The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DENYING PETITIONER'S MOTION FOR RETURN OF PROPERTY PURSUANT TO FED. R. CRIM. P. 41(g)
On October 21, 2003, petitioner Mathias Pizano was convicted of narcotics distribution, money laundering and bank fraud in a United States District Court for the Southern District of Iowa. On or about May 3, 2004, the Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, entered a Final Order of Forfeiture, forfeiting to the United States government various assets formerly owned by Pizano, including a condominium located on the Pacific Coast Highway in Huntington Beach, California ("the condominium"). Id.
On April 8, 2008, petitioner filed a motion, pursuant to Fed. R. Crim. P. 41(g), for the return of his personal property that was allegedly located inside of the condominium at the time of its forfeiture or, in the alternative, monetary compensation for that property.*fn1 On October 10, 2008, respondent United States of America filed its opposition. On January 9, 2009, petitioner filed his reply. After carefully considering the parties' arguments, the Court finds and concludes as follows.
The government asserts that all of the personal property inside the condominium was removed when the condominium was prepared for sale. Opp'n at 3-4. In this regard, the government asserts that petitioner identified his sister, Jennifer Pizano, and his then girlfriend, Kristine Martens (collectively, "Pizano's representatives"), as the individuals who were to manage his affairs while he was in custody. Id. at 3. The government states that it contacted Pizano's representatives and asked them to remove any property from the condominium that Pizano wished to keep, and thereafter turned over every item that Pizano's representatives requested, including a painting, a king size bed set, a stackable washer and dryer, a small kitchen set, and other personal effects.
Id. The remaining items in the condominium were either donated to Goodwill or discarded. Id. According to the government, no personal property removed from the condominium remains in its possession. Id. (citing Berntson Decl ¶¶ 7-8.; Pounders Decl. ¶¶ 6-7).
Petitioner argues that none of his personal property was returned to him, with the exception of one oil painting. Reply at 3. Petitioner further denies that the government ever contacted his representatives or turned over any property to them. Id. (citing Martens Decl. ¶ 3).
Rule 41(g) motions are treated as proceedings in equity when there are no criminal proceedings pending against the movant. United States v. Martinson, 809 F.2d 164, 1366 (9th Cir. 1987).
To prevail on a Rule 41(g) motion, previously known as a Rule 41(e) motion, for return of seized property, "a criminal defendant 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." United States v. Van Cauwenberghe, 827 F.2d 424, 433 (9th Cir. 1991)).
The government argues that, with the exception of the bed set allegedly claimed by Pizano's representatives and the leather sofa allegedly donated to Goodwill, Pizano has failed to provide sufficient proof that any of the property he seeks to have returned was ever in the condominium. Opp'n at 5. The government contends that it cannot be held responsible for property which it did not seize. Id. at 6 (citing United States v. Marshall, 338 F.3d 990, 994-95 (9th Cir. 2003)).
The government further argues that petitioner's motion must be denied because the government no longer possesses any of the property found in the condominium. Opp'n at 5 (citing Lowrie v. United States, 824 F.2d 827, 829 (10th Cir. 1987) ("[A]n order that the F.B.I. return material which it does not have, nor does it have control over, cannot stand"); United States v. White, 718 F. 2d 260, 261 (8th Cir. 1983) ("[S]ince the government ...