UNITED STATES
DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MISC. NO. 03-60034-CR-HURLEY
UNITED STATES
OF AMERICA
vs.
CENTURY EXPRESS
VAN LINES,
BORIS GAVERGUN,
a/k/a "Bob Gordan,"
JENNY SHENAIDER,
a/k/a "Jenny Shneider,"
and "Jenny Schneider,"
AVISHAG SIMON,
a/k/a "Shugi Simon,"
ATALYA YASSOOR SHIMONOV,
ELIYAHU SHIMONOV,
a/k/a “Eliahu Shimonov,”
and a/k/a "Eli,"
SHAI OREN, and
GASTON SALEME,
a/k/a "Tony,"
Defendants.
_____________________________/
motion for return
of property under
federal rule of criminal procedure 41(g)
Movant, [INSERT
YOUR NAME], appearing pro se, hereby files this Motion for Return
of Property Under Federal Rule of Criminal Procedure 41(g) (formerly
Fed. R. Crim. P. 41(e)), and in support thereof states:
1. On [INSERT DATE], the moving company, [INSERT NAME OF MOVING COMPANY],
(hereinafter “moving company”) picked up my personal property
as described in the attached affidavit in support of this motion,
in order to move my property to my new home.
2. In accordance with my agreement with the moving company, I paid
the moving company $[INSERT TOTAL AMOUNT OF MONEY PAID TO MOVING COMPANY]
for them to deliver my personal belongings from [INSERT ADDRESS, CITY,
AND STATE OF FORMER HOME] to my new home at [INSERT ADDRESS, CITY,
AND STATE OF NEW HOME].
3. The moving company failed to deliver my personal property in the
manner upon which we had agreed.
4. Subsequently, in relation to a criminal action, the United States
executed a search warrant at the location where the moving company
was keeping my personal property and seized that property. I believe
that the United States is in possession of my personal property.
5. In support of this motion, I have filed the attached affidavit
executed under penalty of perjury, asserting that:
a. The moving company took possession of my personal property in order
to move it to my new home, on or about [INSERT DATE MOVING COMPANY
TOOK POSSESSION OF YOUR BELONGINGS], but has not returned the property
to me.
b. Because the United States now has possession of my personal property
I am an aggrieved person under Fed. R. Crim. P. 41(g).
c. The property that the moving company took possession of and that
is now in the possession of the United States is my personal property
and is owned by me.
d. I agree to make any reasonable accommodations required by the Court
to protect both the law enforcement interests of the United States
and the rights of the moving company. These accommodations may include,
but are not limited to, testifying at any court proceeding, providing
items of property and/or photographs and other related documentation.
6. The United States does not object to the filing of this motion.
MEMORANDUM OF LAW
7. Federal Rule of Criminal Procedure 41(g) (formerly 41(e)) states
as follows:
Motion to Return Property. 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 proceedings.
Fed. R. Crim.
P. 41(g). Under this section, I am entitled to the return of my personal
property.
8. Further, as evidence in support of this motion I have attached
an affidavit executed by me under penalty of perjury that sets forth
my assertions that the property formerly in possession of the moving
company, and now under the control of the United States and this Court,
is my personal property.
9. This affidavit is sufficient to meet the burden established by
Fed. R. Crim. P. 41(g). See United States v. Potes-Ramirez, 260 F.3d
1310, 1314 (11th Cir. 2001) (government failed to meet burden in response
to motion for return of property where no affidavit filed).
Conclusion
WHEREFORE, for all of the reasons explained above, this motion should
be granted and my personal property returned to me.
By:
[SIGN ON ABOVE LINE & INSERT YOUR NAME HERE]
[INSERT YOUR ADDRESS]
[INSERT YOUR TELEPHONE NO.]
[INSERT FAX NO. IF YOU HAVE ONE]
[INSERT E-MAIL ADDRESS IF YOU HAVE ONE]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Motion
for Return of Property Under Federal Rule of Criminal Procedure 41(g)
was delivered by United States mail this [INSERT DATE YOU MAIL THIS
MOTION] to: Assistant United States Attorney Eileen M. O'Connor 500
East Broward Blvd., Ste 700, Fort Lauderdale, Florida 33394; and [INSERT
NAME AND ADDRESS OF MOVING COMPANY].
[SIGN ON ABOVE LINE & INSERT YOUR NAME HERE]
[YOU MUST MAIL
THE ORIGINAL MOTION, AFFIDAVIT AND ATTACHMENTS AS WELL AS ONE COPY
OF THOSE DOCUMENTS TO THE U.S. DISTRICT COURT, 701 Clematis Street,
West Palm Beach, FLORIDA 33401 AND ALSO MAIL COPIES TO EACH OF THE
PARTIES LISTED ABOVE]
AFFIDAVIT
Before me, the
undersigned, personally appeared [INSERT YOUR NAME], being duly sworn,
deposes and states:
1. My name is [INSERT YOUR NAME], I am over the age of 21 and reside
at [INSERT YOUR ADDRESS].
2. Because I was moving, I entered into an agreement with [INSERT
NAME OF MOVING COMPANY] (hereinafter “moving company”).
[ATTACH COPY OF WRITTEN CONTRACT IF APPLICABLE]
3. I paid the moving company $[INSERT TOTAL AMOUNT OF MONEY PAID TO
MOVING COMPANY]. [ATTACH COPIES OF ANY RECEIPTS GIVEN TO YOU BY MOVING
COMPANY IF APPLICABLE].
4. On [INSERT DATE MOVING COMPANY PICKED UP YOUR PERSONAL BELONGINGS],
the moving company took possession of my personal property and has
not yet returned the property to me.
5. Subsequently, I became aware that the United States had executed
a search of the location where the moving company had stored my personal
property and had seized that property.
6. The personal property includes the following items: [INSERT A DESCRIPTION
OF THE PROPERTY].
7. The property which the moving company took possession of and which
is now in the possession of the United States is my personal property
and is owned by me.
8. I agree to make any reasonable accommodations required by the Court
to protect both the law enforcement interests of the United States
and the rights of the moving company. These accommodations include,
but are not limited to, testifying at any court proceeding, providing
items of property and/or photographs and other related documentation.
FURTHER YOUR AFFIANT SAYETH NAUGHT.
______________________________________
[INSERT YOUR NAME & SIGN IN PRESENCE OF NOTARY PUBLIC]
Sworn to and subscribed before me
this _____ day of _____________, 2003.
_________________________________
NOTARY PUBLIC
My commission
expires:
