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UNITED STATES of America, Plaintiff-Appellee, v. Dwayne Keith FITZEN, Defendant-Appellant
Citations: 80 F.3d 387; 96 Daily Journal DAR 3930; 96 Cal. Daily Op. Serv. 2335; 1996 U.S. App. LEXIS 6559; 1996 WL 157197Docket: 95-30178
Court: Court of Appeals for the Ninth Circuit; April 5, 1996; Federal Appellate Court
Dwayne Keith Fitzen appeals the partial denial of his motion for return of property seized during a joint investigation by state and federal agencies that led to his conviction for drug trafficking. The district court held that Fitzen's legal remedy, if any, resided in state court, affirming this decision on appeal. The investigation, initiated by a task force including the IRS, DEA, and local police, resulted in a federal search warrant under which property was seized. Although the government indicated that the seized property was no longer needed as evidence and the Idaho Bureau of Narcotics (IBN) was willing to return all non-contraband property, two exceptions applied: property forfeited under Idaho law and property subject to a state tax levy. The district court ordered the return of the property, excluding those exceptions. Under Federal Rule of Criminal Procedure 41(e), a person can request the return of property that was unlawfully seized, provided they claim lawful possession. A motion is typically denied if the defendant lacks entitlement to the property, it is contraband or forfeitable, or if it remains needed as evidence. In this case, since the government no longer required the property for evidence, Fitzen was presumed entitled to its return unless the government could show a legitimate claim to it. Fitzen's property, subject to an Idaho state tax levy, was properly denied relief under Rule 41(e) by the district court. The Ninth Circuit had previously ruled that an IRS tax levy can defeat a Rule 41(e) motion, a principle also recognized by the Sixth Circuit. The assertion of a tax levy, whether by the IRS or a state entity, indicates an adverse right to possession against the defendant. Similarly, the district court's denial of Fitzen's Rule 41(e) motion was justified as his property had been forfeited by the state. It is established that the federal government can defeat a Rule 41(e) motion by proving the property is subject to federal forfeiture, and in this case, the state's claim sufficed. Distinguishing this matter from prior cases where third-party claims were not established, the court noted that Idaho's forfeiture proceedings confirmed the state's ownership of the property. Rule 41(e) requires that the defendant must be entitled to lawful possession of the property; thus, the government only needed to show that Fitzen was not entitled to such possession, which they successfully did. The court's decision was affirmed unanimously without the need for oral arguments. The district court order indicated it denied the return of property subject to both the tax levy and state forfeiture.