Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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CROWE & SCOTT, P.A.
1100 E. Washington St. Suite 200 Phoenix, Arizona 85034-1090 Telephone: (602)252-2570 Facsimile: (602) 252-1939 Email: [email protected] Tom Crowe (#002180) Attorneys for Defendant

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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UNITED STATES OF AMERICA,
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) ) Plaintiff, ) ) v. ) ) DOMINIC T. AUSTIN (1), et al., ) ) Defendants. ) _____________________________________)

No. CR04-00313-PHX-FJM
DEFENDANT AUSTIN'S MOTION FOR CLARIFICATION OF ORDER

Defendant, Dominic Austin, by and through counsel undersigned, requests this Court to clarify paragraph 3 of its October 20, 2005 order (doc. 247) granting Austin's motion for return of seized property subject to the conditions set forth therein. Paragraph 3 of the order provides as follows: Having successfully asserted a claim to this property, Austin will be estopped in any future civil or criminal proceeding from denying that the property is his and the circumstances under which it was seized. Austin has asserted a claim to the subject property, the Court has concurred in that

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assertion of ownership and, therefore, Austin would be collaterally estopped from relitigating
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that issue in any future proceeding involving the government.
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However, clarification is requested with respect to Court's reference to "the
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circumstances under which it [the property] was seized." With respect to the seizure of the
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$4,100.00, Austin agrees that such property was obtained as a result of a warrantless search
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of his apartment in Tempe, Arizona on May 13, 2003 by officers of the Chandler Police
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Department. Austin previously moved to suppress that evidence on the grounds that the
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Case 2:04-cr-00313-FJM

Document 248

Filed 10/21/2005

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search was in violation of the Fourth Amendment (doc. 75). That motion was briefed by the parties but was rendered moot as a result of the government's dismissal of the indictment against Austin. It is submitted that the Court, in precluding Austin from disputing the "circumstances under which [the property] was seized," did not intend to hold that by seeking the return of the seized property, Austin was deemed to have waived or would be estopped in the future from asserting his Fourth Amendment rights should that issue be presented. Accordingly, the Court is respectfully requested to clarify its order accordingly. DATED this 21st day of October, 2005. CROWE & SCOTT, P.A.

By

s/ Tom Crowe Tom Crowe 1100 East Washington, Suite 200 Phoenix, Arizona 85034-1090 Attorneys for Defendant

Submitted by CM/ECF on this 21st day of October, 2005. Courtesy copy mailed on this 21st day of October, 2005, to: Honorable Frederick J. Martone Judge of the District Court Sandra Day O'Connor U.S. Courthouse Ste 526 401 W Washington St SPC 62 Phoenix AZ 85003-2154 By s/Cindy Malyuk

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Case 2:04-cr-00313-FJM

Document 248

Filed 10/21/2005

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