Motion for Return of Property under Rule 41(g)

When the government seizes property and delays initiating judicial forfeiture proceedings for months or years, the owners of seized personal property can file a motion in the district court to demand the return of their property.

Federal Rule of Criminal Procedure 41(g) provides the property owner with timely access to the courts if they seek to challenge the government’s seizure of their property. Rule 41(g) provides:

A person aggrieved by an unlawful search and seizure of property or by the 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 impose reasonable conditions to protect access to the property and its use in later proceedings.

When criminal proceedings are already underway against the aggrieved property owner, such motions can be heard as part of the criminal case itself. Even when criminal proceedings are not yet underway, an aggrieved property owner may invoke Rule 41(g) to obtain judicial review. The motion for return of property is treated as a petition for civil equitable relief subject to the district court’s balancing of the following four discretionary factors:

1. whether the Government displayed a callous disregard for the constitutional rights of the movant;
2. whether the claimant has an individual interest in and need for the property he wants returned;
3. whether the claimant would be irreparably injured by denying return of the property; and
4. whether the claimant has an adequate remedy at law for the redress of his grievance.

When a pending judicial forfeiture proceeding provides the movant with an adequate remedy at law, that factor weighs heavily against an exercise of equitable jurisdiction.  Most challenges to the government’s basis for seeking forfeiture that could be raised in judicial forfeiture proceedings may also be raised in proceedings under Rule 41(g).

Judicial Forfeiture Proceedings and Rule 41(g) Motions

One difference between judicial forfeiture proceedings and motions for return of property under Rule 41(g) involves the burden of proof. The claimant bears the burden of proof in a Rule 41(g) proceeding. On the other hand, the government bears that burden in judicial forfeiture proceedings, 18 U.S.C. § 983(c)(1).

The district court construes the motion for return of the seized funds as a motion under Rule 41(g). The owners can then challenge the lawfulness of the government’s seizure (and retention) of the property. In the motion for return of property under Rule 41(g), the property owner can argue:

1. a violation of the notice deadline imposed by § 983(a)(1)(A);
2. the seized funds lack any connection to criminal wrongdoing and, thus are not subject to forfeiture; or
3. the government’s lengthy delay in initiating judicial forfeiture proceedings violates their due process rights.

A civil asset forfeiture attorney can file a motion for the return of seized property pursuant to Criminal Rule 41(g). Any motion or complaint for return of property under Criminal Rule 41(g) are used to seek the return of seized property after an indictment has been issued.

The district courts can order the return of property under Rule 41(g) when no criminal proceedings are pending against the claimant. Courts exercise caution and restraint when deciding whether to return property under Rule 41(g).