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United States v. Smith

United States District Court, D. Nevada

April 6, 2018

United States of America, Plaintiff
v.
Phillip Smith, Defendant

          ORDER GRANTING IN PART MOTION FOR RETURN OF PROPERTY [ECF NO. 265]

          JENNIFER A. DORSEY JUDGE.

         Defendant Phillip Smith was an aspiring music artist whose endeavors were interrupted when he pled guilty to one count of conspiracy to commit armed robbery and seven counts of robbery in connection with many robberies, including several at video-game retailer GameStop.[1]He was sentenced to serve 221 months in prison with 3 years of supervised release to follow, and he was ordered to pay $48, 018.12 in restitution to his victims.[2]

         Eight months after judgment was entered against him, Smith wanted to have the property that was seized by law enforcement during their investigation returned to him. But he wasn't sure what exactly had been collected as evidence, so he moved for the production of an item manifest.[3] The United States did not oppose the request-although it pointed out Smith had abandoned his right to the seized property in the plea agreement-and provided two overlapping lists of items that had been seized during the investigation.[4]

         Smith now moves for the return of specific items on those lists. One group of requested items, which Smith characterizes as the “intellectual property” group contains: (1) a Panasonic Luminex digital camera; (2) a Sprint Touch Phone; (3) three iPods; (4) a 2 gigabyte thumb drive; (5) some CD-ROMs; (6) a Toshiba laptop computer; (7) some notebooks; and (8) “misc. property.”[5] He claims that these items contain albums, lyrics, promotional pictures, music videos, and other media related to his musical endeavors and that they are priceless.

         Another group characterized as “personal property” contains: (1) one envelope with $113 cash; (2) three keys on a key ring; (3) a Samsung charger; (4) an envelope with $4.80 cash; (5) one Samsung-Sprint phone; (6) two “UMC bills”; (7) 13 videogames for the XBOX 360 or PlayStation 2 gaming consoles; (8) two unspecified “games”; (9) “misc. papers”; (10) “misc. bus. cards”; (11) two PlayStation 2 gaming controllers; and (12) two PlayStation 2 gaming consoles.

         The United States responds that it “does not have possession of each and every item included in Defendant's motion.”[6] But it addresses a myriad of items that it does have. The government has no objection to returning the keys on the key ring, Samsung charger, Samsung Sprint phone, CD-ROMs, Toshiba laptop computer, notebooks, and “misc. property.”[7] But it objects to the return “of any and all game consoles[, ] game console controllers, games, and” cash because they are all likely contraband stolen from the GameStop stores.[8] In reply, Smith abandons his desire for the government's objected-to items, accepts the unobjected-to items, and renews his request for the intellectual-property items.[9]

         Accordingly, good cause appearing IT IS HEREBY ORDERED that Smith's motion for the return of his personal property [ECF No. 267] is GRANTED in part and DENIED in part. The government must mail the following items to Smith's mother, Mrs. Cremelia Scott, at 4121 Karma Drive, N. Las Vegas, NV 89032:

• 3 keys on a key ring;
• Samsung charger;
• Samsung-Sprint phone;
• CD-ROMs;
• Toshiba laptop computer;
• Notebooks;
• “Misc. property” as identified in the item manifests in ...

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