United States District Court, S.D. Indiana, New Albany Division
ENTRY ON DEFENDANT'S MOTION FOR RETURN OF
PROPERTY AND GOVERNMENT'S CROSS-MOTION FOR TURNOVER OF
WALTON PRATT, JUDGE
matter is before the Court on pro se Defendant Yoel
Palenzuela-Mendez's (“Mendez”) Motion for
Return of Property (Dkt. 891) and the Government's
Cross-Motion of the United States for Turnover of Seized
Funds and for Disbursement by Clerk of Court (Dkt. 897).
Mendez's motion will be treated as a motion under Federal
Rule of Criminal Procedure Rule 41(g). For reasons stated
below, Mendez's Motion is granted in part and
denied in part and the Government's Cross-Motion
December 9, 2015, Mendez entered a plea of guilty to one
count of possession of goods stolen from interstate commerce,
in violation of 18 U.S.C. § 659 (Count 21); one count of
interstate transportation of stolen property, in violation of
18 U.S.C. § 2314 (Count 22); and one count of
conspiracy, in violation of 18 U.S.C. § 371 (Count 23)
(Dkt. 307). On April 29, 2016, he was sentenced to 60
months' imprisonment, three years supervised release, and
a $300.00 Special Assessment fee (Dkt. 399).
August 14, 2018, Mendez filed Motion for Return of Property
in which he asks the Court “to send my propertys [sic]
that where [sic] taken from me the day of my arrest 2015 my
wallet ID's [sic] social security work permit and my
credit cards”. (Dkt. 891.) He also requests “the
money that was in my wallet to be deposit [sic] on my account
of D. Ray James Correctional Facility.” Id.
According to the Government, along with his personal property
items, $676.00 was seized from Mendez at the time of his
arrest. As of September 28, 2018, Mendez owed a balance of
$75.00 toward his Special Assessment fee. In their
cross-motion, the Government asks that $75.00 be applied to
Mendez's Special Assessment fee balance and the remaining
$601.00 be used to reimburse the costs of Mendez's court
appointed counsel. Mendez was granted until October 31, 2018
to respond or otherwise object to the Government's
Cross-Motion (Dkt. 899), but no response or objection has
person aggrieved… by the deprivation of property may
move for the property's return. See Federal Rule
of Criminal Procedure Rule 41(g). The motion must be filed in
the district where the property was seized, and the court
must receive evidence on any factual issue necessary to
decide the motion. Id. A Rule 41(g) motion will be
treated as a civil equitable proceeding for the return of the
property in question. United States v. Solis, 108
F.3d 722, 722 (7th Cir. 1997). As a motion in equity, the
district court is to “determine all the equitable
considerations in order to make a fair and just
decision.” United States v. Howell, 425 F.3d
971, 974 (11th Cir. 2005). A federal prisoner, may use Rule
41(g) to recover his property that the government no longer
needs. See United States v. Stevens, 500 F.3d 625,
628 (7th Cir. 2007). A Rule 41(g) motion may be brought after
the defendant's conviction, as well as before, as an
ancillary proceeding to the criminal case. Okoro v.
Callaghan, 324 F.3d 488, 490 (7th Cir. 2003).
Government contends that Mendez's Rule 41(g) motion
should be denied in part, because the Government has
legitimate reasons to retain the cash that was seized. The
Government explains that a lien arises in favor of the United
States on all property and rights to property of the person
fined, upon entry of judgment, pursuant to Title 18, United
States Code § 3613. Accordingly, the cash seized from
Mendez is subject to a lien to satisfy the outstanding
Special Assessment fee and may be properly turned over to the
Clerk's Office to satisfy that obligation. See also
United States v. Sawyer, 521 F.3d 792, 795 (7th Cir.
2008). The Court agrees and orders that the $75.00 balance
owed on the Special Assessment fee should be paid from
the Government argues the remaining $601.00 should be used to
reimburse the costs of Mendez's court appointed counsel
pursuant to 18 U.S.C. § 3006A(f). Specifically, 18
U.S.C. § 3006A(f) provides that “whenever the
United States magistrate judge or the court finds that funds
are available for payment from or on behalf of a person
furnished representation, it may authorize or direct that
such funds be paid” to the attorney or organization
that provided the legal services “or to the court for
the deposit in the Treasury as a reimbursement” for the
expense of furnishing counsel. United States v.
Standiford, 148 F.3d 864, 870 (7th Cir. 1998).
Reimbursement of costs of court-appointed counsel under the
Criminal Justice Act (“CJA”) is a matter within
the discretion of the District Court. United States v.
Embry, 128 F.3d 584, 585 (7th Cir. 1997).
determine whether the funds at issue are
“available” for payment within the meaning of
§ 3006A(f), a court should consider whether repayment
would impose extreme hardship on the defendant, interfere
with his family obligations, and whether third parties have
claims to the funds. United States v. McGiffen, 267
F.3d 581, 589 (7th Cir. 2001). In making this inquiry, a
Court is not required to hold an evidentiary hearing on the
“availability” of the funds before ordering that
funds seized from a defendant upon his arrest may be ordered
to reimburse defense costs. Embry, 128 F.3d at 586.
The Government argues that Mendez should have been aware at
the time he requested counsel that the Government might
properly seek to recover the cost of providing him with
counsel at a later date. Bracewell, 569 F.2d at
1197. They further contend that Mendez has not provided any
justification that failure of the funds being returned to him
would be a hardship, affect his family, or that third-parties
may have a claim to the funds.
Court notes that Mendez has not objected or otherwise
responded to the Government's Cross-Motion. Mendez is in
the custody of the Bureau of Prisons and the personal
expenses of a prisoner are minimal. The amount sought for
deposit under requested § 3006A--$601.00-- is relatively
small and no third-parties have made a claim for the funds.
Mendez has not presented any information to show the funds
are needed for familial responsibilities or that he would
suffer extreme hardship because of being deprived of the
funds. Accordingly, the Court grants the Cross-Motion with
respect to reimbursement of the costs of appointed counsel.
is entitled to return of the remaining property which
includes his wallet, ID card, Social Security work permit,
and credit cards. The Government has no objection to
returning these items, to Mendez at the completion of the
entire case and appeals, as requested to: 1055 West 77th
Street, Hialeah, Florida 33014.