United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
the court is claimant's motion for return of property
pursuant to Federal Rule of Criminal Procedure 41(g). (ECF
No. 13.) On September 20, 2017, the court heard arguments
relating to items 2, 3, 5, and 28 (all other items having
been resolved), and on October 11, 2017, the government
returned all outstanding property to claimant except for
certain contested guns. (ECF No. 18; see ECF No. 19
at 2.) The parties filed supplemental briefs as to whether
the government was required to return the guns pursuant to
Rule 41(g). (ECF Nos. 19 & 20.) For the following
reasons, the court hereby GRANTS claimant's motion for
the return of property.
October 9, 2013, law enforcement officers executed a number
of federal search warrants related to allegations of the
unlawful manufacturing of firearms. (ECF No. 16.) A number of
weapons were seized from claimant Turner, although he was
never charged with a crime. Id. At issue now is the
disposition of four weapons, currently in the custody of the
Bureau of Alcohol, Tobacco, Firearms and Explosive, which may
or may not be illegal to possess under California law. (ECF
No. 19.) The government concedes that it has no authority to
keep the weapons, but suggests that the Court allow the
government to turn the weapons over to the California
Department of Justice, Bureau of Firearms, rather than return
them directly to claimant Turner. Id. at 2.
U.S. v. Martinson, 809 F.2d 1364, 1369 (9th Cir.
1987), the Ninth Circuit held that when federally seized
property “is no longer needed for evidentiary purposes,
. . . the government must justify its continued possession of
the property by demonstrating that it is contraband or
subject to forfeiture.” In U.S. v. Garcia,
2009 WL 996322, (D. Ariz. April 14, 2009), the district court
applied Martinson where the government no longer
needed to retain defendant's property as evidence after
it was legally seized incident to arrest. The property
consisted of a firearm, two gold chains, two cellular
telephones, and $4, 470.00 cash. Id. at *1.
On the night of Defendant's arrest, local police officers
requested that certain items, the cellular telephones and $4,
470.00, be turned over to them as evidence in their
investigations. The U.S. Marshal turned over the cellular
telephones and $4, 470.00 cash to the local police
Id. The court characterized this as an
“informal transfer” not based on any written
policy or protocol between federal and local agencies.
defendant pled to federal charges, the court ordered
forfeiture of the firearm, but the cell phones, two gold
chains, and cash remained at large. Id. The
government declined to comply with the court's order to
return the property, arguing that it had been turned over to
local agencies and was now outside the court's
jurisdiction. Id. at *2.
determining it did have jurisdiction over the property, the
Garcia court considered whether the government had
carried its burden to show the property should not be
The Government has not claimed ownership or argued it has a
right to possession adverse to Defendant. Furthermore, the
Government has not demonstrated that the property is
contraband or subject to forfeiture in this, or any other,
proceeding. . . .
. . .
Based on the chain of custody forms, the Court finds that the
two cellular telephones and $4, 470.00 cash are now in the
possession of state authorities[.] Therefore, the Court will
order monetary damages as equitable relief. . . . [T]he Court
orders the U.S. Marshals Service to return the jewelry, if it
has not yet done so.
While the Court does not wish to impede future cooperative
ventures between state and federal agencies, . . . the
Government produced no admissible evidence that the property
is being used as evidence in a state proceeding. Reassurances
from the Government's counsel is not admissible evidence.
Moreover, Deputy U.S. Marshal Brown testified that there were
no written or other documentary requests seeking a release of
the property from the U.S. Marshals Service to the local
police agencies, nor was he aware of any written memoranda of
understanding among task force agencies establishing a
protocol for the transfer of seized property. If
repeated, the manner in which the Government transferred
Defendant's property to local law enforcement could