MOTION TO RETURN PROPERTY UNDER RULE 41 (g) OF CRIMINAL PROCEDURE

JOHN M. GERRARD, District Judge.

Now comes, Defendant Gabriel Alonso Ruela-Lugo, Proceeding Pro Se, in this matter, respectfully file the instant Motion to Return Property, under the Rule 41(g), of Criminal Procedure, and in support states as follows:

BACKGROUND

Defendant was arrested on 09-11-2014, and during the ejecution of said arrest; were confiscated him by the agents a wallet with various documents, and a gold chain, which cost is over $5,000 dollars.

Defendant was charged of violation of 21 U.S.C.§ 841 (A)(I) and 841(B)(1)(A), Distribute 50 grams of more of a mixture of substance containing Methamphetamine, on 05-01-2015, and defendant was sentenced to 70 months of imprisonment and 4 years of supervision. Defendant i projected for release on 10-14-2019.

PROCEEDING PRO SE

Defendant, hereby asserts that he is not an attorney and does not have any legal or professional backgrund, pertaining to drafting or filing motions, but defendant has meritorious claims and prays that this Honorable Court, liberally construes this motion in light of the Supreme Court's decision in Haines v. Kerner 404 U.S. 319 (1972) as squarely stated by the Second Circuit Court of appeals in Soto v. Walker, 441, F3d 169 (2nd Cir. 1995), "Pro Se motions must be liberally construed and interpreted to raise the strongest arguments that they support."

LEGAL STANDARD OF REVIEW

The Rule 41 (g) establish that:

A person aggrieved by an unlawful search and seizure of property by 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 acces to the property and its use in later proceedings.

United States v. Lester, 21 FDR 30, 31 (DC SD NY 1957). Rule 41 (c) of course, specifically provides for making of the motion in the district of seizure on a summary hearing, however, the rule there is likely always to be tentative. It accords most satisfactorily with sound administration of the Rules to treat such rulings as interlocutory.[369 US at 132-133.]

As amended, subdivision (e) provides for a return of the property if (1) the person is entitled to lawful possesion and (2)the seizure was illegal. This means that the Judge in the district of seizure does not have to decide the legality of the seizure in cases involving contraband which, even seized illeagally, is not be returned.

The five grounds for returning the property, listed in the old rule, are dropped for two reasons (1) substantive grounds for objecting to illegally obtained evidence (e.g., Miranda) are not ordinarily codified in the rules and (2) the categories are not entirely accurate. See United States v. Howard, 138 F.Supp. 376, 380 (D Md 1956).

A sentence is added to subdivision (e) to provide that: motion for return of property, made in the district of trial, shall be treated also as a motion to suppress under Rule 12. This change is intented to further the objective of rule 12 which is to have all pretrial motions diposed of in a single court appearance rather than to have a series of of pretrial motions made on differents dates, causing undue delay in administration.

Subdivision (f) is new and reflects the position that is the best to have the motion to suppress made in the court of the district of trial rather than in the court of the district in which the seizure occurred. The motion to suppress in the district of trial should be made in accordance with the provisions of rule 12.

Subdivision (g) is changed to conform to subdivision (c) which requires the return to be made before a federal judicial officer even though the search warrant may have been issued by a nonfederal magistrate.

Subdivision (h) is former rule 41 (g) with teh addition of a definition of the term "daytime" and the phrase "federal law enforcement officer."

REASONS AND FACTS FOR WICH THIS MOTION SHOULD BE GRANTED

The day of his arrest the defendant was confiscated a gold chain, which cost is over $5,000 dollars, by the agents that ejecuted his arrest and a wallet with documents; however after that defendant was setting under federal custody, he never received by the agents a letter or notice where should be informed to defendant regarding to the return of his property, under the due process administrative in the differents agencies of the U.S. Goverment, situation that constitute a violation to its same Rule Administrative; in that sense, I request that the Court consider under Rule 41 (g) of Criminal Procedure, and order the defendant's return of his property, which in that case is a golden chain and a wallet containing various

CONCLUSION

Wherefore; Defendant respectfully prays that this Honorable Court order to the agents of the goverment, the return of petitioner's property above referenced or as this Court deems just, necessary and proper.