Free Motion for Return of Property/PreTrial - 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 Tom Crowe (#002180) Attorneys for Defendant

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) DOMINIC T. AUSTIN (1), et al., ) ) Defendants. ) _____________________________________) No. CR04-00313-PHX-FJM
DEFENDANT AUSTIN'S MOTION FOR RETURN OF SEIZED PROPERTY

Defendant, Dominic Austin, by and through counsel undersigned, and pursuant to
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Fed. R. Crim. P. 41(g), moves for the return of his property described herein which was
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previously seized and has been retained by the government for the reason that the property
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is no longer needed as evidence and the government has no legitimate reason to retain it.
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This motion is supported by the accompanying memorandum of points of authorities and the
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matters of record herein.
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Excludable delay under 18 U.S.C. § 3161(h)(8)(A) will not occur as a result of this
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motion or of an order based thereon.
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DATED this _____ day of _____________, 2005.
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CROWE & SCOTT, P.A.
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By_________________________
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Tom Crowe 1100 East Washington, Suite 200 Phoenix, Arizona 85034-1090 Attorneys for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF PROCEDURAL HISTORY On March 30, 2004, Austin and three other defendants were charged by indictment with certain bank robbery related offenses committed on January 12, 2002 (Tempe Schools Credit Union), February 28, 2002(Safeway Federal Credit Union) and May 12, 2003 (Arizona Central Credit Union). A superseding indictment was returned on February 16, 2005. On June 1, 2005, on motion of the government, the indictment was dismissed in its entirety without prejudice as to Mr. Austin and the Counts pertaining to the May 12, 2003 Arizona Central Credit Union robbery where dismissed against the other defendants. II. SUMMARY OF RELEVANT FACTS PERTAINING TO PROPERTY SEIZED The property which Mr. Austin seeks to have returned was seized at the time of the Arizona Central Credit Union on May 12, 2003. Mr. Austin was arrested on May 12, 2003. Certain items were seized from his person at that time. The following day, with the alleged consent of Ms. Ashley Collins, his apartment was searched by the Chandler Police Department. Mr. Austin seeks the return of the following property: 1. The new clothes that were seized from him at the time of his arrest on May 12, 2003, together with the $139.00 in cash on his person. 2. The $4,100.00 in cash that was seized as a result of the May 13, 2003 search of his apartment at 2134 E. Broadway Road, No. 2016, Tempe, Arizona. While other items of property were also seized from Mr. Austin, he does not seek the return of any other property at this time except that requested above.

By letter dated June 24, 2005 to the United States Attorney, counsel for Mr. Austin tried informally to secure the return of Mr. Austin's property. On June 29, 2005, that request was denied. III. SUMMARY OF APPLICABLE LAW The applicable law is straightforward and concise. Indeed, the most succinct and
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recent summary is set forth in the recently decided case of United States v. Kaczynski, ____ F.3d _____, 2005 WL 1692494 at 3 (9th Cir., July 21, 2005) as follows: Federal Rule of Criminal Procedure 41(g) provides that "a person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return." Property seized for the purposes of trial that is neither contraband nor subject to forfeiture should ordinarily be returned to the defendant once trial has concluded. United States v. Van Cauweberghe, 934 F. 2d 1048, 1060-61 (9th Cir. 1991). A defendant is indeed presumed to have a right to the return of his property once the property is no longer needed as evidence, and the government has the burden of showing that it has a "legitimate reason to retain the property." See United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). Mr. Austin does not seek the return of any property that constitutes contraband. None

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of the property requested to be returned is subject to any forfeiture proceedings.
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The

government has no legitimate reason to retain the property.
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IV.
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CONCLUSION Mr. Austin requests this Court to enter an order requiring the government to return to

him the property identified herein within a specified period of time.
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DATED this 22nd day of July, 2005. CROWE & SCOTT, P.A.

By

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

COPYnd the foregoing mailed of this 22 day of July, 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

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COPY delivered electronically or mailed this 22nd day of July, 2005, to: Charles F. Hyder Kim Hare Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 Benjamin N. Sternberg Law Offices of Benjamin N. Sternberg 433 North Camden Drive, Suite 970 Beverly Hills, CA 90210 Attorney for John Freeman Hunter Dana Carpenter 3106 N. 16th Street Phoenix, AZ 85016 Attorney for Derrick L. McCreary Stephen C. Kunkle 111 W. Monroe, Suite 1212 Phoenix, AZ 85003 Attorney for Sahdiq McNair By___________________

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