USA v. Lukkes

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
CONTESSA LUKKES,
Defendant.
CR. 18-50139-01-JLV
ORDER
The court sentenced defendant Contessa Lukkes to custody in the United
States Bureau of Prisons for the following offenses: conspiracy to commit bank
fraud in violation of 18 U.S.C. §§ 1349 & 1344; bank fraud in violation of
18 U.S.C. § 1344(2); aggravated identity theft in violation of 18 U.S.C.
§ 1028(A)(a)(1); and theft or receipt of stolen mail in violation of 18 U.S.C. § 1708.
(Docket 110). 	Ms. Lukkes, appearing pro se, filed a motion seeking the return of
personal property pursuant to Fed. R. Crim. P. 41(e).1 	(Docket 115). 	Ms.
Lukkes seeks the return of “any personal property that may be held by the
government as evidence pertaining to” her case. 	Id. 	In addition to any items
constituting evidence, Ms. Lukkes asks the court to return to her the following:
A green purse;
A black HP Printer;
The contents inside purse including a wallet; and
Any other items associated with her case.
Id.
1 Fed. R. Crim. P. 41(e) has been re-designated as Rule 41(g).
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The government’s response indicated a significant number of items were
recovered as part of the investigation into the defendant’s criminal conduct.
Those items include:
a wallet with several debit/credit cards in Ms. Lukkes’ name;
$193 cash in the wallet,
debit/credit cards belonging to L.C. and R.W.2
a LG cell phone,
quart-sized Ziploc bag containing rubber gloves;
a South Dakota driver’s license in the name of Contessa Lukkes
a gray purse with various receipts in it;3
nail polish remover;
check printing paper and transfer checks for a credit card belonging
to B.S.; and
a HP Office Jet Pro. 8720 printer.
(Docket 122 at pp. 2-4). 	The government does not oppose the return of “the
purse (green/grey), cell phone and the wallet (excluding any and all credit
cards).” 	Id. at p. 5. 	The government objects to the return of any of the other
items seized as they were either used in defendant’s criminal scheme or
purchased with money obtained by her criminal conduct. 	Id. at pp. 3-5. 	By
way of example, the government represents that the HP printed was
purchased by Ms. Lukkes using a stolen credit card. 	Id. at p. 4.
The Federal Rules of Criminal Procedure provide:
A person aggrieved by an unlawful search and seizure of property or
by the deprivation of property may move for the property’s return.
The motion must be filed in the district where the property was
2 Defendant’s crime of conviction involved the use of credit cards in the
name of or belonging to others. 	To protect the identity of those victims, the
court will only identify them by initials.
3 The government acknowledges the gray “purse is olive colored and could
also be described as green.” 	(Docket 122 at p. 3 n.1).
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seized. 	The 	court 	must 	receive 	evidence 	on 	any 	factual 	issue
necessary to decide the motion. If it grants the motion, the court
must return the property to the movant, but may impose reasonable
conditions to protect access to the property and its use in later
proceedings.
Fed. R. Crim. P. 41(g).
To be successful on a Rule 41(g) motion, Ms. Lukkes must “establish
lawful entitlement to the property.” 	Jackson v. United States, 526 F.3d 394,
396 (8th Cir. 2008). 	“Where there is a fact dispute regarding who has
custody or is entitled to possession of the subject property, the court must
hold a hearing to determine those issues.” 	United States v. Timley, 443 F.3d
615, 625 (8th Cir. 2006). 	“When it is apparent that the person seeking a
return of the property is not lawfully entitled to own or possess the property,
the district court need not hold an evidentiary hearing.” 	United States v.
Felici, 208 F.3d 667, 670 (8th Cir. 2000), abrogated in part on other grounds
by Henderson v. United States, 575 U.S. 622 (2015). 	The government
presented uncontested statements countering defendant’s claims to some of
the property at issue.4
“Derivative contraband . . . [is property that] may be lawfully possessed
but which became forfeitable because of unlawful use.” 	Id (citing United
States v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293, 297
n.8 (8th Cir. 1982)). 	As Ms. Lukkes was not employed at the time of her
criminal spree, the cash as well as the other items seized by law enforcement
4 Ms. Lukkes did not file a reply brief in response to the government’s brief
and the time for doing so expired. 	D.S.D. Crim. LR 47.1(C).
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were derived from her criminal conduct. 	Id. at 671. 	No evidentiary hearing
is required to consider defendant’s claim as “it is apparent that the person
seeking a return of the property is not lawfully entitled to own or possess the
property.” 	Id. at 670.
As the government does not oppose the return of the purse, the LG cell
phone and the wallet, excluding all credit cards and cash, those items may be
returned to defendant. 	Good cause appearing, it is
ORDERED that defendant’s motion (Docket 115) is granted in part and
denied in part.
IT IS FURTHER ORDERED that the government shall release to
defendant’s attorney Ellery Grey, for ultimate restoration to the defendant,
the following items:
The green/grey purse;
The LG cell phone; and
Ms. Lukkes’ wallet, excluding all cash and credit cards.
IT IS FURTHER ORDERED that the remaining items seized from Ms.
Lukkes or obtained by law enforcement as a result of the investigation and
prosecution in this case are classified as derivative contraband and subject to
forfeiture. 	18 U.S.C. § 982(a)(2).
Dated May 4, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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