Rule 41(g) Motion for Return of Property
Federal Rule of Criminal Procedure 41(g) provides that “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.” If your property is not promptly returned after a seizure, forfeiture attorney Sebastian Rucci can file a Rule 41(g) for Return of Property.
Rule 41(g) motions are treated as a petition to the district court to exercise its civil equitable jurisdiction. Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993). Courts have adopted a four-factor test (herein called the “Richey factors”) seeking to balance: 1. whether the government displayed a callous disregard for the constitutional rights of the claimant; 2. whether the claimant has an individual interest in and need for the property that it wants to be returned; 3. whether the claimant would be irreparably injured by denying the return of the property; and 4. whether the claimant has an adequate remedy at law for the redress of his grievance. See Ramsden, 2 F.3d at 325.
Rule 41(g) motions can also be filed in the following circumstances: 1. if the government violates 18 U.S.C. § 983(a)(1)(A)(i) by choosing an administrative or nonjudicial forfeiture, but not sending a written notice of seizure to the interested parties within 60 days of the taking; 2. if the government does not return the property promptly after failing to take action within ninety (90) days after you filed a verified claim for the property based on the written notice of seizure; or 3. the agency seized property for forfeiture that went missing or was stolen by the agent and was therefore not part of the complaint for forfeiture filed by the government.
If a forfeiture complaint has been filed, a Rule 41(g) motion might be denied if the court determines that the proper forum for addressing the return of the property is in the civil forfeiture proceeding, rather than a Rule 41(g) motion. If the motion is granted the court can consider a Motion for Attorney Fees and Costs which would force the government to pay your attorney fees and costs.
Civil forfeitures laws permit law enforcement to seize property without a conviction and keep what they seize, this has warped law enforcement priorities and decimated public trust in law enforcement.
Attorney for Rule 41(g) Motions for Return of Property
Sebastian Rucci
Forfeiture attorney Sebastian Rucci can help you after a civil asset forfeiture action by federal law enforcement officers. If the property is not returned in compliance with the law, he can file a Motion for the Return of Property pursuant to Rule 41(g) and the Motion for Attorney Fees, Costs, and Interest pursuant to 28 U.S.C. § 2465(b)(1).
Forfeiture attorney Sebastian Rucci can bring this action against the agency that seized your property including the FBI, DEA, ATF, or Department of Homeland Security after seizures by agents with Customs and Border Protection (CBP) or a Homeland Security Investigations Task Force Officer. Many of these cases involve the seizure of cash or currency at airports.
Forfeiture attorney Sebastian Rucci also represents clients after the government files a Complaint for Forfeiture that alleged the funds were the proceeds of drug trafficking, money laundering, unlicensed money transmitting, and other unspecified unlawful activity. In that situation, he can help file a Verified Claim pursuant to 21 U.S.C. § 853(n) and Fed. R. Crim. P. 32.2(c), in order to identify your interest in the seized property.
Responding to the Notice of Seizure
Immediately after the federal agents seize money, currency, or other property, you can file a petition to trigger early court intervention, even before you receive a Notice of Seizure. Within sixty days of the seizure, the government must choose either administrative or civil judicial forfeiture. If the government chooses an administrative or nonjudicial forfeiture but does not send a written notice to the interested parties, then the government violates 18 U.S.C. § 983(a)(1)(A)(i) and must return the seized property. In fact, 18 U.S.C. § 983(a)(1)(A)(i) applies “in any nonjudicial civil forfeiture proceeding ….”
Any challenge to an administrative forfeiture must be filed within thirty-five days after the date the personal notice is mailed, or if personal notice is not received, then no later than thirty days after the date of final publication of notice of seizure. Id. at 220 (citing 18 U.S.C. § 983(a)(2)(B)).
Failure to timely file a claim results in the property being administratively forfeited. See 19 U.S.C. § 160. This means that after you receive the Notice of Seizure, the notice will set a deadline to file a claim for the property. You must timely file a claim that is received on or before the deadline. If no action is taken by the federal agency within ninety (90) days after you make a claim for the property, then attorney Sebastian Rucci can file an action pursuant to Fed. R. Crim. Proc. 41(g) for the return of the money. Attorney Sebastian Rucci will also seek an order from the court that requires the federal government to pay attorney fees and costs.
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