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United States v. Wilson

United States District Court, D. Nebraska

November 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GARY WILSON, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard, United States District Judge.

         The defendant, Gary Wilson, was arrested for, and subsequently pled guilty to, possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). During a search of his home and garage, the government seized various items from the defendant's possession, including-but not limited to-firearm ammunition, chemicals, fuses, and tubes. The government, citing safety concerns, has filed a motion to destroy that property. Filing 89. The defendant objects in part to the government's request, arguing that certain items should either be returned to him as the lawful owner, or turned over to a responsible third party. The Court held an evidentiary hearing on the pending motions on June 21, 2017. For the reason set forth below, the pending motion (filing 89) will be granted in part, and denied in part.

         As an initial matter, neither party has provided a legal basis for their respective filings. In other words, the government does not cite a statutory framework governing motions to destroy property (because no such statute exists), and the defendant has not specifically moved under the Federal Rules of Criminal Procedure for the return of seized property. But, after reviewing the substance of the respective filings, the Court construes the present dispute as a motion to return property under Fed. R. Crim. P. 41(g).[1] That rule provides an avenue for criminal defendants to obtain property that the government has lawfully (or unlawfully) seized from the defendant's possession. Here, the government has seized the defendant's property, and the defendant wants it back-thus, Rule 41(g) applies.

         Under Rule 41, the defendant must first establish lawful entitlement to the property at issue. Jackson v. United States, 526 F.3d 394, 396 (8th Cir. 2008). This burden is often satisfied where the property is seized from the movant's possession, as a person from whom property is seized is presumed to have a right to its return. Id. Here, the property was seized from the defendant's home, and thus the presumption of lawful entitlement applies. But the Court must also consider the defendant's status as a convicted felon and the terms of his supervisory release, which specifically forbid him from "possess[ing] a firearm, destructive device, or any other dangerous weapon." Filing 86 at 3. And those considerations are particularly relevant in this case, as much of the evidence at issue is related to, or designed for, the manufacturing of homemade explosives.

         If the defendant can establish that he is legally entitled to all or some of the seized evidence, then the burden shifts to the government to articulate a "legitimate reason to retain the property." Jackson, 526 F.3d at 397. The government may satisfy this burden by showing a cognizable claim of ownership or right to possession adverse to the movant's. Id. Or, stated differently: the Rule 41(g) motion "is properly denied if the defendant is not entitled to lawful possession of the seized property, the property is contraband or subject to forfeiture or the government's need for the property as evidence continues." Id.

         Against this backdrop, and as set forth more fully below, the Court finds that the defendant is entitled to the return of some of the seized property. Some of the property will be destroyed, however, because Wilson, pursuant to the terms of his supervised release, is not legally entitled to possess it. And the Court will allow the government to turn over the remaining items to a responsible third party. The Court has received adequate assurances that the designated third party-John B. Erickson of North Platte, Nebraska-will in no way permit the defendant to obtain, or otherwise exercise control over the evidence once it is in his (Erickson's) possession.

         As a final matter, this Memorandum and Order incorporates exhibits 1 (filing 89-1) and 2 (filing 89-2) that were introduced and received at the June 21 evidentiary hearing, and the accompanying photographs contained in filing 92-1 and 92-2. The item numbers listed below correspond to the respective listings in each exhibit-thus, the Court need not, and will not, individually describe each seized item below.

         1. Evidence To Be Destroyed

         After carefully considering the evidence, the Court has determined that Wilson is not legally entitled to possess the items listed below. Thus, to the extent that the government moves to destroy such items, that motion will be granted:

• Exhibit 1 (filing 89-1), Items: M-3; L-1; L-2; L-3; 41 - 44; and 46.
Exhibit 2 (filing 89-2), Items: 1 - 14[2]; 26; and 38. The above listed items shall be destroyed.

         2. Evidence to Be Returned To Defendant

         After carefully considering the evidence, the Court has determined that Wilson is legally entitled to possess the following items. Thus, to the extent that the government ...


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