U.S. v. BUSTAMANTE

EDWIN TORRES, Magistrate Judge

This matter comes before the Court on Defendant's Motion for Return of Property Under Federal Rule of Criminal Procedure 41(g) [D.E. 234]. The government did not file a response in opposition. The Court has reviewed the record in this case and is otherwise fully advised.

Defendant contends that the following property was seized and never returned:

(1) one Sony VAIO laptop model PCG792L service tag C20016L8 in blue/black computer case and one Sony AC adapter #1479116110065827; (2) one Compaq Armada laptop model NC1006, #7920CDK10075 with Compaq computer adapter #00023577; (3) a USB floppy disk drive #50255695 with CD device driver PN # 4-664-084-41; (4) one MSR206 encoder S/N A009465 with two power cords and two pieces of white plastic; (5) $2,551.00 in US currency; (6) five CD's; (7) IBICO laminator HL4 S/N 00408; (8) one card, twenty-five presidential cards, and one sheet with miscellaneous numbers; (9) one First National credit card and one cash on demand card; (10) Gap gift card #6003860070272662 and receipt; (11) Cingular LG cell phone with travel adapter S/N 040926SW00711; (12) Motorola Cingular cell phone #SNN5696B and power adapter model PSM5185A; (13) miscellaneous PPW; (14) two cache receipts and one check #0099 for $3300; (15) Olympus digital voice recorder inside black case, one employment authorization card #A074937624, one travelers express company receipt #5347442210 and one policia nacional del Peru ID #199709 and badge; (16) one Volvo Weston receipt and one skimmer #MINI123SC; (17) Cracker Barrel GC and FEDEX Kinko's Card; (18) one permanent resident card #074937624, Peruvian passport #0528030 for Jorge L. Bustamante and five sheets of miscellaneous PPW; (19) Perry Ellis bag with 10 pieces of miscellaneous clothing and one Perry Ellis receipt totalling $328.50; (20) two income tax returns for 2002, two Truth in Lending disclosure forms and one Banco Continental brown envelope with miscellaneous documents; (21) Toys R' Us receipt for $422.18 dated 12/20/04; (22) fourteen miscellaneous shirts; (23) two purses, three hats and twelve miscellaneous pieces of clothing; (24) ten pieces of miscellaneous clothing and one Nautica receipt for $270.22 dated 4/10/05; (25) one Banco Credito USA Visa ending in 6098 and one Banco Continental Visas ending in 2380; (26) Republica Solidaria poster; (27) Peruvian National Police employee file; (28) one Washington Mutual Visa check card; (29) one Washington Mutual and one SunTrust receipt; (30) electronic board; (31) Public gift card #6006496629018085257; (32) Panasonic KX-FPG381 fax/copier machine #3KABB050700 with one power cord; (33) one tower S/N CG13120004361; (34) State Farm Insurance Bank ATM card last four digits 4988; (35) political papers for intent to run for president; (36) Home Depot receipt dated 2/16/05 for $15.78; (37) Republica Solidaria poster; (38) One Household Bank Visa #4314670000046154 in the name of Alvaro Delgado; (39) eight pieces of miscellaneous PPW; (40) gift card receipt for $50.22 dated 11/4/04, ending in 4061; (41) two 2003 tax returns; (42) one Washington Mutual check #264, one Wachovia check #1031 (blank), and one credit card receipt from Powerhouse, credit card ending 4014, for $1000.00, dated 4/12/04; (43) Republica Solidaria Poster; (44) one piece of notebook paper regarding manual card tipper and foil; (45) one Canon printer i80, S/N FCFF42316 and Canon AC adapter #00401454, and one Staples USB power cord; (46) card with miscellaneous names/numbers; (47) one Panasonic HD plasma screen, S/N YB4231377; (48) one floppy disk; (49) one DirectTV HD receiver S/N 75996RGY113960D; (50) one machine tower S/N GV24310004190.

Rule 41(g) authorizes a person "aggrieved by an unlawful search and seizure of property or by the deprivation of property" to move for the property's return. A Rule 41(g) motion filed after criminal proceedings against a defendant have been terminated, as occurred here, is treated as a civil proceeding for equitable relief. United States v. Martinez, 241 F.3d 1329, 1330-31 (11th Cir. 2001) (court aligned itself with the several other circuits that treat a Rule 41(g) motion filed after the termination of criminal proceedings as a civil proceeding for equitable relief). "[T]he person from whom the property is seized is presumed to have a right to its return, and the government must demonstrate that it has a legitimate reason to retain the property." United States v. Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001). If the government is no longer in the possession of the property, it has a duty to provide evidence that describes the circumstances of its disposal, loss or destruction. See id. (although the government alleged in its pleadings that the property sought by the defendant was destroyed, the pleadings were not verified and no supporting affidavits were filed).

As the government has failed to respond, it has also failed to meet the requirements of Potes Ramirez. As such, the government must account by April 24, 2007, for all of the items seized from Defendant, except for those items that have been forfeited by this Court's Final Order of Forfeiture [D.E. 239]. Pursuant to that Order, all right, title and interest in $2,551.00 in U.S. currency, a portable credit card skimming device, a digital encoder, and a laptop computer have been forfeited to the United States of America. For all the other items, the government must either return the property to Defendant or provide evidence that describes the circumstances of its disposal, loss or destruction. Potes Ramirez, 260 F.3d at 1314.

Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant's Motion for Return of Property Under Federal Rule of Criminal Procedure 41(g) [D.E. 234] is GRANTED IN PART AND DENIED IN PART. DONE AND ORDERED in Chambers at Miami, Florida.