USA v. Bluearm

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
KATURAH DASHON BLUEARM,
Defendant.
4:22-CR-40040-LLP
ORDER DENYING DEFENDANT’S
MOTION FOR RETURN OF
PROPERTY
DOCKET NOS. 22 & 23
INTRODUCTION
Pending before the court is a motion pursuant to Fed. R. Crim. P. 41(g)
by defendant Katurah Dashon Bluearm seeking the return of $3,000 cash
seized by the government. 	Docket Nos. 22 & 23. 	The government resists the
motion. 	Docket No. 27. 	The district court, the Honorable Lawrence L. Piersol,
referred this motion to this magistrate judge for determination pursuant to 28
U.S.C. § 636(b)(1)(A).
FACTS
Ms. Bluearm was indicted on a charge of conspiracy to distribute 500
grams or more of a mixture and substance containing methamphetamine on
April 5, 2022. 	Docket No. 1. 	She was arrested on April 14, 2022. 	Docket No.
Case 4:22-cr-40040-LLP Document 28 Filed 05/12/22 Page 1 of 6 PageID #: <pageID>

2
19. 	According to Ms. Bluearm, she had $3,000 in cash at the time of her arrest
and law enforcement seized those monies.
She now files a motion seeking the return of that cash. 	Docket No. 22.
Initially, she represented to the court that the money had been seized pursuant
to a search warrant. 	Id. 	When the court requested defense counsel to file a
copy of the search warrant as a part of Ms. Bluearm’s motion, counsel filed an
amended motion clarifying that the money was not seized pursuant to a search
warrant. 	Docket No. 23. 	Rather, the money was seized incident to
Ms. Bluearm’s valid arrest on the arrest warrant in this case. 	Id.
Ms. Bluearm asserts that she won $1,337.50 in gambling on April 9,
2022. 	This assertion is supported by a Form W-2G issued to her from the
Royal River Casino on April 9, 2022, indicating that Ms. Bluearm won the
stated amount while playing a slot machine. 	See Docket No. 23-2.
Ms. Bluearm asserts that $2,000 was received by her on April 4, 2022, from
the Cheyenne River Sioux Tribe as payment under a pandemic relief program.
See Docket No. 23-1 at pp. 1 and 3. 	Thus, Ms. Bluearm asserts she can
demonstrate that the money she had was received from legitimate sources and
was not the proceeds of illegal activity.
The government asserts that the $3,000 was seized pursuant to civil
forfeiture statutes and that any claims Ms. Bluearm might wish to make for the
return of the $3,000 cash must be litigated in that forfeiture action. 	Docket
No. 27.
Case 4:22-cr-40040-LLP Document 28 Filed 05/12/22 Page 2 of 6 PageID #: <pageID>

3
DISCUSSION
Rule 41(g), on which Ms. Bluearm’s motion is premised, provides as
follows:
Any 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.
See Fed. R. Crim. P. 41(g). 	Prior to the 2002 amendments to Rule 41, the
above provision was located in subsection (e) of Rule 41. 	3A Charles A. Wright
& Sarah N. Welling, Federal Practice and Procedure, Criminal § 690 at 243 (4th
ed. 2010). 	Therefore, cases prior to 2002 citing to Rule 41(e) are authoritative
as well as post-2002 cases citing to Rule 41(g). 	Id. 	The Federal Rules of
Criminal Procedure do not apply to civil forfeiture proceedings. 	Fed. R. Crim.
P. 1(a)(5)(B).
The government cites to an Eleventh Circuit case which discusses the
interplay between civil forfeiture proceedings and motions for return of property
under Fed. R. Crim. P. 41(g). 	Docket No. 27 at p. 2. 	The Eleventh Circuit
holds that where a civil forfeiture proceeding exists, motions for return of
property must be made under the umbrella of the civil forfeiture statutes, while
Rule 41(g) is reserved for those circumstances where property is seized outside
the forfeiture process. 	United States v. Bryant, 685 Fed. Appx. 855, 856-57
(11th Cir. 2017). 	A number of other circuits have held that civil forfeiture
proceedings are an adequate remedy at law for a person to dispute the
Case 4:22-cr-40040-LLP Document 28 Filed 05/12/22 Page 3 of 6 PageID #: <pageID>

4
government’s possession of seized property and that Rule 41(g) represents an
equitable remedy which should only be resorted to where the civil forfeiture
proceeding is inadequate to protect the person’s property rights. 	De Almeida v.
United States, 459 F.3d 377, 382 (2d Cir. 2006); United States v. Price, 914
F.2d 1507, 1511 (D.C. Cir. 1990) (per curiam); Shaw v. United States, 891 F.2d
602, 603-04 (6th Cir. 1989); United States v. Currency $83,310.78, 851 F.2d
1231, 1233-35 (9th Cir. 1988).
In In re Harper, 835 F.2d 1273, 1274-75 (8th Cir. 1988), the court noted
that although a defendant was entitled to file a Rule 41(g) motion, the right to
file such a motion did not necessarily mean the district court should grant the
motion. 	Rather, the court noted Rule 41(g) sounds in equity, and a court
should not exercise this equitable jurisdiction except under “extraordinary”
circumstances and that such power “is to be exercised with caution and
restraint.” 	Id. at 1274. 	The court affirmed the district court’s denial of the
defendant’s Rule 41(g) motion where a parallel forfeiture proceeding was
had. 	Id.
In other cases, the Eighth Circuit has held generally that a defendant is
not entitled to return of her property under Rule 41(g) where the property is
“subject to forfeiture.” 	Jackson v. United States, 526 F.3d 394, 397 (8th Cir.
2008); United States v. Vanhorn, 296 F.3d 713, 719 (8th Cir. 2002). 	When a
motion for return of property is made while the criminal prosecution is still
pending, the burden is on the movant to show that they are entitled to lawful
possession of the property, including that the property is not subject to
Case 4:22-cr-40040-LLP Document 28 Filed 05/12/22 Page 4 of 6 PageID #: <pageID>

5
forfeiture. 	United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999). 	If the
motion is made after the conclusion of criminal proceedings, the burden shifts
to the government to show it has a legitimate reason to retain the property. 	Id.
Here, the government asserts that the $3,000 was seized pursuant to the
civil forfeiture statutes. 	As the above cases demonstrate, a movant has no
right to return of property under Rule 41(g) if the property is the subject of
forfeiture proceedings. 	Jackson, 526 F.3d at 397; Vanhorn, 296 F.3d 719.
Because the criminal prosecution in this case is still pending, the burden is on
Ms. Bluearm to demonstrate she has a lawful right to possession of the
property, including proof that the property is not the subject of forfeiture
proceedings. 	Id. 	She has not carried her burden. 	The proper forum for
Ms. Bluearm to litigate her right to possession of the $3,000 at issue is within
the confines of the forfeiture proceedings. 	Ms. Bluearm makes no allegation
that the forfeiture proceedings do not provide her with equitable or just means
to assert her claim or an adequate remedy at law.
Under the civil forfeiture statutes, the government has 90 days to
consider whether to initiate a forfeiture action by filing a complaint. 	18 U.S.C.
§ 983. 	If it does not do so, it must promptly return the property absent an
extension of the 90-day deadline. 	18 U.S.C. § 983(a)(3)(B). 	It has not yet been
90 days since the government seized the property at issue. 	That deadline will
arrive on July 13, 2022. 	Under the law, then, the government has until July
13 to determine whether it will seek forfeiture of the property at issue.
Accordingly, it is hereby
Case 4:22-cr-40040-LLP Document 28 Filed 05/12/22 Page 5 of 6 PageID #: <pageID>

6
ORDERED that Ms. Bluearm’s motion for return of property pursuant to
Fed. R. Crim. P. 41(g) [Docket Nos. 22 & 23] is denied.
DATED this 12th day of May, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
Case 4:22-cr-40040-LLP Document 28 Filed 05/12/22 Page 6 of 6 PageID #: <pageID>