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
REPLY IN SUPPORT OF DEFENDANT AUSTIN'S MOTION FOR RETURN OF SEIZED PROPERTY

Defendant, Dominic Austin, by and through counsel undersigned, submits this reply in support of his motion for return of his property previously seized by the government. The accompanying memorandum of points and authorities is incorporated herein. DATED this 5th day of August, 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 A. GOVERNMENT'S STATEMENT OF FACTS With limited exceptions, Defendant agrees with the facts set forth in Section A of the government's response. Those exceptions are as follows: (1) The amount of money sought to be returned as a result of the May 13, 2004 search is $4,100.00 in cash, not $4,000.00; (2) the government's characterization of its June 29, 2005 letter (Exhibit "A" to the response) is inaccurate; and (3) the inference which the government seeks to draw from counsel's letter to counsel for another defendant that Austin intended to invoke his Fifth Amendment constitutional right if called as a trial witness by that defendant is unfounded. The government represents that it declined to return Austin's property­and so stated in its June 29, 2005 letter­because it "was considered to be fruits of the robbery of the Arizona Central Credit Union on May 12, 2003." (Response at 2.) The letter does not so state. Regardless, as the government well knows, there is no evidence whatsoever that the clothes, the $139.00 on Mr. Austin's person at the time of his arrest (not $131.00 as stated in the government's letter), or the $4,100.00 seized as a result of the May 13, 2003 search are "fruits of the robbery of the Arizona Central Credit Union on May 12, 2003." Finally, the government has made no showing or even argument of any need to retain the property as evidence.1 Shortly prior to the trial, the government informed counsel for Austin that it was moving to dismiss all charges against Austin, assuming that counsel for Austin would agree to a dismissal without prejudice. Obviously, counsel concurred with the dismissal on those terms, and had consistently urged the government to take this action on the grounds that Austin was not guilty of the offenses with which he was charged. Indeed, counsel believed then and believes now that government's action was not only in the interests of justice but also that such action was a tribute to the professionalism and ethics of the government
In his December 10, 2004 motion [Dkt. 76], Austin contended that the search which produced the $4,100.00 was invalid. That motion was denied as being moot by reason of the dismissal. 2
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attorneys who were responsible for handling the case. They should properly be commended for their decision. Following the dismissal, defendant McCreary, through his counsel, requested that Austin appear and testify on his behalf. Counsel saw no benefit to Austin in so testifying without immunity. In addition, this hardly seemed the best way to reciprocate the

government's dismissal, as counsel informed the government at that time. Accordingly, counsel for Austin advised all parties that Austin, on his advice, would assert all constitutional privileges available to him, including his Fifth Amendment privilege. Inasmuch as McCreary, not the government, sought Mr. Austin's testimony, there was no immunity grant and Austin was not called as a witness by any party. B. GOVERNMENT'S STATEMENT OF LAW Defendant agrees with the majority of the government's statement of the applicable law; at least until the concluding assertions set forth therein. The government maintains that it has a legitimate reason to retain the property because: (1) The indictment against the defendant was dismissed without prejudice; (2) counsel for Austin informed counsel for McCreary that Austin would assert his Fifth Amendment privilege if called by McCreary as a witness at trial; (3) the government has represented that it is continuing its investigation of Austin for prosecution on the subject offense(s); and (4) under the present posture of the case, Austin should not be entitled to the presumption that he is entitled to the return of his property. (Response at 4-5.) None of these reasons operate to defeat Austin's motion. The fact that counsel for Austin informed counsel for McCreary that Austin would invoke his Fifth Amendment privilege if called as a witness at trial is not relevant to the issues here presented and is unsupported by any case law. Indeed, in United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987), which the government relies upon in its response, Martinson testified that he owned the guns (the property sought to be returned) and rested. On cross-examination, he invoked his Fifth Amendment privilege and his testimony was stricken. The District Court decision was reversed and remanded and Martinson's invocation
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of his privilege was not considered as tantamount to an admission of guilt. Here, nevertheless, the government seems to suggest that if one invokes his Fifth Amendment privilege, this should read as an indication of guilt. The law does not support such an inference. As the government has noted, at least two federal grand juries previously concluded, prior to the entry of the order of dismissal, that there was probable cause sufficient to support the charges against Austin. The law is clear to the effect that a defendant's (McCreary's) right to compel a witness (Austin) to testify must yield to that witnesses assertion of the Fifth Amendment based upon a fear of prosecution which is not unreasonable. See, United States v. Mack, 159 F.3d 208, 217 (6th Cir. 1998). This is separate and distinct from any inference of guilt. Next, the government states that it is pursuing its investigation for the subject bank robberies against Austin and, therefore, Austin has the burden of going forward with the evidence. The government does not dispute the fact that Austin owns the property which he seeks to have returned. The government does not dispute the fact that no forfeiture proceedings have been initiated. The government does not dispute the fact that there is no evidence that either the clothes or the money was obtained from the proceeds of any bank robbery, including the Arizona Credit Union robbery on May 12, 2003. (Indeed, as to the clothes, the defendant not only had receipts for same on his person at the time of his arrest, but also had his ATM receipt establishing the source of the funds used to purchase the clothing.) The situation is analogous to that in Martinson, where the claimant testified that he owned the subject property and rested. Thereafter, even accepting the government's argument regarding the burden of proof, the burden then shifts to the government to establish that it has a "legitimate reason to retain the property." No legitimate reason has been presented. The money contains no fingerprints, serial numbers, dye lots, bait bills, similar denominations or any other distinguishing characteristics which would cause it to have any evidentiary value whatsoever.
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While Austin's motion does not turn on the burden of proof, the government's assumption regarding same is flawed. Again, Martinson, on which the government relies, specifically notes that the burden of proof also shifts, according to some courts, if the government has held the property sought to be returned for an extended period of time and does not begin a prosecution. See, Lucky Messenger Service, Inc. v. United States, 587 F.2d 15, 17 (7th Cir. 1978) (eighteen months); Application of J.W. Schonfeld, Ltd., 460 F.Supp. 332 at 337 (E.D. Va. 1978) (five months); Robinson v. United States, 734 F.2d at 738 (11th Cir.1984) (unreasonably long retention without instituting forfeiture proceedings can constitute due process violation); Offices of Lakeside Non-Ferrous Metals, Inc. v. United States, 679 F.2d 778, 780 (9th Cir.1982) (rights of owner become more critical the longer the government retains property). Martinson 809 F.2d at 1370, fn. 5. The property here in issue was taken from Austin on May 12 and 13, 2003. The indictment was returned in March, 2004, followed by a superseding indictment and an order of dismissal. Thus, the government has been in possession of the subject property for twenty-seven months. Some seventeen months has elapsed since the return of the indictment. The key point here is the same as it was in Martinson: The government no longer has an evidentiary need for the clothing or the money. Indeed, the property has no evidentiary value. If the government believes otherwise, it is at liberty to preserve the evidence by other, equally satisfactory means, such as by photographing and inventorying same, just as it would in the case of an automobile, perishable materials, or other items which are not practical to bring into court. C. CONCLUSION This Court should direct the government to return the subject property to Mr. Austin as provided for in the order lodged herein. /// /// ///
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DATED this 5th day of August, 2005. CROWE & SCOTT, P.A.

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

Submitted electronically on this 5th day of August, 2005. Courtesy copy of the foregoing mailed this 5th day of August, 2005, to: The Honorable Frederick J. Martone United States District Judge Sandra Day O'Connor U.S. Courthouse 401 W. Washington Phoenix, AZ 85003-2156 Benjamin N. Sternberg Law Offices of Benjamin N. Sternberg 433 North Camden Drive, Suite 970 Beverly Hills, CA 90210 Attorney for John Freeman Hunter By /s/ Cindy Malyuk

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