United States District Court, E.D. California
ORDER DENYING MOTION FOR RETURN OF PROPERTY (DOC.
NOS. 14 AND 28)
December 17, 2012, defendant Victor Manuel Gonzalez-Lamas
pled guilty to being a deported alien found in the United
States in violation of 8 U.S.C. § 1326(a). (Doc. Nos.
9-11.) On the same day, defendant was sentenced to 30 months
in custody and ordered to pay a $100 penalty assessment.
(Doc. Nos. 10-11.) On April 3, 2014, defendant filed a motion
for return of property seeking the return of $200 that was
allegedly seized from him when he was arrested by the U.S.
Marshal Service on December 17, 2012. (Doc. No. 14.) On
December 4, 2015, the case was reassigned to the undersigned
district judge. (Doc. No. 24.) On January 13, 2016, the court
directed the government to respond to the motion. (Doc. No.
25.) The court twice attempted service of the order on
defendant to his last known address via the United States
Postal Service, but the order returned as
"undeliverable." (Doc. Nos. 26 and 30.) On January
11, 2016, the government responded with a motion to dismiss
the motion for return of property. (Doc. No. 28.)
response, the government stated that Robert Benesiewicz, a
case agent for Homeland Security Investigations, looked into
the matter. (Id. at 3.) The case agent found that on
the date of his arrest, defendant was issued a debit car from
Merced County Jail containing $155.96. (Id.) On
October 29, 2012, defendant was booked into Fresno County
Jail along with this debit card as his property.
(Id.) On January 16, 2013, after defendant pleaded
guilty and was sentenced in his federal case, the Fresno
County Jail transferred the defendant into the custody of the
U.S. Marshal's Service along with a property envelope
with the number "150." (Id.) On January
17, 2013, the U.S. Marshal's Service mailed the money
card to defendant's nearest contact, Melissa Nava, who
resided on Broadway Street in Atwater, California.
(Id.) Defendant's booking form, from when he was
booked into Fresno County Jail, listed this Broadway address
as his current address. (Id.) Immigration records
indicate that on or about January 5, 2016 defendant was
deported to Mexico. (Id. at 4.) The government
included in its response a declaration signed under penalty
of perjury by the case agent confirming these assertions.
(Id. at 5-7.) The government attempted service of
its response on the defendant's Broadway address in
Atwater and noted that it would "keep the Court apprised
of the possibility of a responsive pleading by the
defendant." (Id. at 4.) Since then over four
months have passed and no responsive pleading has been filed
by defendant and the court has not otherwise been contacted
about the matter.
41(g) of the Federal Rules of Criminal Procedure provides
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
where no criminal proceeding is pending, a district court has
discretion to hear a motion for the return of property as a
civil equitable proceeding. Kardoh v. U.S., 572 F.3d
697, 700 (9th Cir. 2009); U.S. v. Kama, 394 F.3d
1236, 1238 (9th Cir. 2005). Courts should exercise
"caution and restraint" before assuming
jurisdiction over such a motion and they must consider four
specific factors to determine if jurisdiction is warranted.
Id. (quoting Ramsden v. United
States, 2 F.3d 322, 324 (9th Cir. 1993)). The
district court must consider whether: (1) "the
Government displayed a callous disregard for the
constitutional rights of the movant"; (2) "the
movant has an individual interest in and need for the
property he wants returned"; (3) "the movant would
be irreparably injured by denying return of the
property"; and (4) "the movant has an adequate
remedy at law for the redress of his grievance ."
Id. at 324-25 (citing Richey v. Smith, 515
F.2d 1239, 1243-44 (5th Cir. 1975)). If the "balance of
equities tilts in favor of reaching the merits" of a
Rule 41(g) motion, the district court should exercise its
equitable jurisdiction to entertain the motion.
Ramsden, 2 F.3d at 326.
matter the court declines to exercise its equitable
jurisdiction to entertain defendant's motion and
therefore grants the government's request to dismiss the
motion. It has been over three years since defendant
originally filed his motion for return of property.
Nonetheless, he has not contacted the court about the motion
since its filing. Service of the court's recent order on
defendant has been unsuccessful. The court now has no known
method to contact defendant. Furthermore, the evidence
presented to the court by the government indicates that the
funds defendant references in his motion for return of
property were sent to his nearest friend or relative Melissa
Nava in January 2013. Accordingly, the balance of equities
does not favor the court exercising its equitable
jurisdiction over the matter.
of the reasons set forth above, 1) The government's
motion to dismiss defendant's motion for return of
property (Doc. No. 28) is granted;
Defendant's motion for return of property (Doc. No. 14)
Clerk of the Court is ...