Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Enrique Vega-Castaneda, Defendant.

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CR 04-847-PHX-EHC O R D E R

Pending before the Court is Defendant's "Motion to Return Property under Rule 41(g) of the Federal Rules of Criminal Procedure" filed March 27, 2006. (Dkt. 30). Defendant is confined at the California Correctional Center. The Government filed a Response April 24, 2006. (Dkt. 34) arguing that 'the Court "is without jurisdiction to entertain the motion.'" (p.3) The Response notes (p.3): ...Once the property in question has been administratively forfeited, however, the district court generally does not have the jurisdiction to entertain a Rule 41(g) motion.thUnited States v. Elias, 921 F.2d 870, 874-75 (9 Cir. 1990). The district court usually does not have equitable jurisdiction in such cases because there is 'no need to fashion an equitable remedy to secure justice for the claimant.' U.S. v. U.S. Currency $83,310.78, 851
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F.2d 1231 (9th Cir. 1998). One exception lies where the movant has not been given adequate notice of the forfeiture proceeding. See United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). (Emphasis Supplied). The Response (attached Exhibits A-E) covers the administrative record of the forfeiture proceeding. The Response discusses (p.2) actions taken to send a notice "of the Border Patrol's intent to administratively forfeit the money. (Exhibit B)." The Notice (letter) was sent October 28, 2004 to Defendant at his then place of confinement - Central Arizona Detention Center, Florence, Arizona, advising Defendant that the property was "subject to forfeiture" and that the letter was to "notify [him] of the seizure and [to] briefly describe the rights and remedies available for relief from forfeiture." The Response alleges that (p.2) "Defendant later petitioned for remission and AFU acknowledged receipt of that petition (Exhibit D)." A copy of the Petition is not attached as an Exhibit to the Response. The Government sent a letter (Exhibit D) to Defendant at the Florence, Arizona facility, acknowledging that it had received Defendant's Petition "dated 12/01/2004." The letter referenced "Asset Description: $1,201.00 U.S. Currency." The Defendant was advised that "A ruling on the petition will be made by the agency after the petition investigation and review have been completed. You will be advised in writing
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of this ruling." Defendant received this letter December 15, 2004, at Florence, Arizona. The Government sent a letter dated January 14, 2005 via "Certified Mail," to Defendant at the Florence, Arizona address, advising that the $1,201.00 U.S. Currency $700.00 Mex. Pesos" had been declared forfeited" pursuant to 8 U.S.C. 1324(a) (Exhibit E). Defendant was advised that he could

request "Reconsideration" and "a Petition for that purpose must be received within ten days of the receipt of this letter and be based on evidence not previously considered that is relief from forfeiture under the regulations of the INA. Please note that any further submission must be A receipt for

notarized or they will not be accepted."

delivery of Exhibit E was not attached to the Government's Response. (Dkt. 34). Defendant has not filed a Reply to the Government's Response. Accordingly, IT IS ORDERED the Government, within twenty days of this Order, mail a copy of the Receipt, if any, for the certified letter dated January 14, 2005. IT IS FURTHER ORDERED any Reply by Defendant must be filed within sixty days of the date of this Order. DATED this 14th day of July, 2006.

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