Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY F. ANDREW S Assistant U.S. Attorney Arizona State Bar No. 021658 4035 S. Avenue A Yuma, Arizona 85365 Telephone: (928) 344-1087 Email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-847-PHX-EHC Plaintiff, v. Enrique Vega-Castaneda, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO RETURN PROPERTY

The United States, by and through undersigned counsel, hereby submits this response in opposition to Defendant's Motion to Return Property under Rule 41(g) of the Federal Rules of Criminal Procedure. For the reasons set forth in the accompanying Memorandum of Points and Authorities, the government contends that the Court should deny Defendant's motion on the basis that it is without jurisdiction to entertain the motion. Respectfully submitted this 24 th day of April 2006. PAUL K. CHARLTON United States Attorney District of Arizona

s/ TIMOTHY F. ANDREWS Assistant United States Attorney

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I.

FACTS AND PROCEDURAL HISTORY On July 24, 2004, agents of the United States Border Patrol who were investigating a

potential alien smuggling operation stopped a minivan near the Colorado River in Yuma. The agents discovered that the driver, Defendant Enrique Vega-Castaneda, was illegally in the United States. The agents then arrested Defendant and discovered that he had $1,200 and 700 Mexican Pesos on his person. During questioning, Defendant had stated that he was working for an alien smuggler and was going to use the van to pick up a load of aliens at the river. Defendant also stated that he had picked up aliens at the river many times in the past and received between $50 and $100 for each person he picked up. Defendant further stated that the money he had on him when he was arrested was money he had earned smuggling aliens. While Defendant was being processed at the Border Patrol Station in Yuma, Defendant signed a statement admitting that the money he had in his possession was money he had earned picking up aliens who were illegally in the United States. (Exhibit A). Agents also discovered that Defendant had been deported from the United States in the past and had a criminal history that included a conviction qualifying as an aggravated felony. Defendant was then charged with violating 8 U.S.C. § 1326 (a), enhanced by § 1326 (b)(2), Reentry after Deportation. Defendant subsequently entered into an agreement with the government and pleaded guilty to the foregoing charge. On November 1, 2004, the Court sentenced Defendant to a 33-month term of imprisonment (CR:16). Regarding the money seized from Defendant on the day of the arrest, Border Patrol's Asset Forfeiture Unit (AFU) advised the government that it initially had not been able to give Defendant actual notice of its intent to administratively forfeit the money because Defendant had not given a valid address to which the notice could be sent. The government subsequently sent AFU a letter with Defendant's current address at the time and instructed the AFU to send notice of the Border Patrol's intent to administratively forfeit the money. (Exhibit B). The next day, AFU sent out the notice, along with an explanation of Defendant's rights to petition for remission or mitigation of the forfeiture. (Exhibit C). Defendant later petitioned for remission 2

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and AFU acknowledged receipt of that petition (Exhibit D). On January 14, 2005, AFU notified Defendant that it had denied his petition based on Defendant's admission that he had earned the money by smuggling aliens. (Exhibit E). More than one year later, on March 27, 2006, Defendant filed a motion under Rule 41(g) Fed. R. Crim. P. asking for return of the money seized incident to his arrest, and the government now files this response.

II. LAW AND APPLICATION "A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return." Rule 41(g), Fed. R. Crim. P. When no criminal case is pending, the district court can nonetheless exercise the jurisdiction to entertain a Rule 41(g) motion as a civil equitable proceeding. U.S. v. Martinson, 809 F.2d 1364, 1366-67 (9 th Cir. 1987). 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. United States v. Elias, 921 F.2d 870, 874-75 (9 th 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 F.2d 1231 (9 th 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 (9 th Cir. 2003). The government contends that the Court does not have the jurisdiction to hear Defendant's motion in the instant case. The proceeds gained from bringing in and harboring illegal aliens may be seized and are subject to forfeiture. 8 U.S.C. §1324(b)(1). The procedure for forfeiting such proceeds are governed by Title 18, Chapter 46, relating to civil forfeiture. 8 U.S.C. §1324(b)(2). The Rules of Criminal Procedure do not govern in civil property forfeiture proceedings. Rule 1(a)(5)(B), Fed. R. Crim. P. Defendant is therefore impermissibly relying on the Federal Rules of Criminal Procedure to challenge the administrative forfeiture, a civil matter. The government also contends that, even if the Court were to consider exercising equitable jurisdiction over the Rule 41(g) motion, there would be no relief available to Defendant because 3

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he had an adequate remedy at law. Once Defendant's address was verified, he received notice of the forfeiture. (Exhibit C). Defendant then petitioned for remission of the forfeiture, and that petition was denied because he admitted that he had earned the money by smuggling aliens. (Exhibits A, E). Defendant was afforded adequate notice of the forfeiture in the instant case; and, should the Court agree with the government's analysis, then the Court should conclude that it does not have the jurisdiction to entertain Defendant's motion. See U.S. v. Clagett, 3 F.3d 1355, 1356 n.1 (9 th Cir. 1993); Elias, 921 F.2d at 874, 875.

III. CONCLUSION Defendant's Rule 41(g) motion should have been filed not in his completed criminal case but in a separate civil case. Administrative forfeiture is a civil matter, not a criminal matter. Furthermore, even if the Court were to consider granting equitable jurisdiction over the matter, Defendant had an adequate remedy at law and is therefore barred from receiving any equitable relief. The Government respectfully requests that the Court deny the defendant's motion Respectfully submitted this 24 th day of April 2006. PAUL K. CHARLTON United States Attorney District of Arizona

s/ TIMOTHY F. ANDREWS Assistant United States Attorney

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CERTIFICATE OF SERVICE I hereby certify that, on April 24, 2006, I delivered a copy of the attached document via U.S. Mail to the following, who are not registered participants of the CM/ECF System for electronic filing. Enrique Vega-Castaneda Reg. 26070-359 California City Correctional Center P.O. Box 3001-0001 California City, CA 93504 by: s/ Timothy F. Andrews

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