United States District Court, D. New Mexico
In the Matter of the Search of 2124 Altura Verde Ln. NE, Albuquerque, NM 87110,
MEMORANDUM OPINION AND ORDER
HONORABLE JERRY H. RITTER UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on David Wellington's
Motion for Return of Property Seized Under Warrant (Doc.
6), filed on April 18, 2017. For the reasons that
follow, the Court concludes that it lacks jurisdiction to
consider Wellington's Motion, and so denies it without
case arises from the search of Wellington's home, located
at 2124 Altura Verde Lane, Albuquerque, NM, pursuant to a
warrant issued by United States Magistrate Judge William P.
Lynch on March 10, 2017. See Doc. 2. The affidavit
in support of the warrant remains under seal. See Doc.
5. However, in its response to Wellington's Motion
the government alleges that Wellington and his business
partner “are involved in a conspiracy to defraud the
United States by impeding the IRS's function of seeing
that income is reported and taxes are paid, and to assist
others in committing tax evasion.” Doc. 10 at
2. Apparently, after reviewing the affidavit Judge Lynch
found probable cause to issue the warrant “for the
evidence, fruits and instrumentalities of crimes relating to
violations of 26 U.S.C. § 7201 (Attempt to Evade
Taxes)and 18 U.S.C. § 371
(Conspiracy).” The warrant was executed on the
morning of March 14, 2017. See Doc. 6 at 4. However,
presently, no criminal action is pending against Wellington.
As such, Wellington brings this Motion in equity in the same
case as the warrant was filed for return of the property
seized under it. See generally Doc. 6. In response,
the Government argues the merits of Wellington's Motion.
Doc. 10 at 3-4. However, neither party broaches the
topic of whether this Court, or a magistrate judge
in general, has jurisdiction to entertain Wellington's
Motion. In reviewing the merits, however, the Court has come
to the conclusion that it lacks jurisdiction to consider
Wellington's Motion. As such, the Motion will be denied
Federal Rule of Criminal Procedure 41(g):
A 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
Fed. R. Crim. P. 41(g). “Because a pre-indictment
motion under Rule 41(e) invokes the equitable jurisdiction of
the court, it is technically not a proceeding in a criminal
case.” Matter of Search of Premises Known
as 6455 S. Yosemite, Englewood, Colo., 897 F.2d 1549,
1553 (10th Cir. 1990).
“entertaining a preindictment Rule 41[(g)] motion is an
exercise of equitable jurisdiction which should be undertaken
with ‘caution and restraint.'” Matter of
Search of Kitty's East, 905 F.2d 1367, 1370 (10th
Cir. 1990) (quoting Floyd v. United States, 860 F.2d
999, 1003 (10th Cir. 1998).
authority of a United States magistrate judge is limited by
statute. See 28 U.S.C. § 636. Under subsection
(c)(1) thereof the parties may consent to a magistrate judge
exercising jurisdiction over a civil case, “when
specially designated to exercise such jurisdiction by the
district court or courts he serves.” 28 U.S.C. §
636(c)(1); see also Fed. R. Civ. P. 73(a). No such
designation has taken place in this case, nor have the
parties consented to the undersigned conducting these
proceedings. Compare Roell v. Withrow, 538 U.S. 580,
590 (2003) (permitting an inference of implied consent only
where a litigant was made aware of the need for consent and
the right to refuse it). Of course, the parties might be said
to have consented to the undersigned by virtue of briefing
the merits of Wellington's Motion, but the mere absence
of an objection does not imply consent. In re Search of
Scranton Hous. Auth., 487 F.Supp.2d 530, 536 (M.D. Pa.
2007) (holding that a parties' failure to expressly
object to the magistrate judge's exercise of jurisdiction
did not constitute consent). In the absence of the
parties' consent, the Court is without jurisdiction to
consider Wellington's Motion.
even if the parties' implied consent were valid,
various courts who have analyze the issue have concluded that
ruling on a Rule 41(g) motion is beyond the scope of a
magistrate judge's consent authority under Section
636(c)(1), instead concluding that the same are better
resolved by proposed findings and recommended disposition as
contemplated by Section 636(b)(1)(B). See, e.g. Stuart v.
Rech, 603 F.3d 409, 411 (7th Cir. 2010) (discussing the
limits on a magistrate judge's authority under Section
636(b) and opining in dicta that a motion under Rule 41(g)
should be handled by a report and recommendation); United
States v. Douleh, 220 F.R.D. 391, 395 (W.D.N.Y. 2003)
(analyzing the issue and concluding that a Report and
Recommendation was the proper vehicle by which to resolve
Rule 41(g) Motions); King v. U.S. Drug Enf't
Agency, 2011 WL 3652257, at *3 (N.D.N.Y. Aug. 18, 2011)
(discussing the “precautionary measure, ” of
converting a magistrate judge's Memorandum Opinion and
Order into a Report and Recommendation).
instant Motion was filed in the case created to store the
search warrant issued by Judge Lynch and related materials.
As such, no district judge is assigned to the case who could
review and act upon a magistrate judge's recommendation.
such, the Court concludes that this matter must be dismissed
without prejudice to Wellington re-filing it as a separate
civil action. See In re Search of Scranton Hous.
Auth., 487 F.Supp.2d 530, 533 (M.D. Pa. 2007)
(recharacterizing a Motion for the return of property into a
Bivens action). Alternatively, the Court notes that
Wellington is currently suing the agents he alleges are
responsible for the search in a separate Bivens
action. See Wellington v. Daza et al., 17-cv-0732
KK/LF. To the extent that the rules permit him to do so,
see Fed. R. Civ. P. 15(a)(1), Wellington may amend
his Complaint in that case to state the claim brought here.
final matter, in its response brief the government asserts
that it “has pledged to provide copies of the items
seized.” Doc. 10 at 4 (asserting that,
“[o]nce this is accomplished, it will be Movant's
burden to prove that his lack of access to original documents
causes him irreparable injury.”). Nothing in this Order
should be construed as preventing the government from
providing Wellington copies of the seized items, as it
indicates it will do.