The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
Marvel Thompson ("Thompson") moves pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure for the return of cash and property that the government seized from him during the execution of several search and arrest warrants in 2004. For the reasons explained below, Thompson's motion is granted in part and denied in part.
In May 2004, the government arrested Thompson and charged him and forty-six other defendants with a drug conspiracy. At the time of Thompson's arrest, the government seized $320,055.25 in United States currency from Thompson. Thompson and the other defendants were subsequently indicted. Thompson plead guilty without a plea agreement. The conspiracy lasted fifteen years, involving heroin, crack, cocaine and marijuana. Thompson for several years was the sole "king" or leader of the conspiracy, which involved the sale of drugs throughout Chicago. Leadership was later divided among three defendants, Thompson being one of the three. After a lengthy sentencing hearing, I sentenced Thompson to 540 months in the Bureau of Prisons. I ordered him to pay a fine of $100,000.
A year after he was sentenced, on March 3, 2008, Thompson filed a motion under Fed. R. Crim P. 41(g), seeking return of the cash noted above. Thompson also sought return of other property seized from him at the time of his arrest, including a 2001 Ford Excursion vehicle; parcels of real property; computer hardware and software, financial documentation, electronics equipment and photographs.
The government initially stated that it was prepared to release a portion of the money to Thompson -- $310,180.00 (plus interest) and the $1,100 seized from his person at the time of his arrest. However, the government refused to return the two remaining amounts -- $5,363.00 and $3,412.25 -- on the ground that these had been forfeited to the FBI as a result of administrative proceedings. The government stated that it could not return the Ford Excursion because it had handed the vehicle over to Ford Motor Credit, which had a lien against the vehicle. Similarly, the government stated that it had released the parcels of real property seized from Thompson and thus could not return them. Finally, the government stated that it wished to retain possession of the other items of property in light of the fact that Thompson had appealed from his sentence to the Seventh Circuit and the items still possessed potential evidentiary value.
On August 15, 2008, the government sent a stipulated agreement to Thompson for the return of the $310,180.00 (plus $47,186.25 in interest). Thompson refused to sign the stipulation, claiming that he was entitled to $322,975.00 (which included not only the $310,180.00, but also the other amounts that had been seized). In addition, he claimed that he was entitled to $64,595.00 in interest. Thompson further objected to the government's proposed stipulated agreement on the ground that it made no provision for the return of the other property he sought to recover.
Thompson conveyed these objections in a letter to the government dated August 25, 2008. After receiving no answer, he sent a series of compromise proposals. When the government eventually responded to Thompson's letters, it explained that it had learned during the intervening period that Thompson still owed roughly $98,500 of his $100,000 fine, and that he had an outstanding debt of $218,797.48 in unpaid taxes to the IRS, and that the IRS had filed a jeopardy assessment against his property. As a result, the government stated, Thompson was no longer entitled to the return of the money.
During the briefing and hearings related to Thompson's Rule 41 motion, I observed that the $300,000-plus in cash had not been disclosed as part of Thompson's assets in his Presentence Investigation Report ("PSR"). See United States v. Thompson, No. 04 CR 464-1, 2009 WL 235356 (N.D. Ill. Jan. 30, 2009). Thompson did not provide a financial affidavit at the time, and the Probation Department, apparently without any input from the government, put together an estimate from an earlier pretrial services report. At sentencing, the subject of funds taken from Thompson was discussed, but it was never clear that the government actually had in its possession over $300,000 that Thompson claimed was his. Thompson produced no evidence to refute the government's evidence that the conspiracy made massive amounts of money over its fifteen-year history.*fn1 The parties offered conflicting explanations for the government's failure to move for forfeiture of the money at sentencing on the basis that the $300,000-plus in cash, apparently all in small bills found at Thompson's residence, constituted drug proceeds. Thompson insists that he and the government had entered into a verbal agreement according to which he agreed to plead guilty in exchange for the government's agreement not to seek forfeiture of the seized funds. The government denies having entered into any such agreement and instead maintains that it simply "dropped the ball" in neglecting to seek forfeiture of the cash.
Given that Thompson's appeal of his sentence was pending before the Seventh Circuit at the time, I denied Thompson's Rule 41(g) motion as premature. Id. at *3. On September 29, 2009, the Seventh Circuit affirmed Thompson's sentence, see White, 582 F.3d at 807, and on January 30, 2009, Thompson renewed his Rule 41(g) motion.
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 ...