The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on Defendant's Motion for Return of Property (#18) and the government's Amended Motion for Handwriting Exemplars (#26). For the following reasons, Defendant's Motion for Return of Property (#18) is DENIED and the government's Motion for Handwriting Exemplars (#26) is GRANTED.
MOTION FOR RETURN OF PROPERTY
Defendant filed his Motion for Return of Property (#18) on May 22, 2009. In the motion, Defendant asks for the court to enter an order for the return of all items seized by the government on November 24, 2008, pursuant to a search warrant executed in Bourbonais, Illinois. Defendant bases his motion on Federal Rules of Criminal Procedure 41(g) and 16(E). Defendant claims the items seized are material to preparing his defense and that he is aggrieved by the deprivation of said property. He argues that the property is necessary to the investigation of the case and the presentation of a defense.
The government filed its Response (#24) on July 15, 2009. In its Response, the government states that on January 29, 2009, it provided Defendant with the search warrant return inventory and noted that Defendant could copy, inspect, or photograph those items at the office of the United States Attorney upon reasonable notice pursuant to Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure. During a status hearing on June 24, 2009, the government noted that it had resolved the matter with defense counsel by maintaining its offer to allow defense counsel and Defendant to inspect, review, and copy the seized items. The government argues that Rule 16(E) does not allow for the return of the seized property, but merely for Defendant to inspect, copy, or photograph and that but for Defendant's request for a new counsel, Defendant would have already had the opportunity to inspect the items. Further, the government's offer to allow Defendant to inspect, copy, or photograph the seized items remains open.
As to the Rule 41(g) request for return of property, the government notes that Defendant alleges he is aggrieved by the deprivation of his property. The government argues that Defendant's allegations are conclusory and do not explain or specify why the inspection and copying of the seized items is insufficient and the return of the items is necessary for his defense. The government argues that since the prosecution is ongoing, it is reasonable for the government to retain the seized items and that Defendant's motion should be denied.
Rule 16(E) of the Federal Rules of Criminal Procedure states:
"Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control, and:
(i) the items is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief;
(iii) the item was obtained from or belongs to the defendant." Fed. R. Crim. P. 16(E).
Rule 41(g) of the Federal Rules of Criminal Procedure states:
"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).
If the government has allowed a Defendant access to seized business records, a district court may properly deny a motion for return of property pursuant to Rule 41(g). In re Search of 2847 East Higgins Road, Elk Grove Village, Illinois, 390 F.3d 964, 968 (7th Cir. 2004). Here, the government has offered Defendant and his counsel access to seized items for inspection and to help prepare a defense. Further, Defendant has not articulated or specified why he needs the property back and why the ability to inspect, ...