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United States v. Wright

United States District Court, D. Nevada

February 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN WRIGHT, Defendant.

          REPORT & RECOMMENDATION

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE.

         Before the court are Wright's motion for return of property (ECF No. 309) and the Government's opposition (ECF No. 310). The court held a hearing at 2:00 p.m. on February 7, 2017. For the reasons stated below, the motion for return of property should be granted in part and denied in part.

         I. Legal Standard

         “A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return.” Fed. R. Crim. P. 41(g). “The court must receive evidence on any factual issue necessary to decide the motion.” Id. “If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.” Id.

         “[W]hen the property in question is no longer needed for evidentiary purposes, either because trial is complete, the defendant has pleaded guilty, or … the government has abandoned its investigation, the burden of proof changes.” United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). “The person from whom the property is seized is presumed to have right to its return, and the government has the burden of demonstrating that it has a legitimate reason to retain the property.” Id.

         “[O]nly a minimal showing such as testimony from the owner of the [property], … will be required to shift the burden to the government.” Id. at 1369 n. 4.

         In support of his motion for return of property, Wright testified about how he came to own the subject property.

         II. Discussion

         1. $23, 513.00 in U.S. Currency

         Wright acknowledged that he had not been gainfully employed since he was released from prison in late 2013. However, Wright argues that he is the rightful owner of the $23, 513.00.

         According to Wright, on an unspecified date, he received a $3, 000 loan from Danielle Perreria. This loan was part of the fund seized during the execution of the search warrant. The rest of the money was obtained through gambling.

         Wright's family and friends would give him money so that he could support himself. He would take this money and gamble at local casinos. He reported that on 7 or 8 different occasions he won anywhere between $2, 000.00 to $3, 000.00. He also reported that on 2 or 3 occasions he lost money.

         The Government contends that Wright failed to demonstrate the money is rightfully his.[1] The court agrees. Wright's testimony about his profitable gambling excursions is not credible. Wright could not remember basic details about the money that one would expect the rightful owner to know. These include: 1) who gave him money; 2) how much he received; 3) how much money he started gambling with; and 4) how much money he eventually won. He also did not submit any corroborating evidence, such as records from the casinos' rewards programs, that would support his claim. The court is faced only with Wright's testimony, which is too vague and unsubstantiated to be credible. Wright has not shown he is the rightful owner of the money and is not entitled to the return of the $23, 513.00.

         2. Tec ...


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