Cases published since November 1987.
  • Contact Us
  • James Publishing
  • Login
Logo
Searching Tips

How To Search: Type words into the entry box that you want to search for, then click [Search].
Any Word: Just type one or more words to find any of the words. [ Find ANY ] is the usual default.
All Words: Type more than one word and select [ Find ALL ] to find all of the words.
Or you can use Booleans (see below).
Exact Phrase: “…”
You can search for exact phrases by surrounding them in double quotes. Or you can just type the words and select [ Find EXACT phrase ]. Punctuation must be the same to be found between words, for example “Smith, John”
Boolean Operators: + –
Use + in front of each word or a quoted phrase that you require.
Use – in front of each word that you want to exclude.
Boolean Expressions: AND OR NOT ( )
Use AND, OR, NOT, (, and ) to form a Boolean expression. AND requires, OR allows, NOT excludes.
Use double quotes to protect the words “and”, “or”, or “not” in a phrase.
Examples:

Query Gets the documents with
stock market ‘stock’ or ‘market’ or both
“stock market” the phrase ‘stock market’
+stock +market ‘stock’ and ‘market’
+stock -market ‘stock’ but not ‘market’
+president -“United States” ‘president’ but not ‘United States’
(stock OR market) AND NOT president ‘stock’ or ‘market’, and without ‘president’

Capitalization doesn’t matter. The ranked results will come from a total match on the words and phrases which you supply, so try to think of several specific terms for your topic and spell them correctly. It may help to include important plurals and derived words too, like [address addresses contact contacting information] .

Table of Contents

900 – Forfeitures, Generally

900 – Forfeitures, Generally
  • 905 Jurisdictional Issues
  • 910 Constitutional Issues
  • 920 Procedural Issues, Generally
  • 950 Probable Cause
  • 960 Innocent Owner Defense
  • 970 Property Forfeited

Back to main table of contents

§940 Return of Seized Property, Equitable Relief

Second Circuit
Fifth Circuit
Seventh Circuit
Ninth Circuit
Tenth Circuit

2nd Circuit upholds release of nonforfeitable funds prior to trial. (940) The government seized a bank’s interbank account which contained about $7 million.  About $1.7 million was attributable to de­posits of money orders which the government alleged were used by Colombian drug cartels to launder money through the interbank account.  The district court rejected the government’s claim that the entire account was forfeitable, and ordered the government to return to the bank the funds that were not at­tributable to money orders.  The 2nd Circuit upheld the release of funds prior to the forfeiture trial.  There was no support for the government’s con­tention that it was entitled to retain the illegally seized funds until a forfeiture trial.  Although it would be senseless to order the release of funds if the government could immediately commence a forfei­ture proceeding and establish probable cause, there was no indication that it could.  Marine Midland Bank v. U.S., 11 F.3d 1119 (2nd Cir. 1993).

 

2nd Circuit orders relief for improperly noticed forfeiture despite claimant’s delay. (940) Claimant’s property was civilly for­feited, but notice was improper because a registered letter sent to claimant was re­turned and because the government then published notice only once instead of the statutorily required three times.  Neverthe­less, the district court denied claimant’s re­quest for civil equitable relief because claimant received actual notice of the forfei­ture during his criminal trial but waited to seek equitable relief until after the statute of limitations had expired for initiating a proper forfeiture proceeding.  The 2nd Circuit dis­agreed, ordering relief.  The court also found irrelevant that the district court that sen­tenced claimant had taken into account the amount of the forfeiture in setting a reduced fine.  U.S. v. Giovanelli, 998 F.2d 116 (2nd Cir. 1993).

 

2nd Circuit affirms dismissal of Rule 41(e) motion because administrative forfeiture had begun. (940) The 2nd Circuit affirmed the district court’s dis­missal of claimant’s motion under Fed. R. Crim. P. 41(e) for the return of his seized property, since the fed­eral gov­ernment had begun administrative forfei­ture proceedings.  Once the federal gov­ernment properly commences a civil forfei­ture proceeding, it is the preroga­tive of the claimant to chose the forum of adjudication.  A judicial action may be commenced by filing a claim and cost bond within a certain time period, or an administrative forfeiture occurs by de­fault.  Under all of these scenarios, the claimant is afforded the oppor­tunity to test the legality  of the seizure in the forfei­ture proceeding.  Consequently, once the administra­tive process has be­gun, the dis­trict court loses sub­ject mat­ter jurisdiction to adjudi­cate the matter in a Rule 41(e) motion.  Here, the ad­ministrative forum afforded claimant the op­portunity to raise all objec­tions to the seizure. U.S. v. One 1987 Jeep Wrangler Automobile, 972 F.2d 472 (2nd Cir. 1992).

 

2nd Circuit says prisoner’s motion to re­turn seized property is not mooted by gov­ernment’s destroying or declar­ing it for­feit. (940) After defendant’s ar­rest, the gov­ernment seized property from his apartment.  Some of the prop­erty was later forfeited and some of it was destroyed.  However, two years after the seizure, other property, including computer hard­ware and software, re­mained in the govern­ment’s possession.  Defendant filed a motion seeking the re­turn of his prop­erty, and the government was di­rected to show cause why the re­lief should not be granted.  Thereafter, the government de­stroyed the software and the computer hard­ware was trans­ferred to the DEA for adminis­trative forfeiture.  The gov­ernment advised the court that all of defendant’s property that had not been for­feited, destroyed, or trans­ferred to the DEA would be turned over to him.  The district court ruled that this mooted the defen­dant’s motion.  On appeal, the 2nd Circuit re­versed, holding that the govern­ment’s “conspicuous evasion” of a court order did not divest the district court of ju­risdiction.  The court was ordered to de­termine whether damages were appro­priate for the destroyed software, and to conduct a hearing on return of the hardware or dam­ages if it was not re­turned.  Soviero v. U.S., 967 F.2d 791 (2nd Cir. 1992).

 

5th Circuit holds defendant did not have adequate remedy in state forfeiture pro­ceeding where FBI retained claimant’s money. (940) In May, claimant filed a Rule 41(e) motion for the return of money held by the FBI.  In August, the FBI issued two checks to claimant for the total amount claimed.  Louisiana seized these checks two months later, and in November, Louisiana claimed the checks in a forfeiture proceeding.  The district court then dismissed claimant’s Rule 41(e) motion, holding that the Louisiana forfeiture proceeding represented an ade­quate remedy at law under which claimant could recover his property.  The 5th Circuit rejected this conclusion.  Louisiana never cashed the checks, which became void after one year.  Thus, the FBI retained claimant’s money, and the Louisiana forfeiture pro­ceeding would not help him get it back.  Hunt v. Dept. of Justice, 2 F.3d 96 (5th Cir. 1993).

 

5th Circuit treats appeals from Rule 41(e) motions as civil appeals for timing of no­tice of appeal. (940) Defendant filed his no­tice of appeal from the district court’s denial of his Rule 41(e) motion after the 10-day limit for criminal appeals under Fed. R. App. P. 4(b), but before the 60-day limit for civil appeals under Fed. R. App. P. 4(a)(1).  The 5th Circuit found the appeal timely, holding that all appeals from orders granting or denying Rule 41(e) motions will be treated as civil appeals.  Rule 41(e) motions represent a means by which a criminal defendant can de­termine her rights in property, and are not a part of the trial and punishment process.  Hunt v. Dept. of Justice, 2 F.3d 96 (5th Cir. 1993).

 

5th Circuit upholds denial of motion for return of property where government initi­ated forfeiture ac­tion. (940) Petitioner filed a motion pursuant to Fed. R. Civ. P. 41(e) for return of a helicopter seized by the govern­ment.  The district court found that peti­tioner suffered irreparable injury from the govern­ment’s retention of the helicopter, but stated that if the government instituted forfeiture proceedings within 30 days, the motion for equitable relief would be denied.  The gov­ernment then initiated a forfeiture proceeding in the district court.  The 5th Circuit af­firmed that petitioner was not entitled to a Rule 41(e) order directing the government to return the heli­copter, despite the irreparable harm caused by the continued deprivation of the helicopter.  Actions seeking return of prop­erty are governed by equitable principles.  Ir­reparable harm is only one of several factors the court should consider when deciding whether to exercise its discretion to return the prop­erty under Rule 41.  Another factor is whether the pe­titioner has an adequate rem­edy at law.  The district court properly con­cluded that the judicial forfeiture proceedings provided petitioner with an adequate remedy to demonstrate that it was entitled to the re­turn of the helicopter.  Industrias Cardoen, Ltda v. U.S., 983 F.2d 49 (5th Cir. 1993).

 

5th Circuit affirms that there was probable cause as to crime and for­feitability of property. (940) Defendant moved before trial for the re­turn of ap­proximately $75,000 in cash seized from him after he was arrested for attempting to purchase cocaine in a “reverse sting” operation.  The district court referred the matter to a magistrate to conduct a hearing to determine probable cause as to both the commission of a narcotics offense and the forfeitabil­ity of the money.  The 5th Circuit affirmed the magis­trate’s determina­tion that there was probable cause.  Defen­dant had thousands of dollars in cash stored and packaged in exactly the same way, $20,000 of which he used to pay for the co­caine in the instant offense.  He had no le­gitimate employment and ad­mitted that he sold cocaine for years.  The $42,000 seized from a warehouse was just over the amount defendant needed to complete the next phase of the drug deal he had discussed with the under­cover agent.  U.S. v. Ivy, 973 F.2d 1184 (5th Cir. 1992), abrogation on other grounds recognized by U.S. v. Fike, 82 F.3d 1315 (5th  Cir. 1996).

 

5th Circuit refuses to intervene in admin­istrative forfeiture process to compel re­turn of non-porno­graphic materials. (940) After various pornographic materials were seized from defendant, defendant challenged the government’s failure to return certain other items of property including non-porno­graphic photographs of his children and fam­ily.  The 5th Cir­cuit refused to invoke its mandamus power to com­pel the district court to order the immediate return of those items.  The government was in the process of ad­ministratively forfeiting the non-contraband mate­rials, and the remaining property would be returned to defendant at the conclusion of that process.  An in­tervention into the ad­ministrative process would be premature. U.S. v. Schmeltzer, 960 F.2d 405 (5th Cir. 1992).

 

7th Circuit holds that appeals from Rule 41(e) or­ders should be treated as civil for purposes of tim­ing appeal. (940) The dis­trict court denied defen­dant’s motion under Fed. R. Crim. P. 41(e) for the re­turn of seized evidence.  Losing parties in criminal cases have only 10 days to appeal under Rule 4(b), while defendant took 25 days.  The 7th Cir­cuit found the appeal timely, ruling that ap­peals from orders granting or denying mo­tions under Rule 41(e) should be treated as civil appeals.  U.S. v. Taylor, 975 F.2d 402 (7th Cir. 1992).

 

7th Circuit refuses to return seized weapon to felon who failed to provide evi­dence of ownership. (940) More than a year after defendant’s conviction on armed rob­bery charges, the prosecu­tor filed a mo­tion asking the court’s permission to destroy a gun defendant had in his possession when arrested.  De­fendant filed a demand for the return of the gun, which the district court treated as a motion for return of seized evi­dence under Fed. R. Crim. P. 41(e).  The 7th Circuit affirmed the denial of the motion be­cause defendant failed to present evidence that he owned the gun.  Records showed its sale by a gun shop, and the buyer reported that he traded the gun to a person other than defen­dant.  Defendant failed to present evi­dence of his ownership of the gun be­cause he feared prosecution for being a felon in pos­session of a firearm.  A party who asserts the privilege against self-in­crimination must bear the consequence of a lack of evidence.  U.S. v. Taylor, 975 F.2d 402 (7th Cir. 1992).

 

9th Circuit says government may not restrain substitute assets before conviction. (940) It is clear that upon conviction the government may seize substitute assets if the forfeitable assets are unavailable.  But the 9th Circuit held that 18 U.S.C. §982(e) does not authorize the pretrial restraint of substitute assets.  The court thus followed In re Assets of Martin, 1 F.3d 1351 (3rd Cir. 1993) and U.S. v. Floyd, 992 F.2d 498 (5th Cir. 1993), and disagreed with In re Billman, 915 F.2d 916 (4th Cir. 1990), cert. denied, 111 S.Ct. 2258 (1991), and U.S. v. Regan, 858 F.2d 115 (2nd Cir. 1988).  Accordingly, the district court was ordered to vacate its order restraining substitute assets prior to trial.  U.S. v. Ripinsky, 20 F.3d 359 (9th Cir. 1994).

 

9th Circuit reverses corporation’s convic­tion where asset seizure left it unable to obtain coun­sel. (940) Unimex, a corpora­tion, was engaged in buying and selling for­eign currency and operating a travel agency.  An undercover investigation revealed it was also being used to launder money.  All of its assets were seized, and it was convicted of money laundering, along with one of its offi­cers.  It was not represented by counsel at trial because a corporation is not entitled to appointed counsel.  On appeal, the 9th Cir­cuit reversed, holding that the court should have conducted a pre-seizure hearing to de­termine whether some of the assets of the corporation were legitimate.  See U.S. v. Crozier, 777 F.2d 1376 (9th Cir. 1985).  The court distinguished the Supreme Court’s opinion in Caplin & Drysdale v. U.S., 491 U.S. 617 (1989), on the ground that the de­fendants in that case had a right to appointed counsel.  Here, the corporation was deprived of the ability to retain counsel without a prior hearing on whether the seizure was proper.  U.S. v. Unimex, Inc., 991 F.2d 546 (9th Cir. 1993).

 

9th Circuit says U.S. cannot be ordered to return property, absent possession or co­operation in seizure. (940) Following de­fendant’s arrest on state charges, the Beverly Hills police obtained a search warrant for his hotel room, and found a firearm and ammu­nition as well as other items.  The firearm and ammunition were turned over to the U.S. and defendant was convicted in federal court of being a felon in possession of a firearm.  After his convic­tion, defendant filed a motion pursuant to Rule 41, Fed. R. Crim. P. for re­turn of the other property seized by the Bev­erly Hills police.  Judges Schroeder, Brown­ing and Fletcher found no basis to conclude that the Beverly Hills police were acting as federal agents at the time of the search.  Ab­sent actual coop­eration between federal and state law enforcement agencies in either ob­taining the warrant or conduct­ing the search itself, the federal government cannot be or­dered to return property.  The district court’s order to return the property was vacated.  U.S. v. Huffhines, 986 F.2d 306 (9th Cir. 1993).

 

10th Circuit denies Rule 41(e) jurisdiction because ju­dicial forfeiture action provided adequate remedy. (940) After claimants’ property was seized, they filed a motion un­der Fed. R. Crim. P. 41(e) for return of the il­legally seized prop­erty.  The 10th Circuit af­firmed the district court’s refusal to exercise equitable jurisdiction, ruling that claimants had an adequate remedy at law in a judicial forfeiture action.  At the time claimant’s Rule 41(e) hearing took place, a judicial for­feiture complaint had been filed, warrants for arrest of the property had been served, and notice of service of the com­plaint had been mailed.  Thus, the claimants had an adequate rem­edy to challenge the seizure because the legality of a seizure may be tested in a judicial forfeiture proceeding.  The fact that the court had ex­tended the deadlines in the forfei­ture pro­ceeding did not alter the analysis.  Frazee v. Internal Revenue Service, 947 F.2d 448 (10th Cir. 1991).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

Recent Newsletters
in PDF format

  • January 16, 2023
  • January 2, 2023
  • December 19, 2022
  • December 5, 2022
  • November 21, 2022

Recent Indices
in PDF format

  • December 19, 2022
  • October 24, 2022
  • August 29, 2022
  • May 9, 2022
  • March 14, 2022
© James Publishing, Inc. (866) 72-JAMES (866-725-2637)
Last Updated 12/16/13