The opinion of the court was delivered by: Block, District Judge.
By papers submitted on December 22, 2002, defendant Richard Bondi ("Bondi") moves for "Reargument and Renewal" of his motion pursuant to former Fed.R.Crim.P. 41(e) for the return of property, which the Court denied by oral decision in open court on December 20, 2002, after conducting an evidentiary hearing on October 24, 2002. Bondi Letter, December 22, 2002. Bondi's motion sought the return of $30,000 seized during a search of his home. The Court denied the motion because it concluded that Bondi had failed to show the funds were not contraband. Bondi moves for reconsideration because he claims that at the evidentiary hearing the Court set the burden of proof on the government, and then, on December 20, 2002, ruled that the burden of proof was on him. Bondi claims that he "relied upon the articulated ruling of the Court with regard to the applicable burden of proof" to his detriment. Id. at 3.
The Court writes to explain and reinforce its ruling on the burden of proof and to discuss the evolution of former Fed.R.Crim.P. 41(e), which was amended effective December 1, 2002 as current Fed.R.Crim.P. 41(g) and (h). Specifically, the Court addresses the allocation of the burden of proof when a return of property motion is made while a criminal proceeding is pending.
In its decision denying Bondi's motion, the Court made the following factual findings: On October 28, 2001, Bondi received a personal injury settlement in the amount of $60,790.40. The next day, Bondi opened a bank account at a Graniteville branch of Staten Island Bank and Trust. Given a few day's notice, the bank would have been willing to cash Bondi's check. Alternatively, Bondi could have withdrawn the entire amount from a nearby branch. On November 1, Bondi withdrew $12,000 from the account from the Graniteville branch. Over the course of the next several days, Bondi withdrew $6,000 a day, leaving $790.40.
Approximately three months later, on January 22, 2002, the Criminal Court of the City of New York issued a warrant authorizing a search of Bondi's residence for, inter alia, gambling records, cash, and other proceeds of illegal bookmaking. Law enforcement officers executing the warrant found $30,000 bundled in elastic bands and stored in a garment bag in a closet in the master bedroom. $28,700.00 of this amount was in $100 bills. Special Investigator Joel Poccia ("Agent Poccia") stated at the evidentiary hearing that, in his experience, gambling proceeds were often packed in large bills and bundled in even dollar amounts.
Three weeks later, on February 11, 2002, Agent Poccia overheard a conversation in which Bondi and other defendants appeared to be speaking about the money. During the exchange, defendant Sonny Ciccone stated "Let's see if they're gonna tie this money into the machines," to which Bondi replied, "I got the best explanation to prove where that money came from." Bondi did not produce any receipts showing how the settlement money had been spent.
In denying Bondi's motion on December 20, 2002, the Court stated that its research had revealed that under former Rule 41(e), applicable at the time of the hearing, the burden of proof was on the movant when the motion was made before trial, and that Bondi had failed to satisfy that burden. Bondi objected to the ruling, asserting that the Court had previously stated that the burden of proof was on the government. The Court noted Bondi's objection and stated that, even if the burden had been on the government, Bondi's motion would fail.
At the October 24, 2002 evidentiary hearing, the Court stated:
THE COURT: Now, my understanding of the way that
these things should proceed [is] as follows.
Certainly, a motion can be made by the defendant for
the return of property that the government has in its
possession. The motion is governed by Rule 41(e) of
the Federal Rules of Criminal Procedure. I take it
that you folks have looked at that.
[My] sense is that this is to be treated as a motion
to suppress under Rule 12. That is specifically
referenced in . . . Rule 41(e). That places the
burden on the government to support the retention of
Tr. of Evidentiary Hearing, Oct. 24, 2002, at 3.
Bondi has misinterpreted the Court's reference to the burden of proof. The Court's quoted statement was made with reference to that part of former Rule 41(e) incorporating Fed.R.Crim.P. 12; the Court was not referring to the burden of proof under Rule 41(e). Indeed, the Court made clear at the conclusion of the hearing that it had not yet resolved the question of which party bore the burden on a Rule 41(e) motion and gave the parties time to submit papers on the issue:
I will reserve on this. I want to give you two
gentlemen an opportunity to give the law to me on the
relative burdens on a 41(e) motion. . . . A week from
this weekend. . . . Address the relative burdens in
the context ...