Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona CHARLES F. HYDER Assistant U.S. Attorney Arizona State Bar No. 001967 Email: [email protected] KIMBERLY HARE Assistant U.S. Attorney Arizona State Bar No. 020483 United States Attorney's Office Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Dominic Austin, (1), et. al, Defendant. CR-04-0313-PHX-FJM GOVERNMENT'S RESPONSE TO DEFENDANT AUSTIN'S MOTION FOR SUMMARY RELIEF

The United States, by and through counsel, responds to Defendant Austin's Motion For

16 Summary Relief and requests this Honorable Court deny the motion. 17 The government's position is set forth with specificity in the attached Memorandum of 18 Points and Authorities. The government includes herein and adopts by reference, all 19 pleadings, records, transcripts, and testimony in this case. 20 21 22 23 24 25 26 27 28 Respectfully submitted this 17th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ ________________________________ CHARLES F. HYDER Assistant U.S. Attorney KIMBERLY HARE Assistant U.S. Attorney

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1 2 A. FACTS: 3

MEMORANDUM OF POINTS AND AUTHORITIES

On March 30, 2004, an Indictment was returned in this case charging Dominic Austin,

4 Derrick McCreary, Jonathan Hunter, and Sahdiq McNair*, with Conspiring to Commit Bank 5 Robbery, Counts 1, 3 and 6, Armed Bank Robbery, Aid and Abet, Counts 2, 4 and 6, Use of a 6 Firearm in the Commission of a Crime of Violence, Aid and Abet, Counts 5, 7 and 9. 7 On February 16, 2005, a Superceding Indictment was filed, charging, Conspiracy, Count

8 1, Armed Bank Robbery, Aid and Abet, Counts 2, 4 and 6, and Use of a Firearm in the 9 Commission of a Crime of Violence, Counts 3, 5 and 7.** 10 On May 9, 2005, the government filed a Motion to Dismiss the Superceding Indictment

11 without prejudice against Defendant Austin and to dismiss Overt Act 3 against all defendants, 12 and to dismiss Counts 6 and 7 against Hunter and McCreary. 13 On May 12, 2005, Sahdiq McNair entered a plea of guilty to conspiracy, Count 1 of the

14 Superceding Indictment. 15 On June 2, 2005, the court granted the Government's Motion To Dismiss the Superceding

16 Indictment against Austin, without prejudice. 17 On June 22, 2005, the jury found the defendants Hunter and McCreary guilty of Counts 1,

18 2, 3, 4 and 5 of the Superceding Indictment. 19 On June 29, 2005, Austin filed a motion requesting the return of property seized pursuant

20 to the consensual search by Austin's girlfriend to the apartment she and Austin shared. 21 Austin requests the return of new clothes, $139.00 in cash taken from him at the time of his 22 arrest on May 12, 2003 and $4,000.00 found secreted in his apartment, under a mattress, with 23 a gun. Austin does not seek the return of the gun. 24 25 26 27 28
*McNair charged only in Counts 1, 2 and 3. **McNair charged only in Counts 1, 2 and 3.

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Prior to the filing of the motion, Austin's attorney requested the return of property via a

2 letter addressed to the United States. Government's counsel replied that Mr. Austin was still 3 under investigation on all charges and that the property, requested by Austin to be returned, 4 was considered to be fruits of the robbery of the Arizona Central Credit Union on May 12, 5 2003. (See Attachment A). 6 It is respectfully submitted that the defendant's allegation that the government has no

7 legitimate reason not to return the property is in error. 8 The Government's investigation, at the time it responded to the defendant's motion for

9 return of property, conteplated, in part, attempted contact with defendant's McCreary and 10 Hunter, after they are sentenced. Due to events outside of the Government's control, the 11 sentencing of these defendant's have been continued. It is not unreasonable conduct by the 12 Government to explore contacts with McCreary and Hunter and to follow up on the 13 information, if any, that's received. 14 B. LAW: 15 A District Court has jurisdiction to entertain motions to return property seized by the

16 government when there are no criminal proceedings pending against the movant. United 17 States v. Martinson, 809 F.2d 1364, 1366 (9th Cir. 1987). 18 Such motions are treated as civil equitable proceedings even if styled as being made

19 pursuant to Federal Rule of Criminal Procedure 41(g) (formerly Federal Rule of Criminal 20 Procedure 41(e)). Such motions are essentially civil actions to recover personal property. 21 Weldon v. United States, 196 F.2d 874, 875 (9th Cir. 1952). 22 When such a motion for return of property is made before an indictment is filed, but a

23 criminal investigation is proceeding, the movant bears the burden of proving: 24 (1) That the seizure of the property was illegal, and, (2) that he is entitled to lawful

25 possession of the property. In this case, Mr. Austin has failed to show either in his motion. 26 Generally, the government would have the burden of demonstrating that it has legitimate

27 reason to retain the property if the property in question is no longer needed for evidentiary 28
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1 purposes either because the trial is completed, the defendant has pleaded guilty, or the 2 government has abandoned its investigation. United States v. Kaczynski, 416 F.3d 971, (9th 3 Cir., 2005); United States v. Martinson, 809 F.2d at 1369. 4 In the case at bar, the defendant was dismissed from the Superceding Indictment without

5 prejudice. Counsel for Mr. Austin informed the court and counsel for the defendant 6 McCreary that, in the event Mr. Austin was subpoenaed in the trial, his client would invoke 7 his Fifth Amendment privilege against self-incrimination. Indeed, on June 7, 2005, the court 8 denied the Defendant McCreary's Motion To Compel the Government's To Grant Immunity 9 To Mr. Austin so that he could appear as a defense witness for McCreary. The government 10 informed the court that the investigation into Austin's part in the robberies would be 11 continuing and that part of the investigation would be to attempt to see if either defendant 12 desired to cooperate with the government in the event of convictions. 13 The court has knowledge, based on the pleadings, arguments, testimony and exhibits

14 introduced pretrial and the trial of the case against defendants Hunter and McCreary, that the 15 government's representation with regard to its investigation into Mr. Austin is made in good 16 faith. 17 The defendant's suggestion that photographing money seized would satisfy the

18 government's evidentiary concerns is without merit. In the event that proceedings against Mr. 19 Austin are carried forward to conviction the money would, in all probability, not be available 20 for return to the bank. Restitution, in such an event, would not be a sufficient recourse. The 21 money is presently retained by the FBI in it's evidence facilities. In the event the 22 investigation does not result in charges against Mr. Austin, he will still have to meet the 23 burden of proving that the seizure of the money was illegal, and that he is entitled to lawful 24 possession of the property. 25 // 26 // 27 28
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The United States respectfully submits that Austin's motion should be denied. Respectfully submitted this 17th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ __________________________________ CHARLES F. HYDER Assistant U.S. Attorney KIMBERLY HARE Assistant U.S. Attorney
I hereby certify that on October 17, 2005 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

13 Tom Crowe, Esq. Attorney for Dominic Austin 14 Benjamin N. Sternberg, Esq. 15 Attorney for John Freemen Hunter 16 Dana Carpenter, Esq. 17 Attorney for Derrick L. McCreary 18 Steven C. Kunkle, Esq. Attorney for Shadiq McNair 19 20 21 22 23 24 25 26 27 28
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S/ Joyce Stern

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