars, the items that are the subject of the civil forfeiture action, and the items contained in the Mercedes-Benz CL 600 at 11538 Nucla, until Defendants have had an opportunity to respond.
However, I will order the government to return to Defendants all other property that is the subject of the present motions, as it has conceded it will do. At the hearing, the government expressed concern as to how to return property seized from locations where more than one Defendant resided. I respond to this concern, as I did at the hearing, by ordering the government to return those items to Defendants, who can resolve any dispute regarding ownership among themselves.
In conclusion, it is hereby
ORDERED that Defendant Evaristo Orosco's Motion for Return of Property [doc. #953], filed November 7, 2008 and later joined by Defendant Cynthia Orosco, is GRANTED in part and DEFERRED in part. It is
FURTHER ORDERED that Defendant Beatriz Munoz-Carrillo's Motion for Return of Property [doc. #1017], filed December 16, 2008, is GRANTED in part and DEFERRED in part. It is
FURTHER ORDERED that Defendant Ana Orozco's Motion for Return of Property [doc. #1045], filed January 12, 2009, is GRANTED in part and DEFERRED in part. It is
FURTHER ORDERED that, not later than Wednesday, July 15, 2009, the government shall return to Defendants all items it seized from 11538 Nucla Street, 200 Clayton Street, and 5910 South Ogden Court on October 17, 2007, with the exception of: 1) those items listed the Bill of Particulars filed November 14, 2008, 2) those items that are the subject of the pending civil forfeiture action before Judge Kane, No. 09-cv-00527-JLK-BNB, and 3) those items seized from the trunk of the Mercedes-Benz CL 600 parked at 11538 Nucla Street. It is
FURTHER ORDERED that Defendants shall respond to the "Government's Response to Court Order of June 12, 2009 (Document Number: 1252)" not later than Friday, July 17, 2009.