United States District Court, N.D. Illinois
April 12, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Michael Hill, a federal prisoner, filed a pro se motion pursuant to
Fed.R.Crim.P. 41(g), seeking the return of certain items seized during
several arrests by local law enforcement officers that ultimately led to
his being charged and sentenced in this court. In his motion, Hill states
that the property was seized by local law enforcement authorities.
Attached to Hill's motion are two letters to him from his attorney which
suggest the property sought was never in the possession of the federal
The government has filed a response to the motion in which it asserts
that the property was never in its possession. Included with the
government's response is the affidavit of a special agent of the Bureau
of Alcohol, Tobacco, Firearms, and Explosives (ATF) which states that
local law enforcement officers seized and retained custody of the
property and that no federal agent or agency, including the United States
Attorney's office, ever exercised control or custody over any of the
property. The government also included copies of local law enforcement
officers' reports which identify the various items sought to be recovered
and indicate that those items were originally seized by local law
Rule 41(g) entitles a person "aggrieved by an unlawful search and
seizure of property or by the deprivation of property" to seek the return
of his property. Fed.R.Crim.P. 41(g). Because in the usual case the only
relief sought by a Rule 41(g) motion is return of the property by the
government, the fact the government does not have the property is
ordinarily a conclusive ground for the denial of the motion. Okoro v.
Callaghan, 324 F.3d 488, 490 (7th Cir. 2003); United States v. Solis,
108 F.3d 722, 723 (7th Cir. 1997). The court must receive evidence on any
factual issue necessary to decide the motion. Fed.R.Crim.P. 41(g).
Here, the relevant issue raised by the motion and the response is
whether the government possesses the property. Hill has not submitted (
nor referred to any) evidence that would support the conclusion that the
government has ever possessed the items he seeks to recover. In fact, the
only evidence submitted by Hill suggests otherwise. The government, on
the other hand, has submitted an affidavit of a federal law enforcement
officer that unequivocally states that no agent or agency of the federal
government has ever possessed the property.
Based on this undisputed evidence, the court finds the government has
never possessed the property and, therefore, denies Hill's Rule 41(g)
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