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United States of America v. Michael F. Durante

July 11, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
MICHAEL F. DURANTE, DEFENDANT.



The opinion of the court was delivered by: Chesler, District Judge

OPINION & ORDER

This matter comes before the Court on the motion for return of cash by Defendant Michael Durante ("Durante"). In this motion, Defendant seeks three kinds of relief: 1) the return of cash taken from Defendant's safe; 2) dismissal of the criminal forfeiture count; and 3) exclusion of all evidence of this cash at trial. For the reasons stated below, the motion will be denied.

Very briefly, the cash at issue is $291,690, taken by the Government from a safe at Defendant's home during a warrantless search on March 24, 2011. On February 7, 2012, this Court issued an Opinion and Order in which it denied, inter alia, Defendant's motion to suppress the evidence obtained from the search of the safe.

I. The return of the cash

Defendant seeks return of the cash pursuant to Federal Rule of Criminal Procedure 41(g), which states:

Motion to Return Property. 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.

Defendant concedes that this Court's Order of May 2, 2011 requires this motion to have been made within 30 days, but contends that there is good cause for the delay in filing this motion, because Defendant did not learn of the alleged spoliation of evidence*fn1 until February 29, 2012. The Court does not understand the reasoning here: what does the alleged spoliation of evidence have to do with Defendants Rule 41(g) motion? Defendant has not even suggested a rational connection.

Defendant does not offer a legal theory to support his entitlement to the return of the cash at this point in the case. Ordinarily, the inclusion of the forfeiture allegation in the indictment is sufficient to bar the return of money unless and until a trier of fact determines whether the funds are subject to forfeiture. The Superceding Indictment includes a forfeiture allegation which states: "The property to be forfeited includes, but is not limited to, $291,690 in United States currency seized from the residence of Michael Durante." Given this forfeiture allegation, the Government will bear the burden of proof of its right to the cash during the forfeiture phase of the trial. See Fed. R. Crim. P. 32.2.

As quoted above, Rule 41(g) states that the Court must receive the evidence on any factual issue necessary to decide the motion. This will occur at trial. Defendant has shown no good reason for this Court to make this determination before trial.

The Third Circuit has held that "[a] District Court has jurisdiction to entertain a motion for return of property made after the termination of criminal proceedings against the defendant." United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999). The question at issue here is under what circumstances may the Court entertain a motion for return of property subject to a criminal forfeiture allegation prior to trial. Defendant offers no authority to support his belief that a Court may do so. Defendant points to Rule 41(g) and two cases, but these do not give Defendant the right to seek return of the cash subject to a criminal forfeiture allegation prior to trial. Defendant first cites United States v. Van Cauwenberghe, 827 F.2d 424, 433 (9th Cir. 1987), but that case did not involve assets subject to a forfeiture allegation. Defendant then cites United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999), but that case works against Defendant, since the Third Circuit held: "such property must be returned once criminal proceedings have concluded, unless it is contraband or subject to forfeiture." Since criminal proceedings in this case have not concluded, and the property is subject to forfeiture, Chambers does not support returning the cash to Defendant prior to trial. In Chambers, the Third Circuit considered the possibility of a Defendant seeking the return of property pursuant to Rule 41(g) while a criminal prosecution is pending, but held that such a motion "is properly denied if the defendant is not entitled to lawful possession of the seized property, the property is contraband or subject to forfeiture or the government's need for the property as evidence continues." Id. at 377 (quotation omitted). Because the cash is subject to forfeiture, pursuant to Chambers, the motion is properly denied.

Furthermore, the question of whether Defendant is entitled to the return of any of the seized cash hinges on key determinations to be made at trial. Subsection (d) of the criminal forfeiture statute, 21 U.S.C. § 853, states:

Rebuttable presumption. There is a rebuttable presumption at trial that any property of a person convicted of a felony under this title or title III is subject to forfeiture under this section if the United States establishes by a preponderance of the evidence that--

(1) such property was acquired by such person during the period of the violation of this title or title III or within a ...


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