Kwan v. United States

265 F. App'x 495

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 23, 2008
• Docket: No. 06-35082
• Status: Published

Opinion

MEMORANDUM

*

This is an appeal from the district court’s order denying the pre-indictment motion of Albert Kwok Leung Kwan for the return of property under Federal Rule of Criminal Procedure 41(g). “[District courts have the power to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant. These motions are treated as civil equitable proceedings and, therefore, a district court must exercise ‘caution and restraint’ before assuming jurisdiction.” Ramsden v. United States, 2 F.3d 322, 324 (9th Cir.1993) (citations omitted). Here, the district court’s tersely-worded order stated only that “the motion to return the property of Mr. Kwan seized pursuant to the investigation of this matter is DENIED.” It is evident, however, and Kwan does not contend otherwise, that Kwan did not make the four-factor showing which Rams-den requires as a predicate to the district court assuming jurisdiction over a preindictment Rule 41(g) motion. See id. at 324-25; see also United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 929 (9th Cir.2006).

The order of the district court is therefore AFFIRMED without prejudice to Kwan renewing his Rule 41(g) motion on a proper showing of the Ramsden factors before the district court.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.