The opinion of the court was delivered by: Block, District Judge.
Rule 41(e) states, in part:
A person aggrieved by an unlawful search and seizure
or by the deprivation of property may move the
district court for the district in which the property
was seized for the return of the property on the
ground that such person is entitled to lawful
possession of the property. The court shall receive
evidence on any issue of fact necessary to the
decision of the motion. If the motion is granted, the
property shall be returned to the movant. . . .
Fed.R.Crim.Pro. 41(e); see Mora v. United States, 955 F.2d 156,
158 (2d Cir. 1992) ("[I]n making a determination, a trial court
must rely on the evidence before it."); United States v. Dean,
100 F.3d 19, 20 (5th Cir. 1996) (deciding Rule 41(e) motion
without hearing as "[e]videntiary hearings are not granted as a
matter of course; such a hearing is required only if any disputed
material facts are necessary to the decision of the motion").
Although Rule 41(e) does not set forth the applicable burden of
proof, most courts have held that the government has the burden
to prove by a preponderance of the evidence that the petitioner
is not entitled to return of the property. See Ruiz v. United
States, 90-C-186, 1990 WL 203118, at *1 (E.D.N.Y. Nov.23, 1990);
see Gov't of the Virgin Islands v. Edwards, 903 F.2d 267, 274
(3d Cir. 1990); United States v. Martinson, 809 F.2d 1364, 1369
(9th Cir. 1987); United States v. Moloney, 985 F. Supp. 358, 361
(W.D.N.Y. 1997). Of course, a person who has stolen money or
goods cannot have lawful possession of that property. See
Moloney, 985 F. Supp. at 363-64 (collecting Rule 41(e) cases
concerning stolen property).
In making its determination that the government has met its
burden of proof, the court may rely on the record developed in
prior criminal proceedings against the claimant. See Dean, 100
F.3d at 20 (in ruling on Rule 41(e) motion, "[t]he judge was
entitled to view the jury's verdict of guilty as an implicit
acceptance of the government's theory that all of the money
constituted proceeds from the bank robbery"); United States v.
Maez, 915 F.2d 1466, 1469 (10th Cir. 1990) (court relied on
evidence adduced at claimant's first trial to determine that
money seized at his arrest was proceeds of bank robbery);
Moloney, 985 F. Supp. at 361-62 (W.D.N.Y. 1997) (after
claimant's conviction, government carried its burden of showing
that currency was stolen from bank and claimant was not entitled
to its return) (collecting cases); Ruiz, 1990 WL 203118, at *1
In March and April 1995, Green was tried by this Court and
convicted by a jury on four counts of violating 18 U.S.C. § 1951,
including the robbery and beating of Jung Bae Choi ("Choi"). At
trial, Choi testified that he was the owner of Choi Deli Grocery,
and that on August 30, 1993, he was robbed and beaten while
taking a deposit of approximately $4,000 in paper currency, $300
in food stamps, and $100 in coins to Citibank. FBI Agent Taylor
testified that on September 3, 1993, four days after the robbery,
Green was arrested by the FBI with the help of New York City
Police at Green's girlfriend's apartment in Brooklyn, New York.
Following the arrest, the FBI and police searched the apartment
with the written permission of Ellen Williams, the mother of
Green's girlfriend. The FBI seized several items, including $300
dollars in United States currency,
and food stamps with Choi Deli Grocery cancellation markings,
which were found together in a brown paper sack on the floor of a
bedroom closet. During the trial, Agent Taylor identified the
food stamps and $300 cash as items seized after Green's arrest;
they were then admitted into evidence.
Additionally, the government has produced a copy of the
inventory list of items seized at the time of the arrest. The
list states: "Misc yellow jewelry food stamps and $300 U.S.
currency found in Brown paper Bag on floor of Rear Bdroom closet
by Det Pat EDNIE." Government's Exhibit B.
In the present case, the Court has sufficient evidence to
decide Green's motion, and no hearing is necessary. The United
States has conceded its willingness to return the jewelry.
Accordingly, the United States is ordered to deliver the chain
and medallion forthwith to Lance Green, c/o Mrs. Pamela Wheeler,
429 Dumant Avenue, Apartment 4A, Brooklyn, New York 11212.
As for the $3500, based on the government's documentary
evidence, the Court determines that only $300, and not $3500, was
seized following Green's arrest. Green's conviction is sufficient
proof that he was guilty of robbing Choi. The Court concludes
that it is entitled to rely on this conviction as an implicit
determination that the $300 was the partial proceeds of Green's
robbery of Choi. Therefore, it concludes that because Green only
possessed the money because he had stolen it, he ...