The opinion of the court was delivered by: Honorable Joseph E. Irenas
Presently before the Court are Motions by Defendant Juan Alberto Mejia ("Defendant") for the Return of Personal Property and for Immediate Deportation. For the reasons stated herein, the Court will deny Defendant's motions.
The Court will review the background of this case only insofar as necessary to resolve the present motions. In early 2007, Defendant was the target of surveillance by the Camden High Intensity Drug Trafficking Area ("HIDTA") Task Force. On February 16, 2007, Judge Samuel D. Natal of the Superior Court of New Jersey issued a warrant for Defendant's arrest. On February 24, 2007, Defendant was a passenger in a Ford Econoline van traveling on the New Jersey Turnpike. Acting on information supplied by HIDTA, New Jersey State Troopers stopped the van and arrested Defendant.
A search warrant was issued for the Ford van by Judge Natal. That warrant was executed by state law enforcement officers and United States Drug Enforcement Agency ("DEA") agents. The search of the van revealed a kilogram of cocaine under its passenger seat.
Defendant was originally charged with state drug offenses. The state charges were dismissed in May, 2007, when the federal government initiated its prosecution of Defendant. On August 2, 2007, Defendant pled guilty to a two-count federal information for (1) conspiracy to distribute and possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846 and (2) illegal re-entry by a previously removed alien in violation of 8 U.S.C. § 1326. This Court sentenced Defendant to a 37 month term of incarceration.
Defendant now moves under Fed. R. Crim. P. 41(g) for the return of his personal property. According to Defendant's moving papers, the following items were seized from him on or about the date of his arrest, and should now be returned to his possession: eight cellular telephones, one bracelet, one GPS navigation system, one wallet, one portable video game system, and $170 in cash. Defendant also moves for immediate deportation, citing 8 U.S.C. § 1252(h)(2)(a) as statutory authority for his request.
"Property seized by the government as part of a criminal investigation 'must be returned once criminal proceedings have concluded, unless it is contraband or subject to forfeiture.'" United States v. Albinson, 356 F.3d 278, 280 (3d Cir. 2004) (quoting United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999)). Following the conclusion of criminal proceedings, the burden is on the Government "to demonstrate that it has a legitimate reason to retain the seized property." Id. at 280 (citing Chambers, 192 F.3d at 377). Pursuant to Fed. R. Crim. P. 41(g):
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
In a case where the Government asserts it no longer has the property Defendant seeks returned, the Court engages in a two-step inquiry. Albinson, 356 F.3d at 281. First, the Court "must determine, in fact, whether the government retains possession of the property." Id. (quoting Chambers, 192 F.3d at 378). If the Court "finds that the government no longer possesses the property, [it] must determine what happened to the property." Id. (quoting Chambers, 192 F.3d at 378).
The Court is not required to "conduct an evidentiary hearing on every Rule 41(g) motion." Id. at 281. Rather, the Court should "receive evidence on any factual issue necessary" to resolve a motion arising under Rule 41(g). Id. at 282. The Court's method of determining whether the government retains possession of property must rest "on a firmer basis than the government's unsubstantiated assertions that it 'no longer possesses the property at issue.'" Id. at 282 (quoting Chambers, 192 F.3d at 377-78). A sufficient basis for factual findings can include "affidavits or documentary evidence, such as chain of custody records[.]" Id. An ...