Appellate Law

CA1: Why do District Courts screw up 41(g) motions?

By S. COTUS

US v. Cardona-Sandoval, No. 07-1748.  This is a return of property appeal under Fed.R.Crim.P. 41(g).  The District Courts seem to be screwing these things up quite a bit.  See United States v. Cardona-Sandoval, No. 05-1022 (1st Cir. Mar. 17, 2006) (unpub) (strange, I don't seem to remember reading this, and I read just about every court of appeals case from every circuit) for the underlying case.  Even though he is serving 135 months, he sought the return of [a] ?GPS Yellow Garmin, Blue Agenda (date book), Black Watch, Belt, Nine Thousand Colombian Pesos, and other personal articles.?  The government responded with, well, something pretty amazing, ? Pursuant to agency regulations, the defendant's personal items were destroyed on or about April 28, 2006 by the DEA because the defendant and/or his representative refused to accept responsibility for the items.?  What!  The government destroyed a GPS!  Couldn?t they at least auction that off?

The District Court didn?t seem to take the motion seriously.

The government ?does not claim that the items requested in Cardona's motion are contraband, subject to forfeiture, or needed as evidence.?  The First says that the governmnent?s blanket statement is not enough ?as to these items, the motion was decided in the absence of any evidence or even any relevant statement by the government.?  Moreover, the fact that the District Court didn?t notify the defendant of when his "other personal articles" would be destroyed didn?t establish that he actually refused such a option to obtain his personal property.

There is a survey of other circuit?s caselaw on this issue and the First Cites its unpublished decision in United States v. Uribe-Londono, 238 Fed. Appx. 628, 629-30 (1st Cir. 2007)(unpub) (our coverage here) for another example of a District Court screwup on these motions.

The First indicates that a hearing is not necessarily required.  There could be affidavits submitted.

Full post as published by Appellate Law and Practice on February 25, 2008 (boomark / email).