United States District Court, D. Hawaii
In the Matter of the Search of 94-1018 Kaloli Loop, Waipahu, Hawaii 96797 DKW-RT
ORDER DENYING PETITIONER'S MOTION: (1) FOR RETURN
OF PROPERTY; AND (2) TO EXERCISE CONSTITUTIONALLY SECURED
DERRICK K. WATSON JUDGE
October 4, 2018, Petitioner Elvah Miranda filed a Motion for
Return of Property (First Motion), to which the Government
responded on November 9, 2018. Dkt. No. 1; Opp., Dkt. No. 4.
Although the deadline passed without a reply, Miranda did
file a November 20, 2018 "Emergency Motion to Claim and
Exercise Constitutionally Secured Rights and Require the
Presiding Judge to Rule Upon this Motion and Compel All
Public Officers of This Court to Uphold Said Rights Pursuant
to Their Oaths to the Constitution" (Second Motion).
Dkt. No. 5. Miranda's Second Motion seeks relief
identical to her First Motion without offering any additional
reason why such relief should be awarded. Accordingly, the
Court construes both motions as seeking the return of
property, pursuant to Federal Rule of Criminal Procedure
41(g). So construed, both motions are DENIED for the reasons
7, 2018, the Magistrate Judge found probable cause to issue a
search warrant for Miranda's residence, located at
94-1018 Kaloli Loop, Waipahu, Hawaii 96797. Ex. A; Second
Motion at 4. The search warrant application was supported by
the sealed affidavit of a special agent of the Internal
Revenue Service (IRS). Opp. at 2. The application included a
list of items to be seized, including tax documents and
computers. Motion, Ex. A.
13, 2018, the IRS executed the search warrant on
Miranda's residence. Second Motion ¶¶1-15; Opp.
at 3. During the search, several of Miranda's computers
and digital media storage devices were imaged or impounded,
and financial documents and receipts were seized. Ex. A.
Miranda was given an inventory of the seized items along with
a copy of the search warrant. Id.
Tax Court Proceedings
2018, Miranda's spouse, Daniel Miranda, filed a petition
with the United States Tax Court alleging that he had not
received any notice of deficiency or notice of determination
from the IRS. See Ex. B, Tax Court Order, July 20,
2018, ¶1. On August 13, 2018, the Tax Court dismissed
the petition for lack of jurisdiction, pursuant to a motion
to dismiss filed by the IRS. Ex. C. In September
2018, the Tax Court dismissed a nearly identical petition
filed by Elvah Miranda on the same grounds. Second Motion,
Ex. 2. In both cases, the Tax Court determined that there
were no notices of deficiencies or notices of determination
sent to Miranda or her spouse that would confer jurisdiction
on the Tax Court. Id.
appears Miranda believes that the jurisdictional orders from
the Tax Court somehow invalidate or at least vitiate an IRS
criminal investigation that includes the search warrant for
her residence that was executed in June 2018. Because this
apparent belief is patently incorrect, and because Miranda
has provided no other valid reason for the immediate return
of her property, the motions are DENIED.
of property in a criminal case is governed by Fed.R.Crim.P.
41(g), which provides, in relevant part, that “[a]
person aggrieved by an unlawful search and seizure of
property or by the deprivation of property may move for the
property's return.” Rule 41(g) is ordinarily used
to seek the return of property after an indictment is issued.
Federal district courts nonetheless also “have the
power to entertain motions to return property seized by the
government when there are no criminal proceedings pending
against the movant.” Ramsden v. United States,
2 F.3d 322, 324 (9th Cir.1993) (citing United States v.
Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987))
(construing former Fed.R.Crim.P. 41(e), which addressed
motions for return of property). In those instances,
“[t]hese motions are treated as civil equitable
proceedings and, therefore, a district court must exercise
‘caution and restraint' before assuming
jurisdiction.” Id. (quoting Kitty's
East v. United States, 905 F.2d 1367, 1370 (10th
moves for the return of her property seized during the June
2018 execution of a search warrant by the IRS. Motion
¶1. In support of her Motion, Miranda argues that the
IRS' search and seizure was ultra vires (Motion
¶¶1, 4); the IRS did not comply with the Fair Debt
Collection Practices Act (FDCPA) (Motion ¶7); and the
Tax Court's dismissal of Miranda's petition for lack
of jurisdiction indicates that the IRS has no pending action