has a duty to bring such forfeiture proceedings within a reasonable time. Considering that the government has been in possession of the defendants' currency for nearly three years, it appears that allowing the government to continue its possession would be unreasonable.
Third, the government has failed to demonstrate any continuing interest in the currency that cannot be safeguarded by alternative means. There is no tax lien which would authorize the government to continue its possession of the defendants' currency. Although the government contends that the currency will be evidence in its tax evasion case, it is difficult to understand how the government's interest would not be equally served by photographing the evidence and recording serial numbers. The important fact is that the government contends it seized a substantial amount of cash when it searched defendants' premises. Presumably, the government will argue that the existence of a large amount of currency will show that defendants had income which they failed to report. The existence of cash can be documented by photographing it and recording the serial numbers. Moreover, defendants could be required to acknowledge return of the cash by executing a receipt or having an agent, such as their lawyer, execute a receipt. The fact of discovery of the cash at defendants' residence would thus be memorialized in an admissible form.
As to the financial records themselves, original documents are obviously preferable from an evidentiary standpoint. But the owners of the records should not be deprived of the content of these documents unreasonably. In this case, the government has had these records for almost three years. Under these circumstances, the government should be required to show cause why it should not be required to return the originals or provide photocopies of the records to the defendants at the government's expense.
The government has seized and maintained sole possession of defendants' currency and financial records for nearly three years. Throughout this lengthy possession, the government has asserted that the currency and financial records were necessary for the government's investigation into potential acts of tax evasion. Recently, the government indicated that it is finally ready to submit evidence of the defendants' alleged tax evasion before a grand jury.
In any event, the Third Circuit and the dictates of the Committee Notes to Rule 41(e) require that a court apply a reasonableness standard to determine whether the government should be ordered to return any seized property. In this case, the government has retained the defendants' property, including financial records and over ten thousand dollars in currency, without filing any charges or forfeiture proceedings in relation to this property. The government has not demonstrated an evidentiary interest in the currency which could not be preserved in an alternate way. The government could easily photograph the currency and record its serial numbers. Further, the government could require the defendants, or an agent of the defendants, to sign a receipt when the currency is released. Because there is no government interest which would allow the government to continue in possession of the currency, the government will be ordered to return the seized currency to the defendants within ten (10) days of this Order. As to the financial documents, it is not clear that the government has reasonably retained possession of these seized documents for nearly three years. Therefore, the government will be ordered to show cause as to why the government should not be ordered to either return the originals or provide photocopies of the documents to the defendants at the government's expense. An appropriate Order is attached.
Thomas I. Vanaskie
United States District Judge
March 4, 1997
AND NOW, therefore, in accordance with the attached Memorandum, it is hereby ORDERED THAT:
1) Defendants' motion for return of property (Misc. Dkt. Entry 16) is GRANTED IN PART AND DENIED IN PART. The government shall, within ten (10) days from the date of this Order, return to defendants all cash seized in two searches of the defendants' premises conducted on May 25, 1994.
1) The government is directed to show cause at a hearing as to why the government should not be ordered to either return the original documents seized in two searches of the defendants' premises conducted on May 25, 1994 or provide photocopies of those documents to the defendants at the government's expense.
2) The show cause hearing shall be held at the conclusion of the suppression hearing in this matter.
At the hearing, defendants will be afforded an opportunity to present evidence in support of their contention that additional cash and other items not inventoried by the government were seized during the two searches.
3) In all other respects, defendants' motion for return of property (Misc. Dkt. Entry 16) is DENIED.
Thomas I. Vanaskie
United States District Judge