ERHC Energy Inc (ERHE)

[rocky822]

FED. R. CRIM. P. 41(g). The Fifth Circuit recognizes that the district court may
entertain a “pre-indictment motion for return of property if the government callously
disregarded a search warrant victim’s constitutional rights.” See United States v. In re
Search of Law Office, Residence, and Storage Unit Alan Brown, 341 F.3d 404, 409
(5th Cir. 2003). In Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975), the Fifth Circuit
laid out a non-exhaustive list factors a court should consider when deciding whether or not to exercise pre-indictment jurisdiction over a claim for return of property. The
factors a court should consider include: 1) whether the Government displayed callous
disregard for constitutional rights; 2) whether the movant has an individual interest or
need in the property; 3) whether the movant would suffer irreparable injury without
return of the property; and 4) whether the movant has an adequate remedy at law. Id.
at 1243-44. Recently, the Fifth Circuit reaffirmed that a party moving for preindictment
relief under 41(g) must, at the very least, make a “substantial showing of
irreparable harm.” In re Search of Law Office, 341 F.3d at 414.
ERHC avers that the Government unlawfully seized the documents and the
imaged computers because these items contain information subject to the attorneyclient
privilege. Applying the above noted factors, the Court declines to exercise
jurisdiction over the claim and accordingly declines to order the Government to return
these materials before conducting a privilege review. First, ERHC has not shown
callous disregard by the Government. The items recovered from ERHC’s offices were
taken pursuant to, and within the scope of, a search warrant issued by a United States
Magistrate Judge. See Hunsucker v. Phinney, 497 F.3d 29, 34 (5th Cir. 1974) (finding
no callous disregard for constitutional rights because the conduct under attack was
taken pursuant to a search warrant). Thus, the Court finds no callous disregard for
ERHC’s constitutional rights.