Valenzuela

Filing 8

AMENDED ORDER by District Judge Margaret I. Strickland GRANTING in part 1 Motion for Return of Property (jsq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID VALENZUELA,
Petitioner,
v.

No. 2:24-mc-00026-MIS

UNITED STATES OF AMERICA,
Respondent.
AMENDED ORDER GRANTING IN PART MOTION FOR RETURN OF PROPERTY1
THIS MATTER is before the Court on Petitioner David Valenzuela’s pro se Motion for
Return of Property, ECF No. 1 (Dec. 23, 2024) [hereinafter Motion]. Respondent United States
responded, ECF No. 3 (Jan. 22, 2025). The Court held a hearing on the Motion on March 3,
2025, at which Mr. Valenzuela and counsel for Respondent were present. Upon due
consideration of the parties’ submissions, the record, and the relevant law the Court will
GRANT the Motion in part.
I.

BACKGROUND
Mr. Valenzuela was apprehended by U.S. Immigration and Customs Enforcement agents
in Santa Teresa, New Mexico on or about June 4, 2023. Mot. at 1. At the time of his initial
detention the agents removed several items from Mr. Valenzuela’s person, namely: “a cellular
telephone; a wallet containing personal identification, social security card, and credit cards; and
$1,800 in cash.” Id. Mr. Valenzuela was thereafter arrested, arraigned, and sentenced, and is
currently incarcerated at the Federal Correctional Institution in Texarkana, Texas (“FCI
Texarkana”). ECF No. 1-1 at 2. Mr. Valenzuela originally filed the instant Motion in his criminal
This Amended Order corrects a scrivener’s error in the Court’s Order issued on March 7, 2025, ECF No.
7. Given the limited nature of the amendment, this Order does not restart the clock on the deadlines imposed in the
Court’s initial Order.
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case in the Western District of Texas, No. 3:23-cr-01287-DCG, on December 9, 2024. Mot. at 1.
On December 19, 2024, Judge Guaderrama (the presiding judge in the criminal case) entered an
order transferring the Motion to this Court pursuant to Federal Rule of Criminal Procedure 41(g),
which states that a motion for return of property “must be filed in the district where [it] was
seized.” ECF No. 1-1 at 1-2. The civil action was docketed in this Court on December 23, 2024.
In his Motion, Mr. Valenzuela states that “no order of forfeiture accompanied” the
judgment in his criminal case, nor has he received “any Notice of Intent to Seize, Forfeit, or
otherwise retain” his property. Mot. at 2. His property has not been returned to him. Id. The
Government responded that, per U.S. Customs and Border Patrol’s “internal guidelines,” seized
property remains at the border patrol station for thirty days, and if return of the property is not
requested “it is destroyed due to lack of capacity to hold it for longer.” United States’ Resp.
Def.’s Mot. Return Property at 1, ECF No. 3 [hereinafter Response]. Additionally, the
Government noted, cellular phones are retained as evidence until the case is completed, at which
point they are also “destroyed after 30 days if no one has requested [their] return.” Id. at 2. The
Government contends that Mr. Valenzuela was notified of these policies, id., and attaches to its
Response exhibits purportedly containing Mr. Valenzuela’s signature acknowledging notice, id.
at 3-4. The Government states that Santa Teresa Border Patrol “still possesses [Mr.
Valenzuela’s] drivers license, social security card, and a set of keys,” which will be held for a
further thirty days. Id. at 2. Mr. Valenzuela’s phone, however, has been destroyed by crush. Id.
The Government concludes that “the United States is not in possession of any property that may
be returned to David Valenzuela.” Id.
The Court set a hearing on the Motion, ordered the Government not to “destroy or
otherwise dispose of any of Mr. Valenzuela’s property,” and directed the Government to produce

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at the hearing “a witness (or witnesses) to give a full accounting of all of Mr. Valenzuela’s
property, including what was destroyed and what was retained.” ECF No. 5. At the hearing, held
on March 3, 2025, the Government called Supervisory Border Patrol Agent Luis De Anda to
testify about Mr. Valenzuela’s property. Agent De Anda testified that Mr. Valenzuela’s cell
phone was transferred to prosecutors in the Western District of Texas and held as evidence. He
stated that Mr. Valenzuela’s defense attorney was contacted about retrieving the phone upon
completion of the case, but no response ever came, and the phone was subsequently destroyed.
To Agent De Anda’s knowledge, no attempt was made to contact Mr. Valenzuela in the Bureau
of Prisons about his phone. Agent De Anda further testified that Mr. Valenzuela’s social security
card, driver’s license, and keys are still being held at the Santa Teresa Border Patrol Station,
attached to Mr. Valenzuela’s inventory sheet, and the $1,818 in cash was deposited in and is
being held by the El Paso Sector civil forfeiture office. To retrieve his items, Agent De Anda
testified, Mr. Valenzuela needs to present himself to the Border Patrol Station (for his IDs and
keys) and to the El Paso Sector civil forfeiture office (for his cash). Agent De Anda testified that,
to the best of his knowledge, the money would be held for three years from the date of arrest.
Mr. Valenzuela requested that the approximately $1,800 be sent to him where he is
incarcerated at FCI Texarkana. He noted that given his sentence he may remain incarcerated past
the three-year deadline that Agent De Anda mentioned. Additionally, Mr. Valenzuela’s federal
probation will be supervised by the Western District of Texas in El Paso, and his travel outside
of that district (to New Mexico, for example) may be restricted. Agent De Anda and counsel for
the Government represented that there was no procedure to send Mr. Valenzuela his money and
other property, though they disclaimed full knowledge of the subject. As to Mr. Valenzuela’s cell
phone, the Government argued that the Motion was moot because the phone has been destroyed.

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The Government directed the Court’s attention to the notice documentation, purportedly
containing Mr. Valenzuela’s signature, that it attached to its Response. Agent De Anda did not
testify as to that documentation and the Government did not produce any other foundational
witness to do so.
II.

LEGAL STANDARD
Under Federal Rule of Criminal Procedure 41(g), “[a] person aggrieved by . . . the
deprivation of property may move for the property’s return.” Proceedings on a motion for return
of property pursuant to Rule 41(g) “are civil in nature,” Clymore v. United States, 415 F.3d 1113,
1117 n.4 (10th Cir. 2005), and are “governed by equitable principles,” United States v. Nelson,
190 F. App’x 712, 714 (10th Cir. 2006). Remedies under Rule 41(g) are “available to [the
movant] only if he can show irreparable harm and an inadequate remedy at law.” United States v.
Copeman, 458 F.3d 1070, 1071 (10th Cir. 2006) (alteration in original) (citation omitted). “Once
criminal proceedings have terminated, ‘the person from whom the property was seized is
presumed to have a right to its return, and the government must demonstrate that it has a
legitimate reason to retain the property.” United States v. Shigemura, 664 F.3d 310, 312 (10th
Cir. 2011) (quoting United States v. Clymore, 245 F.3d 1195, 1201 (10th Cir. 2001)). Pursuant to
Rule 41(g), “[t]he district court has both the jurisdiction and the duty to return such property.”
United States v. Warner, No. 19-cr-4275 WJ, 2020 WL 4260613, at *2 (D.N.M. July 24, 2020);
see also United States v. Wilson, 540 F.2d 1100, 1103 (D.C. Cir. 1976) (“[I]t is fundamental to
the integrity of the criminal justice process that property involved in the proceeding, against
which no Government claim lies, be returned promptly to its rightful owner.”).

III.

DISCUSSION
The Government neither contests Mr. Valenzuela’s ownership interest in the property at
issue, nor does it assert any reason it must retain the property. Cf. United States v. Rodriguez4

Aguirre, 264 F.3d 1195, 1205-06 (10th Cir. 2001). Indeed, the Government apparently concedes
that Mr. Valenzuela has the right to return of his property, noting in its Response and at the
hearing that the majority of the property is available for Mr. Valenzuela to claim. The United
States has not initiated any administrative or civil forfeiture action against any of the property at
issue. See Wilson, 540 F.2d at 1104 (“It goes without saying, that if the Government seeks to
forfeit the property a proper proceeding should be instigated to accomplish that purpose. A claim
by the owner for the return of his property cannot be successfully resisted by asserting that the
property is subject to forfeiture.”). Accordingly, the Court holds that Mr. Valenzuela is entitled
to the return of his property.
The Government’s assertion in its Response that “the United States is not in possession of
any property that may be returned to David Valenzuela,” Resp. at 2, is demonstrably false. By
the Government’s own admission, certain of Mr. Valenzuela’s property is currently held by
Santa Teresa Border Patrol and by the Border Patrol El Paso Sector civil forfeiture office—both
offices of the federal government. The United States inarguably is, in fact, in possession of
property that must be returned to Mr. Valenzuela.
A.

Social Security Card, Driver’s License, Keys, and $1,818 Cash2

With respect to Mr. Valenzuela’s social security card, driver’s license, and keys, the
Government’s making them available for Mr. Valenzuela to retrieve at Santa Teresa Border
Patrol for another thirty or sixty days does nothing to actually effectuate their return. As Mr.
Valenzuela pointed out at argument, (1) he is currently incarcerated and will be for some months
to come, and (2) even after his release, he may be unable to travel to New Mexico under the

2
At the hearing, Agent De Anda testified that Border Patrol does not have custody of any wallet or credit
cards and no such items were inventoried during arrest according to the Inventory Sheet. Mr. Valenzuela did not
contest that representation. Accordingly, the Court will assume that the Government is not (and was never) in
possession of such items.

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conditions of his federal supervised release in El Paso. Accordingly, the Court directs the
Government to mail Mr. Valenzuela’s social security card, driver’s license, and keys to an
individual of Mr. Valenzuela’s choice.3 Mr. Valenzuela shall file a letter on the docket
designating an individual (with a mailing address in the continental United States) who he
authorizes to receive these items on his behalf. The letter shall include the individual’s name and
mailing address. The Government is instructed to send Mr. Valenzuela’s social security card,
driver’s license, and keys to the individual at the address provided.
As to the approximately $1,800 in cash being held at the El Paso Sector, the Court orders
the Government to send those funds to Mr. Valenzuela’s account at FCI Texarkana where he is
currently incarcerated. Although counsel for the Government and its witness claimed that the El
Paso Sector is unable to send the funds, or they are at least unaware of a procedure to do so, the
Court notes that U.S. Attorney’s Offices across the country have apparently found methods to
send money and return property via mail pursuant to Rule 41(g) motions.4 The Court is confident
that the Government can accomplish the task the Court has ordered. Should a problem arise, the
Government may file something to bring it to the Court’s attention.
3

The Court assumes that Mr. Valenzuela is unable to receive these items himself at FCI Texarkana. If,
however, the Court is mistaken in this assumption, and the Bureau of Prisons is able to hold these items for Mr.
Valenzuela until his release, the Government should send the items to Mr. Valenzuela himself.
4

See, e.g., United States v. Manzo, No. 16cr638-LAB-1, 2017 WL 3478713, at *1 (S.D. Cal. Aug. 14,
2017) (ordering the government to send money due to be returned to the defendant “as a check made payable to
[Defendant]” to a person of the defendant’s choice); United States v. Contreras, No. 07-20099-18, 2010 WL
2427408, at *2 (D. Kan. June 11, 2010) (noting that the government “has requested that the Wyandotte County
Sherriff’s Office, as custodian of [the defendant]’s money, send the funds to be held for him at FCI Fort Worth”);
see also, e.g., United States v. Chikeluba, No. 1:10-cr-0196-WBH, 2013 WL 1337374, at *2 (N.D. Ga. Mar. 28,
2013) (directing the government to send certain items of movant’s property to a third party and to send other items
to the Nigerian Consulate); Shirazi v. United States, No. 02 C 3220, 2002 WL 31055964, at *2 (N.D. Ill. Sept. 16,
2002) (noting that because “[the defendant] is serving his prison term,” he “should communicate through his
attorney where the government should send” the items to which he was entitled return); United States v. Jones, No.
2:14cr132, 2016 WL 8933629, at *3 (E.D. Va. July 26, 2016) (discussing the government’s potential shipping of
items seized in Colorado to a location in Florida where the incarcerated defendant’s mother could retrieve them);
United States v. Madkins, No. 3:08-cr-343-J-34MCR, 2015 WL 1523993, at *1 (M.D. Fla. Apr. 2, 2015) (ordering
the government to mail certain items to the defendant); Order at 6-7, United States v. Santome, No. 8:18-cr-524WFJ-CPT (M.D. Fla. May 5, 2023), ECF No. 155 (directing the government to mail incarcerated defendant’s
property from Florida to an individual in Texas identified by defendant).

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B.

Cell Phone

Mr. Valenzuela’s cell phone presents a different issue. According to the Government, Mr.
Valenzuela’s cell phone has been destroyed. At the outset, the Court notes that the Government
arguably has failed to meet its evidentiary burden demonstrating that the phone was, in fact,
destroyed. Although the Government attached to its Response an exhibit purporting to document
the destruction, the Government did not do anything to authenticate that document, such as by
putting on a witness to do so at the hearing, filing a sworn affidavit, or verifying its pleading. See
United States v. Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001) (“Although the
government alleges in its pleadings that the property sought by [the defendant] was destroyed,
these pleadings are not verified and no supporting affidavits have been filed. There is no
evidence in the record that [the defendant]’s property was destroyed. Therefore the government
has not met its burden in this case[.]”). However, in the interest of avoiding further delay in
returning Mr. Valenzuela’s property, the Court will assume the phone has been destroyed as the
Government alleges.
The Court is extremely troubled by the apparent elevation of U.S. Customs and Border
Patrol “internal guidelines” over Mr. Valenzuela’s Fifth Amendment rights—as noted above, no
forfeiture action was ever commenced regarding Mr. Valenzuela’s phone, and yet the
Government took it upon itself to destroy it. Nonetheless, the Court is constrained in the relief it
may presently offer—it cannot order the return of an item of property that no longer exists. The
Tenth Circuit has held that “sovereign immunity bars monetary relief in a Rule 41[(g)]
proceeding when the government no longer possesses the property.” Clymore, 415 F.3d at 1120.
However, as contemplated by the Tenth Circuit, the Court will grant Mr. Valenzuela an
opportunity to assert an alternative claim for monetary relief as to his phone. See United States v.
Soto-Diarte, 370 F. App’x 886, 887-88 (10th Cir. 2010) (noting that should the district court
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determine on remand that the government no longer possessed certain items, it “could grant the
movant an opportunity to assert an alternative claim for monetary relief, an approach that is
particularly appropriate in the case of pro se movants such as [the defendant]” (citing United
States v. Hall, 269 F.3d 940, 943 (8th Cir. 2001))); see also Clymore, 415 F.3d at 1120 n.7.
“Other statutes authorize money damages against the United States, such as the Tucker Act, 28
U.S.C. § 1491, the Little Tucker Act, 28 U.S.C. § 1346(a)(2), and the Federal Tort Claims Act,
28 U.S.C. §§ 2671-81,” and “[a] cause of action may accrue under one or more of those statutes
when the government discloses that it has lost, destroyed, or transferred property that would
otherwise be subject to a Rule 41[g] order to return,” in which case “the government’s sovereign
immunity from an award of money damages may well be waived.” Hall 269 F.3d at 943. See
also, e.g., Jenkins v. United States, 71 F.4th 1367, 1375 (Fed. Cir. 2023); United States v.
Blankenship, No. 88-264-FR, 1989 WL 113032, at *1 (D. Or. Sept. 12, 1989).
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS in part Petitioner David Valenzuela’s
Motion for Return of Property, and ORDERS the following:
•

The Government shall send Mr. Valenzuela’s social security card, driver’s license, and
keys to an individual of Mr. Valenzuela’s choice, as described more particularly above,
within thirty (30) days of this Order.

•

The Government shall send Mr. Valenzuela’s $1,818 to his account at FCI Texarkana
(Marshal #98685080), where he is presently incarcerated, within thirty (30) days of this
Order.

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•

Mr. Valenzuela is granted leave to file a new motion asserting any other claim for relief
he may have as regards his destroyed cell phone, within sixty (60) days of this Order.

MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE

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