United States District Court, D. Arizona
Honorable Jennifer Zipps United States District Judge
before the Court is Magistrate Judge Lynette Kimmins's
Report and Recommendation (R&R) recommending that the
District Court: (1) release $37, 000 to Zakiriea Abdulkader
Alghaithi; (2) retain the remaining $50, 579 pending
resolution of issues that will inform the Court's
analysis as to whether any of the funds are subject to
reimbursement; and (3) keep the referral of pending matters
with the Magistrate Judge. (Doc. 323.) The United States has
filed an objection to the recommendation that the Court
release funds to Zakiriea. (Doc. 327.) After considering the
R&R and the arguments raised in the United States'
objection, the Court will overrule the objection and adopt
Judge Kimmins's R&R.
reviewing a Magistrate Judge's Report and Recommendation,
this Court “shall make a de novo determination of those
portions of the report . . . to which objection is made,
” and “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C);
see also Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991) (citing Britt v. Simi Valley Unified
Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
Failure to object to a Magistrate Judge's recommendation
relieves the Court of conducting de novo review of the
Magistrate Judge's factual findings; the Court then may
decide the dispositive motion on the applicable law.
Orand v. United States, 602 F.2d 207, 208 (9th Cir.
1979) (citing Campbell v. United States Dist. Ct.,
501 F.2d 196 (9th Cir. 1974)).
a jury trial, Defendant Abdulkader Naji Alghaithi was found
guilty of two counts of conspiracy to commit with intent to
distribute controlled substances and one count of possession
with intent to distribute controlled substances, and
acquitted of conspiracy to commit mail fraud. A jury was
retained to determine whether Defendant's residence at
3975 East Agate Knoll Drive, Tucson, AZ, a 2015 Chevrolet
Spark, and $87, 597 in U.S. currency found at the residence
were subject to forfeiture. The jury concluded that the home
and the vehicle were forfeitable-but not the currency.
December 17, 2018, Defendant filed a notice of lodging and
lodged an order for return of property held in forfeiture,
which the Court construes as a motion for return of property.
(Doc. 270.) The United States responded by filing a request
for a hearing in order to determine whether Defendant's
newly discovered funds should be applied to reimburse the CJA
fund for Defendant's representation during his criminal
trial (Doc. 275), which the Court granted. (Doc. 277.) At the
hearing on March 21, 2019, both Defendant and his son,
Zakiriea Abdulkader Alghaithi, testified that $37, 000 of the
currency belonged to Zakiriea, and should therefore be
released. Zakiriea testified that he had previously filed a
seized asset claim form with the DEA claiming $37, 000 of the
$87, 597 seized. (Exh. 31.) Judge Kimmins found that this
testimony was not refuted by the United States.
person aggrieved . . . by the deprivation of property may
move for the property's return.” Fed.R.Crim.P.
41(g). “Ordinarily, property seized for purposes of a
trial that is neither contraband nor subject to a forfeiture
statute is to be returned to the defendant at the end of the
trial.” United States v. Van Cauwenberghe, 934
F.2d 1048, 1060-61 (9th Cir. 1991). “[W]hen the
property in question is no longer needed for evidentiary
purposes . . . . [t]he person from whom the property is
seized is presumed to have the right to its return, and the
government has the burden of demonstrating that it has a
legitimate reason to retain the property.” United
States v. Martinson, 809 F.2d 1364, 1369 (9th Cir.
the government argues that the funds belonging to Defendant
should be retained in order to reimburse the costs of
Defendant's court appointed counsel pursuant to 18 U.S.C.
§ 3006A(f). See United States v. Bracewell, 569
F.2d 1194, 1197 (2d Cir. 1978) (holding the government was
entitled to retain seized funds for CJA attorney's fees
reimbursement); United States v. Dominguez-Calderon,
No. 07-20099-19, 2010 WL 1424335, at *2 (W.D. Kan. Apr. 5,
2010) (analyzing whether to apply seized funds not subject to
forfeiture to CJA expenses); United States v.
Palenzuela-Mendez, No. 4:14-cr-00031, 2018 WL 6171471,
at *2 (S.D. Ind. Nov. 26, 2018) (same); United States v.
Bell, Nos. 07 C 26, 04 CR 382, 2007 WL 2303587, at *2-3
(N.D. Ill. Aug 9, 2007) (same). Pursuant to the Criminal
Justice Act (CJA),  Defendant was deemed financially unable to
obtain representation and furnished with counsel. The Act
provides, however, that “[i]f at any time after the
appointment of counsel the U.S. magistrate judge or the court
finds that the person is financially able to . . . make
partial repayment for the representation, it may . . .
authorize payment.” See 18 U.S.C. §§
3006A(c), (f); United States v. Lorenzini, 71 F.3d
1489, 1494 (9th Cir. 1995).
order to determine whether funds are available for
reimbursement, the court must consider a defendant's
present ability to repay the funds. United States v.
Danielson, 325 F.3d 1054, 1077 (9th Cir. 2003). In this
case, Defendant's ability to repay funds depends on a
number of issues currently pending consideration-including
whether his wife, Hebah Alghaithi, is entitled to a community
property interest in the forfeited residence, as well as
whether a portion of the seized funds not subject to
forfeiture belong to Ms. Alghaithi, and whether those funds
are available to reimburse CJA expenses. Accordingly, the
Court will adopt the recommendations that the remaining funds
be retained pending resolution of these issues, and that the
District Court keep the referral of these pending matters
with Magistrate Judge Kimmins.
United States contends that Zakiriea does not have a lawful
claim to $37, 000 of the $87, 597 seized, and that all or at
least a portion of those funds are Defendant's and
available for consideration as to whether Defendant is
financially able to reimburse CJA fees. A claimant must prove
the right to lawful possession of seized property. See
Omidi v. United States, 851 F.3d 859, 862-83 (9th Cir.
2017); Ramsden v. United States, 2 F.3d 322, 324
(9th Cir. 1993); United States v. Kama, 394 F.3d
1236, 1238 (9th Cir. 2005). Zakiriea did so here. Both
Zakiriea and Defendant testified at the March 21 hearing that
$37, 000 of the seized assets belonged to Zakiriea. (RT
3/21/19, at 12-14, 19.) Defendant further testified that
money found in the couch, elsewhere in the house, and in a
large stack alongside a note with Zakiriea's name on
belonged to Zakiriea. (RT at 55, 64.) This testimony was
consistent with that provided during Defendant's trial.
(Doc. 290, pgs. 64-66, 69-70.) Finally, Zakiriea lived in the
home from which the currency was seized. (RT at 11.)
United States challenges the sufficiency of the evidence in
support of Zakiriea's claim, but does not demonstrate any
inconsistencies in the evidence supporting his
claim or offer any evidence suggesting that the
funds belong to Defendant or anyone else
instead.Accordingly, the Court finds that Zakiriea
established his ownership of the $37, 000 of the seized
assets. Because the government has not provided any
justification for further retaining Zakiriea's property,
the Court concludes that the Magistrate Judge's
Recommendation as to those funds should be adopted.
ORDERED that the Report and Recommendation ...