United States District Court, D. Nevada
REPORT & RECOMMENDATION
FERENBACH UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
support of his motion for return of property, Wright
testified about how he came to own the subject property.
$23, 513.00 in U.S. Currency
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.
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.
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.
Government contends that Wright failed to demonstrate the
money is rightfully his. 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.