DAVID R. HERNDON, District Judge.
This matter comes before the Court for disposition of two motions for return of property. The first motion, docketed June 5, 2018, was filed pursuant to Federal Rule of Criminal Procedure 41(g), "Search and Seizure". [Doc. 1]. This motion, along with an Ex Parte Emergency Motion for the Sequestration, Preservation and Production of U.S. Currency, Police Radio Transmissions and Visual Recordings or Communication Tape(s) (doc. 2), opened the case. Because the matter was opened with a motion, and not a Complaint, the case was docketed as a "miscellaneous cause."
Due to the time sensitive and delicate nature of the petitioner's ex parte motion, the Court issued an Order the following day based on petitioner's allegations to ensure that evidence would be properly preserved (doc. 4). The United States responded to this Order on June 28, 2018 advising of the posture of the seized U.S. Currency and to inform Mr. Barber that the government recognized his motion for return of property as a "claim," meeting the standards set forth in Rule G(5)(a)(i)(C) of the Supplemental Rules for Certain Admiralty and Maritime Claims and Asset Forfeiture Actions. See doc. 7 at 4-5. Accordingly, the United States made its intentions known to file a Civil Complaint for Forfeiture by September 4, 2018, the response period laid out under 18 U.S.C. § 983(a)(3)(A).
Next, on July 11, 2018, petitioner filed his second motion for return of property, this time (presumably following the government's lead) pursuant to the general rules for civil forfeiture proceedings, 18 U.S.C. § 983(f). [Doc. 8]. Under subsection (f), "Release of Seized Property," when no complaint has been filed a claimant may file a petition with the District Court in which the property was seized. Id. at § 983 (f)(3)(A)
Considering this background, the Court makes the following rulings:
1. The Motion for Return of Property brought pursuant to Federal Rule of Criminal Procedure 41(g) (doc. 1) is
The Court is aware that district courts within the Seventh Circuit have taken a different approach from those of the courts used as exemplifiers supra and have held that a motion for return of property pursuant to Rule 41(g) may stand independently when no criminal proceedings underlay it. For example, the Eastern District of Wisconsin in In re Search of 3765 Kettle Court E., Delafield, Wisconsin, No. 09-M-25, 2009 WL 1508165 (E.D. Wis. May 29, 2009) held that "when there is no pending related criminal proceeding, a Rule 41(g) motion is brought under the magistrate judge case number that relates to the underlying search warrant." However, this variance still does not demonstrate the validity of petitioner's Rule 41(g) motion as there is no applicable search warrant issued in this case.
2. The Court now turns to petitioner's motion for return of property pursuant to 18 U.S.C. § 983(f) (doc. 8), filed after the government's response to petitioner's original motion under Rule 41(g). Under § 983(f), a claimant may move for the immediate release of seized property in the district court where the property was seized if certain conditions are demonstrated. Once the petition is filed, the Court must render its ruling within 30 days. Id. at § 983 (f)(5).
In the July 11th motion, petitioner alleges substantial hardship to his business and livelihood if the return of his RV is not imminent. Per § 983 (f)(1)(D), petitioner's allegations attempt to demonstrate that "continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding." Accordingly, the motion is valid and it is appropriate for the defendants to file a response.
3. Regarding the motion for return of property pursuant to 18 U.S.C. § 983(f) (doc. 8) and the accelerated timeline dictated by statute, the defendants are