UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
May 14, 2013
UNITED STATES OF AMERICA, PLAINTIFF,
REZA TABATABAI, ET AL., DEFENDANT.
The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER RE MOTION FOR RETURN OF PROPERTY
I. PROCEDURAL BACKGROUND
On January 14, 2011, defendant Reza Tabatabai filed an ex parte motion for return of seized property. In his motion, defendant seeks the return of property seized during a July 2005 search of his home, such that he can prepare "adequate and applicable post trial remedies."*fn1
Defendant asserts that the seized items consist of "(a) critical exculpatory information, evidence, and documents which are essential for the petitioner pertaining to his ongoing legal proceeding . . . ,"*fn2 "(b) personal property of the family which was not relevant to this instant case . . . ,"*fn3 and "some official documents and personal items, [including] petitioner's driving license."*fn4
Defendant seeks return of the property under Rule 41(g) of the Federal Rules of Criminal Procedure.
The government opposes defendant's motion. It asserts that because the case against many of defendant's co-defendants and co-conspirators is ongoing, and because "the government's need for the property as evidence against the remaining defendants continues," defendant is not entitled to return of the property at issue.*fn5 United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993) (quoting United States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir. 1991)). In addition, the government asserts that "to the extent that defendant requires the property to prepare post-trial motions, defendant has already received copies of the property seized, as the government has already received copies of the [disputed] property."*fn6
II. FACTUAL BACKGROUND
On July 19, 2005, agents with the Federal Bureau of Investigations (FBI) executed a search warrant at defendant's Beverly Hills home.*fn7 During the search, agents seized approximately ten boxes of evidence consisting primarily of bank records and financial documents.*fn8 Hard copies of the records were produced to each of defendant's three sets of defense counsel.*fn9 In addition, the government recopied and reproduced the records to defendant prior to trial, in the form of compact disks containing approximately 31,000 pages of discovery.*fn10
On July 25, 2006, following a twelve day bench trial at which defendant represented himself pro se, the court found defendant guilty on all counts of a 55-count second superceding indictment that charged defendant and co-conspirators Edmond Masjedi, Touraj Benshian, Masoud Rahmani, and Masoud Sabet with conspiracy, interstate transportation of fraudulently obtained property, mail fraud, wire fraud, conspiracy to commit money laundering, and causing an act to be done.*fn11
Defendant's convictions stemmed from his participation in a large-scale fraud scheme in which he and co-defendants Masjedi, Benshian, Rahmani, and Sabet assumed control of several businesses and their lines of credit; expanded the lines of credit; obtained large volumes of merchandise; and, ultimately, failed to pay the manufacturers of the merchandise for the goods obtained.*fn12
On August 11, 2008, defendant was sentenced to eighty-seven months in custody, to be followed by a three year period of supervised release. He was also ordered to pay a special assessment of $5,500 and restitution in the amount of $2,235,801.22.*fn13
Thus far, defendant and co-defendants Touraj Benshian and Edmond Masjedi are the only named defendants who have been convicted.*fn14 Two additional co-defendants -- Masoud Sabet and Masoud Rahmani appear to be fugitives. Proceedings against them have not been dismissed.
A. Rule 41(g) Legal Standard Governing Return of Property
Rule 41(g) of the Federal Rules of Criminal Procedure*fn15
provides that: "A person aggrieved by an unlawful search and
seizure of property or by the deprivation of property may move for the
property's return. . . . If [the court] grants the motion, [it] must
return the property to the movant, but may impose reasonable
conditions to protect access to the property and its use in later
"Generally, a Rule 41[(g)] motion is properly denied 'if the defendant
is not entitled to lawful possession of the seized property, the
property is contraband or subject to forfeiture or the government's
need for the property as evidence continues.'" United States v. Mills,
991 F.2d 609, 612 (9th Cir. 1993) (quoting United States v. Van
Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir. 1991)). "A criminal
defendant is presumed to have the right to the return of his property
once it is no longer needed as evidence" and the government has no
other "legitimate reason to retain [it]." Mills, 991 F.2d at 612
(quoting Van Cauwenberghe, 934 F.2d at 1061; United States
v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987)).
Thus, if the government no longer needs the property for evidentiary purposes, it has the burden of showing "that it has [another] legitimate reason to retain the property." Mills, 991 F.2d at 612 (quoting Van Cauwenberghe, 934 F.2d at 1061; Martinson, 809 F.2d at 1369). See also United States v. Harrell, 530 F.3d 1051, 1057 (9th Cir. 2008) ("[W]hen the property in question is no longer needed for evidentiary purposes, either because trial is complete, the defendant has pleaded guilty, or . . . the government has abandoned its investigation, the burden of proof changes. The person from whom the property is seized is presumed to have a right to its return, and the government has the burden of demonstrating that it has a legitimate reason to retain the property . . . .," quoting Martinson, 809 F.2d at 1369 (citations omitted)); Mills, 991 F.2d at 612 ("The government may meet this burden by demonstrating a 'cognizable claim of ownership or right to possession adverse to that of the defendant'"), quoting United States v. Palmer, 565 F.2d 1063, 1065 (9th Cir. 1977).
If, however, "a motion for return of property is made while a criminal investigation is pending, the burden is on the movant to show that he is entitled to the property." Gotti, 244 F.Supp.2d at 124 (citing United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999); Van Cauwenberghe, 934 F.2d at 1061; Martinson, 809 F.2d at 1369) ("If a motion for return of property is made while a criminal investigation is pending, the burden is on the movant to show that he is entitled to the property" (citations and internal quotation marks omitted)). Thus, if the government asserts, as it does here, that the disputed property is needed for evidentiary purposes in an ongoing prosecution of a co-defendant, the movant has the burden of showing, by a preponderance of the evidence, that the government does not, in fact, actually need the property for that purpose. See Gotti, 244 F.Supp.2d at 124.
B. Personal Property
1. 31,000 Pages Previously Produced on the Four Compact Disks
In his motion for a new trial, defendant conceded that, in May 2006, he received from the government four compact disks containing approximately 31,000 pages of documents that it had seized from defendant's home on July 19, 2005.*fn16 The government asserts that "since at least May of 2006, when the government recopied and reproduced nearly 31,000 pages of discovery in [a] format that permitted defendant to view it at the Metropolitan Detention Center, defendant has been able to freely view and study all of the evidence in this case, including the property at issue."*fn17 Although the government presumably retains the original copies of the documents reproduced on the four disks, it asserts it is entitled to retain the originals for evidentiary purposes because its case against certain co-defendants remains ongoing.*fn18 Because defendant proffers no evidence contradicting the government's assertion, he has not met his burden of showing that the government does not, in fact, need the disputed documents. Further, even if the defendant had met his burden, the court notes that the government has already produced copies of the documents to defendant that he can use for post-conviction proceedings;*fn19 this eliminates any possibility of prejudice to defendant due to the fact that the government retains the originals.*fn20 Accordingly, defendant's motion, as to the approximately 31,000 pages of evidence on the four compact disks, is denied. See United States v. Geekie, No. 08-CR-20064, 2009 WL 2413883, *1-3 (C.D. Ill. Aug. 4, 2009) ("As to the Rule 41(g) request for return of property, the government notes that Defendant alleges he is aggrieved by the deprivation of his property. The government argues that Defendant's allegations are conclusory and do not explain or specify why the inspection and copying of the seized items is insufficient and the return of the items is necessary for his defense. The government argues that since the prosecution is ongoing, it is reasonable for the government to retain the seized items and that Defendant's motion should be denied. . . . Here, the government has offered Defendant and his counsel access to seized items for inspection and to help prepare a defense. Further, Defendant has not articulated or specified why he needs the property back and why the ability to inspect, copy, or photograph the seized items would be insufficient. Therefore, Defendant's Motion for Return of Property (# 18) is DENIED") See also United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977) ("The general rule is that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated" (emphasis added)); United States v. Rodriguez-Aguirre,264 F.3d 1195, 1212 (10th Cir. 2001) (same); Cooper v. City of Greenwood, Miss., 904 F.2d 302, 304 (5th Cir. 1990) (same); United States v. Farrell, 606 F.2d 1341, 1343 (D.C. Cir. 1979) (same).
2. Items Not Previously Produced on the Four Compact Disks
As noted, if the government has a legitimate need for defendant's property in a continuing case, the defendant must show, by a preponderance of the evidence, that the property is not needed for evidentiary purposes, or for any other legitimate purpose, in the ongoing prosecution of a co-defendant. In his reply, defendant asserts that the government never returned a large number of the items taken from his home on July 19, 2005.*fn21 Specifically, defendant asserts that the government failed to produce items including cellular telephones, computers, memory sticks, a rolodex, credit cards, credit card statements, a passport, a business organizer, real estate records, photographs, and escrow documents.*fn22 Defendant has not demonstrated that these items are unrelated to the criminal proceedings, or explained why they are not needed as evidence. Consequently, he has failed to meet his burden of proof. See United States v. Podlog, No. 96-1575, 1997 WL 138472 (Table), *1-2 (2d Cir. Mar. 21, 1997) (Unpub. Disp.) ("On January 4, 1996, Podlog moved pursuant to Fed. R. Crim. P. 41[(g)] for the return of property seized during the search of his apartment. Among the items sought by Podlog were the credit cards Podlog had alleged were stolen by the government. The district court denied Podlog's motion, finding that the non-credit cards items were needed by the government in the upcoming trial of one of Podlog's co-conspirators, and that there was no new evidence with respect to the credit card claim. We . . . hold that the district court properly denied Podlog's motion with respect to the non-credit card property. The district court found that the property was needed by the government in another criminal prosecution. It is well established that this constitutes a legitimate justification to retain possession of an individual's property"); United States v. Williams, 181 F.Supp.2d 267, 300-01 (S.D.N.Y. 2001) ("Xavier Williams now requests that we order the Government to return these items to him pursuant to Federal Rule of Criminal Procedure 41[(g)]. . . . The Government represents that 'the money and jewelry . . . is evidence that will be offered at trial' to prove that the defendants were engaged in a lucrative narcotics trafficking business, and that the religious beads will be 'offered to corroborate other evidence at trial.' . . . Since the Government does intend to use this evidence at trial, we decline to order it to use photographs or stipulations in place of the authentic materials it seized . . . . The motion is, therefore, denied").
The court notes, however, that certain items on the inventory submitted appear to have a tenuous connection to further litigation against the co-defendants. As examples, Control #13 includes a copy of the passport of defendant's fiance, Control #16 is defendant's passport, and Control #33 is an unidentified photo. Certain other descriptions of the property seized make it impossible for the court to ascertain whether the items have evidentiary value (e.g., Control #20 -- "foreign language documents" and Control #35 -- "documents in foreign language"). The court therefore directs the government to make a detailed response, control number by control number, as to whether the property is evidence in the ongoing case against the remaining two co-defendants. The government is further directed to state whether it intends to pursue the case against the remaining co-defendants and address how their apparent fugitive status impacts resolution of defendant's Rule 41(g) motion.
For the reasons stated, the court defers ruling on defendant's motion for return of property until the government provides the further information described above. The government is directed to file a pleading setting forth in the information requested by the court no later than June 10, 2013.