United States v. Shigemura
2011 U.S. App. LEXIS 25209
| 10th Cir. | 2011Background
- In 2009, law enforcement stopped Defendant, discovering five loaded handguns, a rifle, and $62,368.93 in cash, leading to a firearms and drug-related indictment and conviction.
- A seizure warrant was issued for the $62,368.93 as money furnished or intended to be furnished in exchange for controlled substances under 21 U.S.C. § 881(a)(6).
- At sentencing, the district court found the trip was for illegal drug dealing and that the funds were transported in connection with a drug felony, applying a firearm-in-connection enhancement (reaffirmed on appeal in Kitchell).
- The FBI issued notice of the administrative forfeiture and Defendant did not timely contest the forfeiture; he did file a petition for remission or mitigation, which the FBI denied.
- Fourteen months later, Defendant filed a Rule 41(g) motion seeking return of $44,853.39 (his claimed portion) and other personal property, which the district court denied for lack of jurisdiction.
- The government conceded that the personal property seized on arrest may be recoverable under Rule 41(g), and the case was remanded to determine possession and other issues related to that property.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 41(g) motion was jurisdictionally barred for the forfeited cash | Government contends lack of administrative contest defeats jurisdiction under Deninno. | Defendant seeks equitable relief notwithstanding administrative defects. | Jurisdiction lacking for the forfeited cash; remand limited to personal property issues. |
| Whether remission/mitigation petitions bar merits review of the 41(g) claim | Government argues petitions are discretionary and cannot be merits-reviewed. | Defendant argues due process or procedural issues undermine forfeiture review. | Remission/mitigation petitions do not permit merits review; focus remains on procedural compliance. |
| Whether personal property seized at arrest is recoverable under Rule 41(g) | N/A (primarily Government opposes recovery for non-forfeiture items). | Items not included in forfeiture may be recoverable; possession status unclear. | Remand to address the legality and factual questions, starting with whether the items are in federal possession. |
Key Cases Cited
- United States v. Deninno, 103 F.3d 82 (10th Cir. 1996) (focuses on jurisdictional requirements for 41(g) challenges)
- Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731 (D.C. Cir. 2001) (remission/mitigation discretionary; procedural compliance matters)
- Clymore v. United States, 245 F.3d 1195 (10th Cir. 2001) (presumption of right to return post-criminal proceedings; government must show legitimate reason to keep)
- Ibarra v. United States, 120 F.3d 472 (4th Cir. 1997) (petition for remission vs. contesting forfeiture; distinction between innocence claim and merits review)
- United States v. Copeman, 458 F.3d 1070 (10th Cir. 2006) (equitable relief standards for Rule 41(g))
- United States v. Howell, 425 F.3d 971 (11th Cir. 2005) (de novo review of questions of law relating to Rule 41(g))
- United States v. Kitchell, 653 F.3d 1206 (10th Cir. 2011) (affirming enhancements and related forfeiture context on appeal)