United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge.
before the Court is Gregory Frank Sperow's
(“Sperow”) Motion for Return of Property Pursuant
to Rule 41(g) (Dkt. 1207). Having reviewed the Motion
together with the Government's Response (Dkt. 1210),
Sperow's Reply (Dkt. 1219), the parties' respective
supporting affidavits, the criminal record, and the record in
the related 28 U.S.C. § 2255 proceeding in Case No.
1:12-cv-00158-BLW, the Court enters the following Order
granting the Motion in part and denying in part.
19, 2006, Sperow was indicted by a federal grand jury in the
District of Idaho along with eleven other individuals and
charged with drug trafficking, money laundering, and related
forfeitures. Indictment, Crim. Dkt. 1. Sperow and
five others were also charged with operating a continuing
criminal enterprise (primarily involving marijuana) from 1975
through June 16, 2006, in over twenty states. Id.
The 196-page indictment included 98 predicate acts in
connection with the criminal enterprise count. Id.
his approximately thirty years of criminal activity, Sperow
was convicted of drug trafficking charges in the districts of
New Mexico, Southern California, and Oregon and sentenced to
terms of incarceration in each case. Prior to the Oregon
conviction, he had been a fugitive for eight years living
under an assumed identity. His drug trafficking and money
laundering activities continued during his fugitive years. He
was arrested on May 26, 2004, in Orinda, California, on a
District of Oregon warrant.
many unsuccessful pre-trial challenges, Sperow ultimately
pleaded guilty to certain charges in the then pending Second
Superseding Indictment in return for several concessions by
the Government. More specifically, he pleaded guilty pursuant
to a Federal Rule of Criminal Procedure 11(c)(1)(C) binding
Plea Agreement to conspiracy to distribute/possess with
intent to distribute controlled substances in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count
Two); conspiracy to launder money in violation of 18 U.S.C.
§ 1956(h) (Count Three); drug forfeiture pursuant to 21
U.S.C. § 853(a)(1) and (2) (Count Seven); and
money-laundering forfeiture pursuant to 18 U.S.C. §
982(a)(1) (Count Eight). Amended Plea Agreement,
Crim. Dkt. 666. Counts Seven and Eight sought forfeiture
of cash proceeds of $16, 000, 000 and the property described
in Count Six which included thirteen parcels of real
property, thirteen bank accounts, six conveyances including
motor vehicles and aircraft, currency, computer and hard
drive, and the property and proceeds of ten businesses.
1, 2009, the Court imposed a sentence of 181 months on each
of Counts Two and Three to run concurrently.
Judgment, Dkt. 883. His conviction and sentence were
upheld on appeal. USCA Mem. Dec., Dkt. 1130. On
March 30, 2015, the Court dismissed Sperow's timely filed
§ 2255 Motion on the merits and declined to issue a
certificate of appealability. Mem. Dec. and Order,
Case No. 1:12-cv-00158-BLW at Dkt. 61. On July 9, 2015, the
Ninth Circuit denied Sperow's request for a certificate
of appealability. USCA Order, Id. at Dkt.
65. On September 18, 2015, the Ninth Circuit denied his
motion for reconsideration en banc. Id. at Dkt. 66.
Finally, on March 21, 2016, the United States Supreme Court
denied Sperow's petition for a writ of certiorari.
Ltr. from Sup. Ct., Id. at Dkt. 68.
time Sperow filed the pending Rule 41(g) Motion and the
Government filed its Response, the § 2255 proceeding was
still pending. Subsequently, the Supreme Court denied his
petition for a writ of certiorari, and Sperow's
conviction became final.
fully explained in his Motion, Sperow had first sought in the
District of Oregon to have property removed from his
apartment, truck, and person returned to him. Motion
at 2-3. He did so by seeking to enforce a general order
issued by that court regarding the return of his property.
The district court found that the government had complied
with the general order “to the extent reasonably
possible” or, alternatively, that the order was moot.
Sperow appealed. On June 25, 2014, the Ninth Circuit issued a
memorandum decision affirming the district court. The court
found that “his property was transferred to Idaho for
use in his criminal prosecution there or returned to federal
officials in California” where the property had been
seized. United States v. Sperow, 581 Fed.Appx. 641,
642 (9th Cir. 2014). The court concluded, “Our
disposition is without prejudice to Sperow filing a new
request for return of his otherwise non-forfeited,
non-contraband property in his criminal case in Idaho or any
other appropriate venue.” Id.
states that as of the filing of his pending Rule 41(g)
Motion, he had never been provided a complete inventory of
his seized non-contraband, non-forfeited property being held
by the Government and has not been advised where it is being
stored. Motion at 5. He then provides his own
inventory of items seized in California subsequent to his
arrest. Id. at 6-8. The list is extensive and will
be addressed more specifically below as Sperow Inventory,
paragraphs 1-22, Id. However, generally speaking,
the property includes (1) contents contained in the cab of
his Ford F-250 truck or in the cross-cab toolbox at the time
of his arrest and the seizure of his truck; (2) contents
seized from his apartment at the time of his arrest; (3)
papers and business records seized in Aptos, California; (4)
contents seized from Maxair Aviation; (5) contents contained
in a seized Cessna U206; and (6) contents contained in a
seized Cessna 182.
claims that the Government has not followed proper procedure
or protocol with respect to the seized items, and they have
not been declared contraband. Motion at 9. In his
supporting Declaration, Sperow details his observations of
what was seized at the time of his arrest and contends that
he was never provided with a copy of a search warrant for the
search of his truck. Sperow Declaration, Dkt.
1207-1. He alleges that he was advised by Alameda County Jail
personnel that his truck had been returned absent personal
belongings and tools. He then provides a detailed inventory
of what he claims was in the truck and cab. He follows with a
detailed inventory of the contents of his aircraft hangars,
aircraft, apartment, and his parents' residence.
Response, the Government contends that of the various
categories of items sought, only one group (Sperow Inventory,
paragraph 1) can be returned; namely, the Olympus SLR camera,
black Tamrac camera bag, attached 35-180 mm zoom lens, and
unattached super wide angle Macro lens. Relying on the
Affidavit of Gregory E. Gleason, the Government further
contends that it cannot release the other items for various
reasons including that they are not within the custody of the
United States in the District of Idaho, they must be retained
as evidence pending conclusion of Sperow's challenges to
his convictions and sentence, or he has no standing to
recover certain items. With regard to the return of cash,
coins, or other items of value, the Government contends that
these items were either returned “early on, ”
forfeited, or never seized, and in any event would have been
sought to satisfy the $6 and $5 million forfeiture money
judgments listed in his Preliminary Order of Forfeiture (Dkt.
872) or as substitute assets if not directly forfeitable.
Government noted in its Response that despite agreeing in the
Plea Agreement to forfeit properties and to assist in the
recovery of assets, Sperow has “continuously fought
enforcement of the forfeitures he agreed to.”
Response at 4.
in his Reply, Sperow again requests a complete inventory of
property seized in connection with the Oregon or Idaho cases
“and any cases that were filed in the Northern, Central
or Southern Districts of California where property was
taken.” Reply at 1. He challenges the Gleason
Affidavit on the grounds that it is “unsigned”
and lacking in specificity as to evidentiary value and renews
his request for an inventory and a chain of custody log.
Id. at 2-3. He alleges that the seizure of property
from his truck, hangars, and aircraft was illegal.
Id. at 5. And he submits the Affidavit of Bruce
Allen Borjesson in support of his claim regarding the
“missing tools” from the cross-cab toolbox that
conflicts with the Gleason Affidavit which, he argues,
entitles him to an evidentiary hearing. Id. Sperow
concludes by requesting the Gleason Affidavit to be stricken
as an unsigned affidavit. Id. at 7.
1944, Rule 41 of the Federal Rules of Criminal Procedure has
provided an avenue for individuals seeking the return of
seized property. See 3A Charles Alan Wright, et
al., FEDERAL PRACTICE AND PROCEDURE: CRIMINAL §
690 (4th ed. 2016). Rule 41 addressed motions to return
property in subdivision (e) until a 2002 revision
redesignated that provision as subdivision (g). Id.
Case law interpreting former Rule 41(e) is generally
applicable to the current Rule 41(g). Id. See
also De Almeida v. United States, 459 F.3d 377, 380 n.2
(2d Cir. 2006) (noting that redesignating the provision from
(e) to (g) did not involve substantive any change).
now reads, Rule 41(g) provides that A[a] person aggrieved by
an unlawful search and seizure of property or by deprivation
of property may move for the property's return.”
Fed. R. Crim. P. 41(g). The motion is to be filed in
the district court where the property was seized, and
“the court must receive evidence on any factual issue
necessary to decide the motion.” Id. The rule
provides for return of property in possession of the
government upon a proper showing, but it does not allow for
damages for property no longer in its possession. See
Ordonez v. United States, 680 F.3d 1135, 1138-40 (9th
Cir. 2012) (joining eight other circuits holding that
sovereign immunity bars an award of damages where the
property cannot be returned).
there are no pending criminal proceedings at the time a
motion is filed under Rule 41(g), the motion is treated as a
civil complaint governed by the Federal Rules of Civil
Procedure. United States v. Ibrahim, 522 F.3d 1003,
1007 (9th Cir. 2008) (citing United States v.
Ritchie, 342 F.3d 903, 906-07 (9th Cir. 2003)). If a
court cannot decide the matter on the pleadings, then it
should first convert the government's opposition into a
summary judgment, then determine whether the government had
met the Rule 56(c) standard, and, if not, then “go
forward with additional proceedings consistent with the
Federal Rules of Civil Procedure.” Id. at 1008
(citing Taylor v. United States, 484 F.3d 385,
387-88; 389-990) (5th Cir. 2007)). “In ruling on the
[Rule 41(e)] motion, the court must take into account all
equitable considerations.” United States v.
Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987)
(citations omitted). When a trial is complete, A[t]he person
from whom the property is seized is presumed to have a right
to its return, and the government has the burden of
demonstrating that it has a legitimate reason to retain the
property.'" Id. at 1367. See also
United States v. Kriesel, 720 F.3d 1137, 1144 (9th Cir.
2013) (A. . . Rule 41(g) motion should presumptively be
granted if the government 'no longer needs the property
for evidence.'") (citation omitted). “A
district court has both the jurisdiction and the duty to
return the contested property >once the government's
need for it has ended.'" Martinson, at 1370
(citations omitted). Although the presumption is in a
defendant's favor after a criminal proceeding is over,
the government can rebut that presumption by showing that it
has a “legitimate reason” for retaining the
property and that retention of the property is reasonable
taking into consideration all of the circumstances.
United States v. Gladding, 775 F.3d 1149, 1152 (9th
Cir. 2014) (citations omitted). The government easily meets
its burden by demonstrating that the property sought to be
returned is subject to forfeiture. Id. (citing
Martinson, 809 F.2d at 1369; United States v.
Fitzen, 80 F.3d 387, 389 (9th Cir. 1996)).
seeks only the return of “the non-forfeited and
non-contraband property” being held by the Government
in connection with the Oregon case and the Idaho case.
Motion at 1. The Court notes at the outset that any
challenge to the legality of the various searches and
seizures will not be considered. Rule 41(g) is not a vehicle
for such challenges, and a plea of guilty waives any pre-plea
constitutional issues. See Martinson, 809 F.2d at
1369 (the legality of the search is no longer an issue).
See also Stevens v. United States, 530 F.3d 502, 506
(7th Cir. 2008) (defendant may not use Rule 41(g) to
challenge his conviction); United States v. Penry,
2013 WL 2378577 at *4 (10th Cir. 2013) (finding no legal
precedent stating that a defendant can collaterally challenge
the circumstances surrounding a search and seizure through a
post-conviction Rule 41(g) motion).
mentioned above, the Government submitted its Response while
the § 2255 Motion was still pending on appeal at the
Ninth Circuit. Although it is questionable whether the
pendency of a § 2255 motion meets the criteria that a
criminal proceeding is “still pending, ” the
Supreme Court's denial of Sperow's petition for a
writ of certiorari leaves no doubt that his conviction is now
final and his case is not pending. Thus, Sperow is entitled
to the return of any property being held solely to prove the
drug or money laundering. On the other hand, it is clear that
property subject to forfeiture or needed for forfeiture
related issues is not to be returned. Likewise, the District
of Idaho cannot be required to return any property not in its
possession or control.
to Sperow's Inventory, paragraphs 2, 3, 6, 8, 9, 10, and
12, the Government argues that “[m]any of these
categories include direct evidence of Sperow's use of
third-party nominees to conceal his criminal drug and
money-laundering proceeds, and to put his property out of
reach of the federal government, including the use of his
construction business, and evidence of his contacts with
others during the time of his hiding out from law
enforcement.” Response at 5-6.
Government's Response relies primarily on the Declaration
of Gregory E. Gleason, the primary case agent in the Idaho
investigation that culminated in the indictment of Sperow and
his co-Defendants in the District of Idaho. Gleason
Decl. ¶ 4 (Dkt. 1210-1). Agent Gleason was
extensively involved in the investigation of the conspiracy
and throughout trial and post-trial proceedings as well as
the numerous forfeiture actions to date initially as a
Special Agent of the IRS-CI and subsequently as a government
contractor. See generally Gleason Decl. ¶¶
5-10. He reviewed all of the seized evidence currently in the
custody of either the Criminal Division of the IRS or the
USAO for the District of Idaho. Id. at ¶ 11.
important to note that none of the property Sperow seeks was
seized in Idaho or under the control of Idaho agents.
Although challenged by Sperow, the Court also notes that the
Gleason Declaration is, in fact, signed. See District of
Idaho Civil Rule 5.1(j); see also Electronic
Case Filing Procedures 2.F (“ . . . an electronic
document is deemed signed when filed by an attorney, trustee,
judicial officer, deputy clerk or other person authorized by