United States District Court, W.D. Washington, Seattle
L. ROBART United States District Judge.
the court is Defendant Bryce Balls' Federal Rule of
Criminal Procedure 41(g) motion for the return of property.
(Mot. (Dkt. # 33).) Mr. Balls requests that Plaintiff United
States of America (“the Government”) return one
pair of Thermal Eye 250(D) Night Vision Goggles and one olive
green tactical bag, which the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”) seized during a
search of his residence in 2014. (Id. at 1.)
controlling Ninth Circuit precedent, the court must construe
Mr. Balls' Rule 41(g) motion as a civil complaint because
there are no criminal charges currently pending against him.
(See Dkt.); United States v. Ibrahim, 522
F.3d 1003, 1007-08 (9th Cir. 2008); United States v.
Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).
Accordingly, the Federal Rules of Civil Procedure apply to
Mr. Balls' Rule 41(g) motion. Ibrahim, 522 F.3d
at 1007; Ritchie, 342 F.3d at 907. Moreover, under
the same Ninth Circuit precedent, the court must construe the
Government's response to Mr. Balls' motion as a
motion to dismiss Mr. Balls' civil complaint.
(See Resp. (Dkt. # 34)); Ibrahim, 522 F.3d
at 1007. So construed, the court DENIES the Government's
motion to dismiss and ORDERS the Government to show cause why
it should not return Mr. Balls' property as discussed
matter arises from an ATF search of Mr. Balls' residence
on December 12, 2014. (Mot. at 1.) The ATF was investigating
Mr. Balls for theft of firearms from Quantico Tactical, a
federal firearms licensee, in Lakewood, Washington. (Resp. at
1.) During the search, the ATF recovered firearms,
ammunition, firearm scopes, and other items-including a pair
of night vision goggles and an olive green tactical bag.
(Id.; Mot. at 1.) On December 18, 2014, a federal
grand jury indicted Mr. Balls on one count of felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). (Mot. at 2; Indictment (Dkt. # 3).) On April 23,
2015, the Government also charged Mr. Balls with one count of
felon in possession of ammunition in violation of 18 U.S.C.
§ 922(g)(1). (Mot. at 2; Felony Information (Dkt. #
22).) On April 27, 2015, Mr. Balls pleaded guilty and was
sentenced to 42 months in prison. (Mot. at 2; Plea Agreement
(Dkt. # 25).)
February 7, 2017, Mr. Balls filed a motion seeking the return
of the night vision goggles and the olive green tactical bag.
(See Mot.) The Government responded to the motion on
February 17, 2017, objecting to the release of the items.
(Resp. at 2.) Mr. Balls replied on March 20, 2017. (Reply
(Dkt. # 35).) The court now considers Mr. Balls' motion.
court construes Mr. Balls' motion as a civil complaint
and the Government's response as a motion to dismiss.
See Ibrahim, 522 F.3d at 1007. To survive a motion
to dismiss, a complainant must allege “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In this case, Mr. Balls alleges that the Government
retains possession of one pair of Thermal Eye 250D Night
Vision Goggles and one olive green tactical bag. (Mot. at 1;
see also Id. Ex. A.) Moreover, Mr. Balls alleges
that those items should be returned because they are not
needed for evidence. (See generally Mot.)
Government does not refute Mr. Balls' allegation that it
retains possession of the property at issue but objects to
the release of the items. (See Resp. at 2.) The
Government fails, however, to provide a legitimate reason for
retaining the property at issue. In its response, the
Government states, without citation to any evidence, that Mr.
Balls must “prove he legitimately owned/possessed these
items” because “most of the items recovered from
[Mr. Balls'] residence were stolen and it appeared he was
stealing many items and selling them.” (Id.)
The Government admits, though, that the “night vision
googles [sic] were not taken from Quantico Tactical and due
to the lack of tags it is difficult to determine the source
of the bag.” (Id.)
response, the Government misstates the burden of proof.
(See generally Resp.) Under Rule 41(g), when the
property in question is “no longer needed for
evidentiary purposes, either because trial is complete, the
defendant has pleaded guilty, or . . . the government has
abandoned its investigation, ” the Government bears the
burden of proof. United States v. Martinson, 809
F.2d 1364, 1369-70 (9th Cir. 1987). In such an instance, the
“person from whom the property is seized is presumed to
have a right to its return, and the government has the burden
of demonstrating that it has a legitimate reason to retain
the property.” Id.; see also United States
v. Kriesel, 720 F.3d 1137, 1144 (9th Cir. 2013)
(explaining that a “defendant's Rule 41(g) motion
should presumptively be granted if the government no longer
needs the property for evidence”). The Government can
rebut this presumption “by proving a ‘legitimate
reason' for retaining the property that is
‘reasonable under all of the
circumstances.'” United States v.
Gladding, 775 F.3d 1149, 1152-53 (9th Cir. 2014)
(quoting Kriesel, 720 F.3d at 1145). Thus, the
Government cannot rest on its mere allegation that the items
at issue are stolen contraband. (See Resp. at 2.)
Instead, the Government must come forward with evidence of a
legitimate reason for retaining the property to overcome the
presumption that the property is no longer needed for
evidentiary purposes and should be returned.
court thus ORDERS the Government to SHOW CAUSE within twenty
(20) days as to why the night vision goggles and olive green
tactical bag should not be returned to Mr. Balls. See
United States v. Sperow, No. 1:06-CR-126-BLW, 2017 WL
1073347, at *9 (D. Idaho Mar. 20, 2017) (The
“Government shall have ten (10) days from the date of
this Order to file a supplemental response . . . identifying
any items . . . of Sperow's Inventory to which it asserts
a continued evidentiary need.”); Santos-Pineda v.
Axel, No. CV 10-6285 MMM, 2011 WL 13103995, at *8 (C.D.
Cal. July 26, 2011), aff'd, 621 F.App'x 407
(9th Cir. 2015) (requiring a supplemental report within ten
days). Within ten days of the Government's response to
the court's order to show cause, Mr. Balls may file a
response to the Government's submission. Within five days
of Mr. Balls' filing, if any, the Government may file a
reply. The parties' initial submissions shall be limited
to ten (10) pages. The Government's reply, if any, shall
be limited to five (5) pages. If either party requests a
hearing in its initial filing, the court will consider
conducting a hearing to take any additional testimonial or
other evidence that the parties could not submit with their
papers or to hear the oral argument of the parties. See
United States v. Burum, 639 F.App'x 503, 504 (9th
Cir. 2016) (finding it an abuse of discretion under Rule
41(g) to not hold an evidentiary hearing when the court did
not resolve “several outstanding factual
Government fails to demonstrate a legitimate reason for
retaining the property, the court will order the Government
to return the property to Mr. Balls. See, e.g.,
Ordonez v. United States, 680 F.3d 1135, 1137 (9th
Cir. 2012) (citing Fed. R. Crim. P. 41(g)) (“If a
motion to return property is granted, ‘the court must
return the property to the movant.'”); United
States v. Wright, No. 2:14-CR-357-APG-VCF, 2017 WL
811499, at *2 (D. Nev. Feb. 9, 2017), report and
recommendation adopted, No. 2:14-CR-357-APG-VCF, 2017 WL
810280 (D. Nev. Feb. 28, 2017) (The “Government has not
articulated a legitimate reason, other than unsubstantiated
allegations that the money to buy the watch came from an
unlawful source, why the watch should not be returned . . . .
The Government should be ordered to return to Wright the
Technolink watch.”); Santos-Pineda, 2011 WL
13103995, at *9 (“As the government has failed to
present any evidence or argument that these items constitute
contraband or are necessary for Alonso-Prieto's case, the
court grants petitioners' motion respecting these items
and orders their immediate return.”).