| | FEAR's Brief Bank II: indexed by issue |
| | **************************************************************************************** |
| | Release of property | [ | 336 | ] |
| | PETITION FOR RELEASE OF SEIZED PROPERTY AND MEMORANDUM OF POINTS |
| | AND AUTHORITIES |
| | Memorandum of Points and Authorities for immediate release of seized property pursuant to 18 U.S.C. §983(f): |
| | possesory interest in seized vehicle; ties to community; claimant's substantial hardship outweighs |
| | government's interest in preserving availability. |
| | by | Reich, Frederick M. |
| | U.S. | v. | ITS TOOLS AND APPURTENANCES | ( | 2003 | ) |
| | browser view: | available | BrowserView | filed: |
| | Word Perfect | available | WordPerfect |
| | MS_Word version: | available | MSWord |
| | RTF version: | RichTextFormat | [ | release001 | ] |
| | PDF version: | [ | 247 | ] |
| | . |
| | POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RETURN OF PROPERTY |
| | PURSUANT TO CRIMINAL RULE 41(g) (OR CIVIL COMPLAINT IN THE NATURE OF |
| | MOTION FOR RETURN OF PROPERTY) |
| | Criminal Rule 41(g) provides a remedy for persons aggrieved by the illegal seizure of property by law |
| | enforcement agents, or the illegal detention of the property. Where there is no |
| | related criminal case pending, as here, the motion for return of property is treated as a civil equitable action. … |
| | Because it is an equitable action, the claimant must show the absence of adequate remedies at law. In cases |
| | where the property was seized for forfeiture, as here, the pendency of civil forfeiture proceedings would deprive |
| | the court of jurisdiction to hear a Rule 41(g) motion. Here, however, administrative forfeiture proceedings were |
| | commenced by the DEA ... It has now been more than nine weeks after its deadline ran for filing a forfeiture |
| | complaint, yet the United States has not returned the money to the Claimants. Yesterday DEA official |
| | Lawrence D’Orazio emailed counsel stating the United States intends to turn the property over to Tehama |
| | County again to allow it to pursue forfeiture under state law. |
| | ... |
| | The United States Supreme Court has held that Rule 41(g) is a proper remedy for asserting |
| | ones’ rights to prompt return of property that has been seized illegally and held an unreasonable time without |
| | the institution of forfeiture proceedings. See United States v. $8,850, 461 U.S. 555, 569 (1983). The Court |
| | applied the four factor speedy trial balancing test of Barker v. Wingo, 407 U.S. 514 (1972) for determining |
| | when delay in instituting a forfeiture case violates due process. Id. 461 U.S. at 564. Those factors are: length of |
| | delay, reason for the delay, claimant’s assertion of the right, and prejudice. |
| | by | Grantland, Brenda |
| | U.S. | v. | APPROXIMATELY $20,725.00 IN U.S. CURRENCY | E.D.Cal. | 2:11-MC- | ( | 2011 | ) |
| | browser view: | BrowserView | filed: |
| | Word Perfect | available | WordPerfect |
| | MS_Word version: | MSWord |
| | RTF version: | RichTextFormat | [ | 41g_Memo | ] |
| | PDF version: | available | [ | 638 | ] |
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| | Tuesday, August 09, 2011 | Page 1 of 3 |