Free Reply to Response - 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 REPLY IN SUPPORT OF MOTION FOR SUMMARY RELIEF

Defendant, Dominic Austin, by and through counsel undersigned, submits this reply in support of his request that the Court summarily grant his prior motion for the return of his clothes and money that were seized on May 12 and 13, 2003. This reply is supported by the accompanying memorandum of points and authorities and the matters on file herein. DATED this 19th 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

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MEMORANDUM OF POINTS AND AUTHORITIES The legal issues regarding the return of Mr. Austin's property were previously briefed. On August 5, 2005, the Court denied Austin's motion ". . . at this time, but without prejudice to reurge it if, within 60 days of this order, the government fails to pursue the matter." (doc. 230). The government failed to pursue the matter and, on October 14, 2005, Austin filed his motion for summary relief (doc. 244). The government's response to that motion (doc. 245) is essentially a duplicate of its response to Austin's initial motion (doc. 221). For reasons unknown, the government has wholly ignored and failed to address either the legal authorities or rationale set forth in Austin's reply in support of his initial motion (doc. 227). Austin will endeavor to avoid a similar regurgitation of the matters which have already been presented to the Court. In summary, the government has not disputed any of the following facts: (1) That Austin owns the property which he seeks to have returned; (2) That no forfeiture proceedings have been initiated; (3) That the money contains no fingerprints, recorded serial numbers, dye lots, bait bills or other identifying information; and (4) That there is no evidence that the clothes or the money were obtained as the result of any criminal activity. In addition, the government has conspicuously avoided addressing Austin's suggestion that any legitimate law enforcement interests can be protected by photocopying, photographing and inventorying the property as the government routinely does in other cases. (See, Austin's reply, doc. 227 at 5.) Both Austin and the government cite United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987) and United States v. Kaczynski, 416 F.3d 971 (9th Cir. 2005). Austin reads those cases as rejecting the government's contentions. The government reads Martinson as requiring the person seeking the return of property which may have evidentiary value to prove: (1) That the seizure of the property was illegal; and (2) That such person is entitled to the possession of such property (Government's response, doc. 245 at 3.)
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The government is mistaken, Rule 41(g) does not so provide, and the cases decided thereunder do not so hold. The Rule is in the alternative and permits relief when a person is aggrieved by the deprivation of property whether or not the search was unlawful. The government may have overlooked the fact that Martinson was decided in 1987 and, thus, the 1989 amendment to what is now Rule 41(g)­then 41(e)­had not yet been adopted. This is significant as Kaczynski specifically so recognizes: . . . [T]he 1989 Advisory Committee Notes to Rule 41(g) set reasonableness as the standard to be used in ruling on motions for the return of property, and emphasized that "if the United States' legitimate interests can be satisfied even if the property is returned, continued retention of the property would become unreasonable." Kaczynski, 16 F.3d at 975, fn. 6. The Advisory Committee Notes further state as follows: Prior to the [1989] amendment, Rule 41(e) did not explicitly recognize a right of a property owner to obtain return of lawfully seized property even though the government might be able to protect its legitimate law enforcement interests in the property despite its return­i.e., by copying documents or by conditioning the return on government access to the property at a future time. As amended, Rule 41(e) provides that an aggrieved person may seek return of property that has been unlawfully seized, and a person whose property has been lawfully seized may seek return of property when aggrieved by the government's continued possession of it. (Emphasis added.) In this case, the government has offered no reason or rationale whatsoever why its law enforcement interests cannot be satisfied by other means if the property is returned.1 The government has now deprived Austin of his property for almost 2½ years. The presumptions recognized in Martinson from such an extended period of time should be applied here. In light of those cases, the Advisory Committee Notes, and Kaczynski it is submitted that the
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The government suggested that if an indictment is returned, if Austin proceeds to trial, if Austin is convicted, and if restitution is ordered, the $4,239.00 ($4,100.00 plus $139.00) would not be available to satisfy the judgment if the property is returned to Austin. The government's position is without support in the rules or in the case law. 3

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the government's continued retention of the property has become unreasonable. This Court is requested to put an end to this matter now and direct the government to return the subject property to Austin at the office of his counsel within 10 calendar days of the entry of its order. DATED this 19th day of October, 2005. CROWE & SCOTT, P.A.

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

Submitted by CM/ECF on this 19th day of October, 2005. Courtesy copy mailed on this 19th 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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