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In re Search of 94-1018 Kaloli Loop

United States District Court, D. Hawaii

January 11, 2019

In the Matter of the Search of 94-1018 Kaloli Loop, Waipahu, Hawaii 96797 DKW-RT



         On 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.[1] 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 stated below.[2]


         I. Search Warrant

         On June 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.

         On June 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.

         II. Tax Court Proceedings

         In May 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.

         It 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.


         Return 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 Cir.1990)).


         Miranda 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 ...

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