CA10: Even potentially illegally seized evidence may end up subject to a restitution order

Even when a defendant has a claim for his property under Rule 41(g), it may be subject to a restitution order. The manner of seizure under the Fourth Amendment is distinct from the restitution question. United States v. Dang, 2014 U.S. App. LEXIS 3902 (10th Cir. March 3, 2014):

Persons aggrieved by the wrongful seizure of their property, including cash, by law enforcement authorities may file a motion for return of property under Fed. R. Crim. P. 41(g) (formerly 41(e)). See id. (permitting a “person aggrieved by an unlawful search and seizure of property or by the deprivation of property [to] move for the property’s return.”). Even when a defendant under an order of restitution has asserted a claim under Rule 41(g) and has established ownership of the property, however, funds in the government’s hands may be applied instead to his restitution obligation, because an order of restitution creates a lien against the defendant’s property that can be enforced against the property in the government’s possession. United States v. Mills, 991 F.2d 609, 612-13 (9th Cir. 1993); cf. United States v. Duncan, 918 F.2d 647, 653-54 (6th Cir. 1990) (approving denial of 41(e) motion and use of funds instead to pay monetary penalties). But see United States v. Kaczynski, 416 F.3d 971, 974 n.5 (9th Cir. 2005) (noting use of restitution lien “to defeat a defendant’s claim of ownership,” was appropriate in case where “the government has already lawfully seized the property” (emphasis added)). A similar restitution lien existed “on all property and rights to property” owned by Mr. Dang. 18 U.S.C. § 3613(c).

The issue of whether the deputy marshals violated the Fourth Amendment is distinct from the appropriate disposition of the cash seized. The manner in which the government came into possession of the cash does not govern whether the cash could be applied to Mr. Dang’s restitution obligation.