The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter is before this Court on Petitioner Andre Bell's motion to return property pursuant to Fed. R. Crim. P. 41(g) and the United States' cross-motion for turnover of seized funds. For the following reasons, Bell's motion is granted and the United States' cross-motion is denied.
On April 9, 2004, Bell bought five firearms from an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). Bell then negotiated with the ATF's confidential informant to exchange these five firearms for a quantity of marijuana. When Bell arrived at the designated location to pick up the drugs, ATF agents arrested him and seized $5,254, along with other miscellaneous items, from Bell. On August 24, 2005, Bell pled guilty to a one-count indictment charging him with violating 18 U.S.C. § 922(g) by knowingly possessing firearms, in and affecting interstate commerce, after having been previously convicted of a felony. On April 4, 2006, this Court sentenced Bell to 66 months' imprisonment. During Bell's criminal case, he was represented by a staff attorney from the Federal Defender Program and two private court-appointed attorneys. According to the government, records maintained in the office of the Clerk of Court show that Bell's private attorneys were paid a total of $12,713.91 for Bell's defense.
Bell now requests the return of property seized from him upon his arrest as described on the inventory of property maintained by the ATF: $5,254 in cash, various documents, 6 keys, 1 handcuff key, a fingernail clipper, and a cellular phone, as well as other documents and computer disks used in the case against him.
The government has agreed to return the documents, keys, and cellphone if those items are still in the ATF's possession, although it objects to returning the $5,254 to Bell. In its cross-motion, the government requests that this Court direct that the funds be deposited into the registry of the Court for repayment to the agency that provided Bell's court-appointed counsel, as permitted by 18 U.S.C. § 3006A(f).
Bell argues that the government's motion is untimely and unfair, given that the amount of attorneys' fees and the amount of the seized funds were known at sentencing and an order of reimbursement could have been made at that time. Bell alleges that his counsel represented to him that the government did not request that the $5,254 be forfeited at sentencing because the government intended to return the funds. Furthermore, Bell argues that the seized funds were not "available" to him in order to retain counsel, as they were seized upon his arrest, and so should not be applied now to pay for government-provided counsel. Finally, Bell urges us to consider that as a consequence of the government's seizure of the $5,254, he was unable to pay the impound fees to recover the 2000 Chevy Impala he was driving at the time of his arrest and consequently lost the car.
We ordered Bell to supplement his response with information concerning his financial situation in order to allow us to determine whether, pursuant to 18 U.S.C. § 3006A(f), the funds at issue are "available" for payment within the meaning of the statute. Bell has submitted his own affidavit describing his financial circumstances, as well as an affidavit from his sister, who has temporary legal custody of Bell's nine year old daughter, explaining that Bell has been unable to provide support for his daughter since his incarceration.
I. Bell's Motion for Return of Property
Bell's motion is made pursuant to Fed. R. Crim. P. 41(g), which permits him to request the return of property seized by the government. U.S. v. Sims, 376 F.3d 705, 708 (7th Cir. 2004). Should the government contest the motion, it must demonstrate that its continued retention of the property is reasonable. In re Search of Office of Tylman, 245 F.3d 978, 980 (7th Cir. 2001). In this case, with the exception of the $5,254 in seized funds, the government has agreed to return the property requested by Bell to the extent such property is still in its possession.
Accordingly, the only issue in contention is the propriety of returning the seized funds, which we address below in our discussion of the government's cross-motion.
II. United States' Motion for Turnover of Seized Funds
The United States asks us to order that the seized funds be turned over to the Court for reimbursement of the costs of providing Bell's court-appointed attorneys as permitted by 18 U.S.C. § 3006A(f). This statute provides in relevant part that "whenever...the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid" to the attorney or organization that provided the legal services or to the Court for deposit in the Treasury as reimbursement of the appropriations made to provide legal ...