ORDER

JENNIFER G. ZIPPS, District Judge.

Pending before the Court is Magistrate Judge Lynette Kimmins's Report and Recommendation (R&R) recommending that the District Court: (1) release $37,000 to Zakiriea Abdulkader Alghaithi; (2) retain the remaining $50,579 pending resolution of issues that will inform the Court's analysis as to whether any of the funds are subject to reimbursement; and (3) keep the referral of pending matters with the Magistrate Judge. (Doc. 323.) The United States has filed an objection to the recommendation that the Court release funds to Zakiriea. (Doc. 327.) After considering the R&R and the arguments raised in the United States' objection, the Court will overrule the objection and adopt Judge Kimmins's R&R.

STANDARD OF REVIEW

When reviewing a Magistrate Judge's Report and Recommendation, this Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge's recommendation relieves the Court of conducting de novo review of the Magistrate Judge's factual findings; the Court then may decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States Dist. Ct., 501 F.2d 196 (9th Cir. 1974)).

DISCUSSION

Following a jury trial, Defendant Abdulkader Naji Alghaithi was found guilty of two counts of conspiracy to commit with intent to distribute controlled substances and one count of possession with intent to distribute controlled substances, and acquitted of conspiracy to commit mail fraud. A jury was retained to determine whether Defendant's residence at 3975 East Agate Knoll Drive, Tucson, AZ, a 2015 Chevrolet Spark, and $87,597 in U.S. currency found at the residence were subject to forfeiture. The jury concluded that the home and the vehicle were forfeitable—but not the currency.

On December 17, 2018, Defendant filed a notice of lodging and lodged an order for return of property held in forfeiture, which the Court construes as a motion for return of property. (Doc. 270.) The United States responded by filing a request for a hearing in order to determine whether Defendant's newly discovered funds should be applied to reimburse the CJA fund for Defendant's representation during his criminal trial (Doc. 275), which the Court granted. (Doc. 277.) At the hearing on March 21, 2019, both Defendant and his son, Zakiriea Abdulkader Alghaithi, testified that $37,000 of the currency belonged to Zakiriea, and should therefore be released. Zakiriea testified that he had previously filed a seized asset claim form with the DEA claiming $37,000 of the $87,597 seized.1 (Exh. 31.) Judge Kimmins found that this testimony was not refuted by the United States.

"A person aggrieved . . . by the deprivation of property may move for the property's return." Fed.R.Crim.P. 41(g). "Ordinarily, property seized for purposes of a trial that is neither contraband nor subject to a forfeiture statute is to be returned to the defendant at the end of the trial." United States v. Van Cauwenberghe, 934 F.2d 1048, 1060-61 (9th Cir. 1991). "[W]hen the property in question is no longer needed for evidentiary purposes. . . . [t]he person from whom the property is seized is presumed to have the right to its return, and the government has the burden of demonstrating that it has a legitimate reason to retain the property." United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987).

Here, the government argues that the funds belonging to Defendant should be retained in order to reimburse the costs of Defendant's court appointed counsel pursuant to 18 U.S.C. § 3006A(f). See United States v. Bracewell, 569 F.2d 1194, 1197 (2d Cir. 1978) (holding the government was entitled to retain seized funds for CJA attorney's fees reimbursement); United States v. Dominguez-Calderon, No. 07-20099-19, 2010 WL 1424335, at *2 (W.D. Kan. Apr. 5, 2010) (analyzing whether to apply seized funds not subject to forfeiture to CJA expenses); United States v. Palenzuela-Mendez, No. 4:14-cr-00031, 2018 WL 6171471, at *2 (S.D. Ind. Nov. 26, 2018) (same); United States v. Bell, Nos. 07 C 26, 04 CR 382, 2007 WL 2303587, at *2-3 (N.D. Ill. Aug 9, 2007) (same). Pursuant to the Criminal Justice Act (CJA),2 Defendant was deemed financially unable to obtain representation and furnished with counsel. The Act provides, however, that "[i]f at any time after the appointment of counsel the U.S. magistrate judge or the court finds that the person is financially able to . . . make partial repayment for the representation, it may . . . authorize payment." See 18 U.S.C. §§ 3006A(c), (f); United States v. Lorenzini, 71 F.3d 1489, 1494 (9th Cir. 1995).

In order to determine whether funds are available for reimbursement, the court must consider a defendant's present ability to repay the funds. United States v. Danielson, 325 F.3d 1054, 1077 (9th Cir. 2003). In this case, Defendant's ability to repay funds depends on a number of issues currently pending consideration—including whether his wife, Hebah Alghaithi, is entitled to a community property interest in the forfeited residence, as well as whether a portion of the seized funds not subject to forfeiture belong to Ms. Alghaithi, and whether those funds are available to reimburse CJA expenses. Accordingly, the Court will adopt the recommendations that the remaining funds be retained pending resolution of these issues, and that the District Court keep the referral of these pending matters with Magistrate Judge Kimmins.

The United States contends that Zakiriea does not have a lawful claim to $37,000 of the $87,597 seized, and that all or at least a portion of those funds are Defendant's and available for consideration as to whether Defendant is financially able to reimburse CJA fees. A claimant must prove the right to lawful possession of seized property. See Omidi v. United States, 851 F.3d 859, 862-83 (9th Cir. 2017); Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993); United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). Zakiriea did so here. Both Zakiriea and Defendant testified at the March 21 hearing that $37,000 of the seized assets belonged to Zakiriea. (RT 3/21/19, at 12-14, 19.) Defendant further testified that money found in the couch, elsewhere in the house, and in a large stack alongside a note with Zakiriea's name on it3 belonged to Zakiriea. (RT at 55, 64.) This testimony was consistent with that provided during Defendant's trial. (Doc. 290, pgs. 64-66, 69-70.) Finally, Zakiriea lived in the home from which the currency was seized. (RT at 11.)

The United States challenges the sufficiency of the evidence in support of Zakiriea's claim, but does not demonstrate any inconsistencies in the evidence supporting his claim4 or offer any evidence suggesting that the funds belong to Defendant or anyone else instead.5 Accordingly, the Court finds that Zakiriea established his ownership of the $37,000 of the seized assets. Because the government has not provided any justification for further retaining Zakiriea's property, the Court concludes that the Magistrate Judge's Recommendation as to those funds should be adopted.

CONCLUSION

IT IS ORDERED that the Report and Recommendation (Doc. 323) is ADOPTED.

IT IS FURTHER ORDERED that the motion for return of property (Doc. 270) is GRANTED IN PART to the extent provided in this Order.

IT IS FURTHER ORDERED that the United States release $37,000 to Zakiriea Abdulkader Alghaithi within seven (7) days of the date of this Order.

IT IS FURTHER ORDERED that the balance of the funds in the amount of $50,579 be retained by the United States pending resolution of the remaining issues, which are referred to and pending before Magistrate Judge Kimmins for report and recommendation.