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UNITED STATES v. LAMPLUGH

March 4, 1997

UNITED STATES OF AMERICA,
v.
HARRY C. LAMPLUGH, THERESA LAMPLUGH, and JOHN LAMPLUGH, Defendants.



The opinion of the court was delivered by: VANASKIE

 The defendants, Harry C. Lamplugh, Theresa L. Lamplugh and John Lamplugh, are currently involved in a criminal prosecution for alleged violations of various firearm and weapon possession and distribution laws. The defendants are family members. Harry C. Lamplugh and Theresa L. Lamplugh are husband and wife, while John Lamplugh is their son. The defendants made a motion under Federal Rule of Criminal Procedure 41(e) for the return of property seized by the government which is not evidence of a charged offense or the fruit or instrumentality of a charged offense. (Misc. Dkt. Entry 16.) As to the currency, the government has failed to justify its continued retention of defendants' money. In this regard, any evidentiary value of the currency itself may be preserved by photographing it, recording the serial numbers, and having defendants or their agents sign a receipt acknowledging return of the cash. *fn1" As to the records seized nearly three years ago, the government will be required to show cause why it should not be required to either return the originals or provide defendants with photocopies of the records at the government's expense. *fn2"

 I. BACKGROUND

 After an initial investigation, the government applied to United States Magistrate Judge Thomas M. Blewitt for search warrants for two premises allegedly owned by Harry Lamplugh. On May 25, 1994, Alcohol, Tobacco & Firearms (ATF) agents and Internal Revenue Service (IRS) agents executed search warrants for the premises of the defendants. As a result of these searches, sixty-one firearms were recovered, along with business records and a substantial amount of currency.

 On September 14, 1994, only a few months after the search, the defendants made a motion for return of their property. (Misc. Dkt. Entry 7.) On August 4, 1995, I denied the defendants' request for the return of their property because the government had obtained an indictment against the defendants. (Misc. Dkt. Entry 13.) On May 20, 1996, the defendants renewed their motion for the return of their property. (Misc. Dkt. Entry 16.) At a status conference held on February 5, 1997, I inquired into the reasonableness of allowing the government to continue to possess the defendants' financial records and currency given that such records and currency were not related to the charges for firearms-related violations. The government indicated that it intended to bring tax evasion charges against Harry Lamplugh and Theresa Lamplugh which would demonstrate the evidentiary value of the defendants' financial records and currency. As of the date of this decision, no tax-related charges have been brought against any of the defendants. *fn3"

 II. DISCUSSION

 The defendants seek return of their property pursuant to Federal Rule of Criminal Procedure 41(e). In 1989, Rule 41(e) was amended to allow "any person . . . aggrieved by the deprivation of property" to seek to require the government to return the property. See Virgin Islands v. Edwards, 903 F.2d 267, 273 (3d Cir. 1990). In addressing the standard to be applied in determining whether to order a return of property, the Third Circuit has stated:

 
The rule in its earlier version did not contain any suggestion of the standard to govern the determination whether the property should be returned to the movant, and the amendment did not speak to that issue. The Advisory Committee Notes to the 1989 amendment suggest merely that "reasonableness under all circumstances must be the test when a person seeks to obtain the return of property," a standard comparable to that which we used in [United States v. Premises Known as 608 Taylor Ave., 584 F.2d 1297 (3d Cir. 1978)].

 Id. at 273 (citations omitted). Given that the Third Circuit has held that the Rule 41(e) standard and the 608 Taylor Avenue standard are comparable, a consideration of 608 Taylor Avenue is appropriate.

 In 608 Taylor Avenue, the government searched the defendant's premises for gambling contraband. In the course of the search, the government seized approximately $ 12,000 in currency. Prior to any criminal indictment or forfeiture proceedings being brought against the defendant, he moved for the return of the currency. 608 Taylor Ave., 584 F.2d at 1299. The Third Circuit recognized that the government has the right to seize evidence, but cautioned that the government could not "effect a de facto forfeiture by retaining the property seized indefinitely." Id. at 1302. The Third Circuit held:

 
the district court under its powers to supervise law enforcement officials and the United States Attorney within its jurisdiction may require the return of property held solely as evidence if the government has unreasonably delayed in bringing prosecution. In making its determination, the court should carefully balance the citizen's interest in the use of his property against the wide-ranging governmental interests in law enforcement.

 Id. Further, in determining whether a delay was reasonable, the Third Circuit noted that the need to retain the currency was not reasonable if the government's interest could be satisfied through alternative means. Id at 1304; see also 1989 Committee Note Fed. R. Crim. P. 41(e) ("In many instances documents and records that are relevant to ongoing or contemplated criminal investigations and prosecutions may be returned to their owner as long as the government preserves a copy for future use.") *fn4"

 Although 608 Taylor Avenue was decided prior to the 1989 amendment of Rule 41(e), the reasonableness standard appears identical. Simply put, the Third Circuit and Rule 41(e) require that a district court balance the interests of the parties to determine the reasonableness of the government's continued retention of seized property. See also United States v. Martinson, 809 F.2d 1364, 1370 (9th Cir. 1987) (finding that the government must return property once its need for it has ended); United States v. Frank, 763 F.2d 551, 552 (3d Cir. 1985) (stating that the IRS could not keep movant's money without a need or justification); United States v. Wright, 197 U.S. App. D.C. 411, 610 F.2d 930, 939 (D.C. Cir. 1979) (holding that $ 2,100 in currency seized at drug raid had to be returned unless it was stolen or contraband); United States v. Palmer, 565 F.2d 1063, 1064 (9th Cir. 1977) (finding that $ 763 had to be returned to movant after his conviction for bank robbery because the government could not demonstrate a need for the money); United States v. Wilson, 176 U.S. App. D.C. 321, 540 F.2d 1100, 1104 (D.C. Cir. 1976) (requiring the government to return $ 2,725 to the movant even through the government contended that the money was subject to forfeiture); Shea v. Gabriel, 520 F.2d 879, 882 (1st Cir. 1975) (noting that a court should balance the government's need against the movant's right of possession); United States v. Carter, 859 F. Supp. 202, 205 (E.D. Va. 1994) (holding that even with a continuing investigation, the government cannot continue to hold a person's property for an unreasonable time without taking some action); Matter of Search Warrant for Premises Known as Encore House, 100 F.R.D. 700, 701 (S.D.N.Y. 1983) (finding that government had to return $ 1 million in checks seized in mail fraud investigation as the government had unreasonably held the checks for a four month period without bringing an indictment).

 Admittedly, some courts have held that a motion for the return of property prior to an indictment requires the movant to demonstrate that (1) there is no adequate remedy at law, and (2) the movant will suffer irreparable harm if the property is not returned. Black Hills Inst. of Geological Research v. Department of Justice, 967 F.2d 1237, 1239 (8th Cir. 1992); Floyd v. United States, 860 F.2d 999, 1003 (10th Cir. 1988); Mr. Lucky Messenger Serv., Inc. v. United States, 587 F.2d 15, 16 (7th Cir. 1978); Matter of 636 South 66th Terrace, 835 F. Supp. 1304, 1306 (D. Kan. 1993); Tyagi v. DiStazu, 809 F. Supp. 10, 13 (M.D. Pa. 1992). Although Tyagi is a decision of this court, I find it unpersuasive. In Tyagi, Judge McClure never considered the Third Circuit's holding in 608 Taylor Avenue or its adoption in Edwards. Even though 608 Taylor Avenue involved a pre-indictment claim for the return of property, the Third Circuit never considered the application of equitable injunctive principles. Further, there is nothing in the 1989 Committee Notes to Rule 41(e) which would suggest that a court must find that (1) there is no adequate remedy at law, and (2) that the movant would be irreparably harmed if the ...


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