Faulkner v. United States

• Court: District Court, E.D. Virginia
• Decided: October 3, 2022
• Docket: 3:22-cv-00073
• Status: Unknown

Opinion

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part of Faulkner’s sentence and specifically incorporated the forfeiture of the items seized from Faulkner on October 3, 2016, into his judgment. (ECF No. 13-8, at 8-9.) Il. ANALYSIS Federal Rule of Criminal Procedure 41(g) provides: A person aggrieved by an unlawful search and seizure of property or by the 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 access to the property and its use in later proceedings. Fed. R. Crim. P. 41(g). The Court properly denies a motion for return of property if the defendant lacks entitlement to “lawful possession of the seized property, the property is contraband or subject to forfeiture[,] or the government’s need for the property as evidence continues.” United States v. Rudisill, 358 F. App’x 421, 421 (4th Cir. 2009) (quoting United States v. Van Cauwenberghe, 934 F.2d 1048, 1060-61 (9th Cir. 1991)); United States v. Vanhorn, 296 F.3d 713, 719 (8th Cir. 2002) (quoting United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993)).? Here, the record establishes that Faulkner lacks lawful entitlement to return of the property he seeks. The Consent Preliminary Order of Forfeiture and the other documents from the Tennessee District Court demonstrate that Faulkner forfeited the property he seeks here to the United States. Because the United States seized the property and it was forfeited to the United States, Faulkner lacks lawful entitlement to the property, and he cannot avail himself of Rule

□ The cases cited herein predating 2002 address motions brought pursuant to Federal Rule of Criminal Procedure 41(e). The Advisory Committee reorganized Rule 41 in 2002, amended Rule 41(e), and recodified it as Rule 41(g). The Advisory Committee Notes described the changes as “stylistic only.” See Fed. R. Crim. P. 41, Advisory Committee Notes, 2002 Amendments.

41(g) relief. United States v. Soza, 599 F. App’x 69, 70 (4th Cir. 2015) (citation omitted); Rudisill, 358 F. App’x at 421 (citing Van Cauwenberghe, 934 F.2d at 1060-61); United States v. Fitzen, 80 F.3d 387, 389 (9th Cir. 1996) (“It is well-settled that the federal government may defeat a Rule 41([g]) motion by demonstrating that the property is subject to federal forfeiture.”) (citation omitted). Faulkner responds that he can utilize Rule 41(g) to obtain the return of his property because there were defects in the forfeiture proceeding the Tennessee District Court. (ECF No. 16.) This argument fails. Faulkner’s property was subject to criminal forfeiture. A “Tc]riminal forfeiture is part of a defendant’s sentence,” United States v. Martin, 662 F.3d 301, 306 (4th Cir. 2011) (citation omitted), and thus, can only be challenged on direct appeal, or the challenge is waived, see Young v. United States, 489 F.3d 313, 315 (7th Cir. 2007) (citations omitted). Accordingly, the motion for return of property, (ECF No. 2), will be DENIED. The action will be DISMISSED. An appropriate Order will accompany this Memorandum Opinion.

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