The opinion of the court was delivered by: Judge Nora Barry Fischer
MEMORANDUM OPINION AND ORDER
On August 3, 2010, Defendant pled guilty to one count of Wire Fraud Conspiracy pursuant to 18 U.S.C. § 1349, at Count One of the Indictment filed at Criminal No. 09-200. (Docket No. 31). The Court initially scheduled sentencing to take place on December 14, 2010 at 11:00 a.m. (Docket No. 38).
Prior to sentencing, Defendant offered voluminous evidence in mitigation of his forthcoming sentence. (Docket No. 51). In a separate investigation of Defendant, the Government seized property (the "Property") from 100 Mulberry Lane in Pittsburgh, Pennsylvania, during the week of December 6, 2010 pursuant to a grand jury subpoena. (Docket No. 54). On December 8, 2010, the Government filed a motion to continue Defendant's sentencing hearing, asserting that it had recently uncovered evidence indicating that Defendant was involved in a scheme to defraud individuals of substantial funds and that such evidence is highly relevant to the upcoming sentencing hearing. (Docket No. 52 at 1). Defendant objected to the Government's motion arguing reliance on the Government's previous representations that the instant action would "close the book" on its investigation. (Docket No. 53). The Court granted the Government's motion and re-scheduled sentencing to take place on February 25, 2011 at 9:00 a.m. (Docket No. 55).
In light of email correspondence between counsel and Defendant's subsequent Motion for Discovery (Docket No. 58), the Court held a status conference on December 21, 2010. (Docket No. 59). Upon consideration of Defendant's Motion for Discovery (Docket No. 58) and having heard oral argument thereon, the Court ordered the Government to provide Defendant the grand jury subpoena it obtained to seize the Property, and all documents that the Government deemed discoverable, including agent statements or reports that were made during the execution of said seizure. (Docket No. 59).
Next, Defendant filed a Motion to Suppress Evidence and Return Property arguing that Defendant is entitled to suppression of the Property and is entitled to have the Property returned to him because the Government's seizure of the Property was unlawful. (Docket No. 67). Specifically, Defendant contends that the seizure was unlawful because he had a reasonable expectation of privacy in the Property, he did not abandon the Property and the Government did not seize the Property pursuant to a warrant.*fn1 (Docket No. 67 at 4-7).
In turn, the Government filed its Response to Defendant's Motion to Suppress Evidence and Return Property asserting that Defendant did not have an expectation of privacy in the Property. (Docket No. 73 at 6). To that end, the Government asserts that Defendant abandoned the Property by refusing to remove it from the storage area despite numerous requests to do so and had no right to exclude others from the storage area because he had no independent access to the premises. (Docket No. 73 at 6). In addition, the Government stated that it "does not intend to use any of the evidence obtained from the issuance of the subpoena at the sentencing hearing." (Docket No. 73 at 8).
The Court held a hearing to address Defendant's Motion to Suppress Evidence and Return Property (Docket No. 67) on January 26, 2011. The parties agreed at the outset of the hearing that Defendant's Motion to Suppress Evidence is no longer at issue because the Government does not intend to use any of the seized evidence at the sentencing hearing. (Docket No. 79 at 3).*fn2 Therefore, the Court denied Defendant's Motion to Suppress Evidence, as moot. (Docket No. 75). Accordingly, the only issue remaining before the Court is Defendant's Motion to Return Property. (Docket No. ).
At the outset, the Court notes that Defendant proffered two emails
(D-9, D-10) at said hearing in support of his Motion to Return
Property. Counsel for the government objected to the admission of said
proffered exhibits arguing that defense counsel has not properly
authenticated them. Defense counsel raised a parallel objection to the
Government's email exhibits (Docket
Nos. 73-1, 73-2, 73-3, 73-4, 73-5, 73-6) attached to its Response to
Defendant's Motion to Suppress Evidence and Return Property. (Docket
No. 73). In light of Federal Rule of Evidence 901(a) and given that no
evidence was presented to provide the Court with any basis for
authentication, the Court sustained the objections.*fn3
(Docket No. 78). Accordingly, the Court will not consider
same in ruling on Defendant's Motion to Return Property. (Docket No.
For the reasons set forth below, Defendant's Motion to Return Property (Docket No. ) is DENIED, without prejudice.
The parties dispute who bears the burden in the instant matter. Defendant asserts that the Property belongs to him. (Docket No. 79 at 3-4). Furthermore, Defendant contends that because he had left the Property in storage at 100 Mulberry Lane, the Property has not been abandoned. (Docket No. 79 at 4). Thus, Defendant maintains that the Government bears the burden to establish by clear and unequivocal evidence that the Property was abandoned. (Docket No. 79 at 4). Conversely, the Government avers that Defendant first bears the burden to establish an expectation of privacy and that Defendant has not presented any evidence to show that he has an expectation of privacy in the Property. (Docket No. 79 at 9). Counsel for the Government articulated its position as "[i]f they do nothing other than [have defense counsel] talking, then they've not met their burden of proof establishing reasonable expectation of privacy. Case closed." (Docket No. 79 at 11). Specifically, the Government submits that Defendant has failed to show any proprietary or possessory interest in the place to be searched or the item to be seized; a right to exclude others from the place where the Property was seized; any normal precautions to maintain his privacy; or a subjective expectation that the area would remain free from government intrusion. (Docket No. 79 at 20).
Federal Rule of Criminal Procedure 41(g) allows persons to move the government to return property unlawfully obtained.*fn4 FED. R. CRIM. P. 41(g); C. Wright, Federal Practice & Procedure, Criminal 4th § 690 at 243-56. Rule 41(g) provides that:
A person aggrieved by an unlawful search and seizure of property or by deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may ...