UNITED STATES OF AMERICA v. THOMAS TROUBA (2025)

FINDINGS AND RECOMMENDATION

On August 11, 2025, this matter came on for evidentiary hearing on Defendant's Motion(s) to Return Property. (Filing No. 177 and 178).¹ Defendant was present with CJA counsel Richard McGowan. Assistant United States Attorney Mikala Purdy-Steenholdt appeared for the government. Evidence was adduced, including the testimony of Defendant, as well as United States Marshals Service (“USMS”) Asset Forfeiture Coordinator Falyn Rowell. The evidence also included photographs of the subject residence offered without objection by Defendant (Def. Ex. 101, 102, and 103), as well as a collection of photographs, a custody report, and email correspondence offered without objection by the government. (Gov. Ex. 1-24). The court denied Defendant's oral motion to continue the evidentiary hearing for purposes of chemical testing of the “Wana gummies” and to retain an expert for such testing, finding that the request was untimely. Supplemental briefing was permitted at the request of the parties, a transcript was ordered, and the matter taken under advisement.

Now being duly advised in the premises, the court recommends to the Honorable Brian C. Buescher, District Judge, that the Motion to Return Property be denied for the following reasons:

I. BACKGROUND

The matters at issue here have been pending for some time and a brief overview of the procedural background may be helpful. Prior memoranda and orders issued by the district court also addressing these matters are incorporated herein by reference. (Filing No. 188, 192, and 209). Defendant was charged and convicted upon plea agreement of a violation of 21 U.S.C. § 846 drug conspiracy and sentenced to 120 months incarceration on January 5, 2023. (Filing No. 127, Text Minute Entry, and 135, Judgment). As part of his plea agreement and conviction, the district court granted the government's motion for criminal forfeiture, which included Defendant's residence located at 13475 Elm Circle, Omaha, Nebraska 68144, as well as monies contained in various financial accounts. (Filing No. 163, Final Order of Forfeiture entered on June 23, 2023). Defendant appealed and the United States Court of Appeals for the Eighth Circuit affirmed the judgment on December 11, 2023. See United States v. Trouba, No. 23-1143, 2023 WL 8539667, at *1 (8th Cir. Dec. 11, 2023) (per curiam).

Defendant later filed a number of pro se motions seeking miscellaneous relief, including a motion to return property and appointment of counsel. The motions at issue here, Filing No. 177 and 178, were filed on March 22, 2024, and April 22, 2024, respectively. The district court disposed of the majority of the issues, but referred Filing No. 177 and 178 to the undersigned for an evidentiary hearing, in particular as it related to three categories of property: (1) appliances and yard accessories (noted as a refrigerator, microwave, gazebo, hot tub, and washer and dryer); (2) electronic devices (noted as cell phones, a tablet, and a laptop computer); and (3) “Wana gummies” (noted as gummies containing some amount of THC). (Filing No. 192 at pp. 1-2, 4-5).

As for the first category of property, the district court found that the government had shown it no longer possessed the appliances and yard accessories, but it had not adequately explained whether its disposition of those items along with the forfeited real property was proper. The court, for example, questioned whether the items had become “fixtures” such that they became part of the real estate subject to the criminal forfeiture, or whether the items should have been returned. (Filing No. 192, at p. 4 and fn. 1). The district court concluded that an evidentiary hearing was necessary to address those issues as well as “whether, and to what extent, and by what potential mechanism Trouba may assert an alternative claim for damages” if the property was improperly disposed of. (Filing No. 192 at pp. 4-5). As for the second category of property, the district court overruled Defendant's request for the immediate return of the electronic devices as the government indicated its willingness to return the items once the deadline for any collateral attack on Defendant's conviction and sentence expired. (Filing No. 192 at p. 6). As for the third category of property, the district court noted that a central question continued to be whether Defendant was entitled to lawfully possess the Wana gummies, a burden he must meet. (Filing No. 192 at p. 6). The district court referred the matter for evidentiary hearing to allow Defendant an opportunity to establish lawful entitlement to the property. (Id. at pp. 6-7).

An evidentiary hearing was scheduled and then continued several times at the request of the government and defense counsel. (Filing No. 216 and 221). The matter came on for hearing on August 11, 2025, with Defendant present. The government first stipulated that the electronic devices could now be released because all collateral relief had been exhausted. Defendant agreed to comply with law enforcement requirements for seeking the return of those items, meaning that issue has been fully resolved, leaving only the issue of appliances/yard accessories and the gummies. (Filing No. 233 at pp. 5-6, Hearing Transcript).

Defendant testified that he purchased his residence at 13475 Elm Circle (hereinafter “the property”) sometime in September 2017. He last stepped foot into the property on the day of his arrest, September 18, 2020. He has been in custody ever since. (Filing No. 233 at p. 19). Defendant testified that he has been unable to retrieve his belongings from the home, including the items at issue here. When asked about the refrigerator in the kitchen, he stated that the house had two refrigerators, a white one in the garage and a four-door Samsung chest freezer/fridge unit in the kitchen. When the house was sold, the white refrigerator in the garage was apparently moved to the kitchen and can be observed in the sales flyer for the home. (See Gov. Ex. 2). Defendant did not know what happened to the Samsung refrigerator. (Filing No. 233 at p. 23).

Defendant built the gazebo located in the backyard in 2018. He testified that the unit was prefabricated and could be disassembled and was not attached to the ground. The hot tub was inside the gazebo and Defendant explained that one would need to disassemble the gazebo to remove the hot tub, which measured 8 feet by 8 feet. (Filing No. 233 at pp. 24-25). Defendant testified that he paid approximately $12,000 for the gazebo and approximately $15,000 for the hot tub. (Filing No. 233 at pp. 25-26). Both items were brand new, but he did not have receipts. Defendant tried to make arrangements with a friend to remove the items at a cost of approximately $1,500, but those efforts fell through. He also testified that he tried to make arrangements with other family members and friends to retrieve his personal property, but was told by his attorney that the government may go after them if they attempted to do so. (Filing No. 233 at pp. 36-37). He acknowledged that his friends and family had access to the property, but that they were reluctant to remove any items due to fear of reprisal. Defendant testified that it was never his intent to abandon the items and that he made multiple attempts to remove them. (Id.).

The washer and dryer units were stacked and kept in a utility closet in the bathroom. (Def. Ex. 101, photo). The units were purchased new and cost approximately $1,200 apiece. (Filing No. 233 at p. 27). The kitchen microwave was also purchased new and installed above the stove. (Def. Ex. 102, photo). The unit sat on a bracket permanently installed in the wall, although Defendant testified that the microwave itself could be removed. (Filing No. 233 at p. 29). He also testified about several other items of personal property not specifically identified in his motion(s), including a couch, queen size bed, office furniture, coffee table, tools, T.V., subwoofer, kitchen table, a vacuum cleaner, a shed and playset, among others. Defendant confirmed that a number of those items were present in the home when law enforcement executed two search warrants shortly after his arrest, the first on September 19, 2020, and the second a few days later on September 23, 2020. Photographs taken during those searches were offered and received as Government Exhibits 10-23. Defendant did not offer any evidence as to the value of those additional items.

As for the “Wana gummies,” Defendant testified that he had at one time approximately 5,000 containers at a cost of approximately $30.00 apiece. On cross-examination, he did not dispute that approximately 173 containers were confiscated during a search warrant executed after his arrest. He believed he had a right to possess the hemp product under the 2018 Farm Bill, so long as the THC concentration was less than 0.3% on a dry weight basis. (Filing No. 233 at p. 35-36). Defendant admitted that the items constituted CBD products and contained standard warnings, including that they be kept out of the reach of children. Defendant also admitted that he sold the products. When asked whether he was authorized to do so, Defendant invoked his right against self-incrimination under the Fifth Amendment. (Filing No. 233 at p. 60). Defendant declined to answer questions related to that particular issue, although he did not dispute that he sold marijuana, a variety of wax, vape pens, variety of weed products, and “other CBD stuff” or “legal CBD products” as part of his drug business. (Filing No. 233 at p. 48).

Asset Forfeiture Coordinator Falyn Rowell testified that the USMS first took possession of the property on July 21, 2023, pursuant to a Final Order of Forfeiture. She agreed that Defendant had legal possession of the property, and at least “constructive possession,” up until the final forfeiture. (Filing No. 233 at p. 103). She described that upon entry of a final forfeiture order, the USMS is responsible for securing the asset and preparing the property for disposition. (Filing No. 233 at p. 75). For real property, this involves selecting contractors to prepare the property for sale and a private real estate agent to list the property. She followed this procedure and met with contractors at the property on July 21, 2023. Photographs of the property were taken and her office prepared a “Custody Stabilization Inspection Report,” offered and received as Government's Exhibit 9. During her visit, Ms. Rowell testified that they were unable to gain access to the property initially as there was a fortified lock and keypad system installed. The agents spent close to an hour trying to drill into the lock without success. She was finally able to enter the property after an agent located an open window. (Filing No. 233 at pp. 78-79). Ms. Rowell testified that she spoke with a neighbor who confirmed that Defendant's mother had a key to the house and she had stopped coming around the house a couple of months prior to the inspection. (Filing No. 233 at p. 78).

Ms. Rowell testified that the home was mostly cleaned out when she arrived for the inspection, other than some items left in the home and debris. According to the custody stabilization report, the home contained a refrigerator in the kitchen, one stove, one dishwasher, one microwave, and a washer and dryer unit located in the bathroom at the time of the inspection. (Gov. Ex. No. 9, p. 6). The report also noted that there was a spa/hot tub on site. There was further reference to “2 refrigerator” in the report, but no identification of the whereabouts of the second refrigerator. Photographs taken during the inspection, however, do show a large two-door stand up refrigerator or freezer unit located at the back of the garage, but this does not appear to be the same Samsung unit Defendant testified used to be in the kitchen. (Id. at p. 23). The Samsung refrigerator was not in the home at the time of the inspection. (Filing No. 233 at pp. 81-82).

While Ms. Rowell was not present during execution of the earlier search warrants in September 2020, she compared the photos taken during those searches and the photos taken as part of her inspection in July 2023. (Compare Gov. Ex. 9 with Exhibits 10-23). She confirmed that many of the items had been removed and were not in the home during her inspection. Other than the appliances already noted, Ms. Rowell testified that any other items left were presumed to be abandoned and were either discarded during cleaning or sold with the home. The USMS did not sell any separate property and the home was sold “As-Is.” She testified that it is common that some items of personal property will remain with the home and included in a real estate sale. (Filing No. 233 at p. 105). The refrigerator(s), microwave, washer, dryer, hot tub, gazebo, and shed remained with the property. The home was listed with a local real estate agent and sold in February 2024. She further confirmed that no one made any claim for any property items between the time the USMS took custody of the home and the time it was sold. (Filing No. 233 at p. 83).

According to email correspondence from Scott Bergman, the realtor who listed the home, he considered the microwave to be a fixture permanently attached in the kitchen above the stove, as well as the gazebo as it was permanently attached in the backyard. (Gov. Ex. No. 24). The refrigerator, washer, and dryer were considered personal property and the realtor indicated that it is “very common” for those items to be included in a sale. (Id.) (noting “very common personal property item amongst sales”). He further reiterated that he “never received any inquiries ․ regarding these items.” (Id.).

II. ANALYSIS

As the district court did, the undersigned presumes Defendant's request for the return of property is one made under Fed. R. Crim. P. 41(g), which provides as follows:

(g) Motion to Return Property. 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 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.

“Post-conviction filings for the return of property seized in connection with a criminal case are treated as civil equitable actions, and the district court where the claimant was tried has subject matter jurisdiction ancillary to its criminal jurisdiction to hear the equitable action.” Thompson v. Covington, 47 F.3d 974, 975 (8th Cir. 1995). Courts have made clear that a defendant may not use a post-conviction Rule 41(g) motion to seek return of forfeited property because such challenges must be made on appeal or not at all. See United States v. Hunt, 2016 WL 8970339 *2-3 (D. Minn. Dec. 16, 2016).

A movant bears the initial burden of establishing lawful entitlement to the property. “This burden is often satisfied by showing that the property was seized from the movant's possession, as a person from whom property is seized is presumed to have a right to its return.” Jackson v. United States, 526 F.3d 394, 396-97 (8th Cir. 2008). “A Rule 41(g) motion is properly denied if the defendant is not entitled to lawful possession of the seized property, the property is contraband or subject to forfeiture or the government's need for the property as evidence continues.” Id. (quoting United States v. Vanhorn, 296 F.3d 713, 719 (8th Cir. 2002)). But a “defendant may invoke Rule 41(g) to seek the return of property that was seized but not forfeited.” United States v. Yah, 2008 WL 818882 *2 (D. Neb. March 20, 2008). “When the government asserts that it no longer possesses property whose return is sought under Rule 41(g), the district court must determine whether the government retains the property, and if the court finds the government no longer possesses the property, then it must determine what happened to the property.” United States v. Bailey, 407 Fed. Appx. 74, 75 (8th Cir. 2011).

A. Appliances/Yard Accessories

With these standards in mind, the court will first focus its analysis on the appliances and yard accessories. The court finds that the gazebo, microwave, and even the shed, became fixtures and remained with the home, which was subject of course to criminal forfeiture. The remaining items of personal property were never seized as they were either removed by others or were voluntarily abandoned.

1. Fixtures

“Fixtures are thought of as personal property which has become a part of the real estate[.]” Griffith v. Drew's, LLC, 860 N.W.2d 749, 760-61 (Neb. 2015). To determine if an item becomes a fixture, the court should generally consider three factors, summarized as follows: (1) whether the item has become attached to the property; (2) whether the item is “reasonably necessary for which the real estate was being used,” for example whether it is the type of property generally found on realty and “that would have utility to a hypothetical purchase of the underlying realty․”; and, (3) the intention of the owner to make the item a permanent attachment to the property, to be inferred from “relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made.” Id. As one Nebraska court described, “a fixture is an object which would ordinarily be considered personal property, but which has lost its character as personalty and is considered to be a part of real property by reason of a combination of circumstances surrounding its attachment or connection to the realty.” Hoberman Realty, Inc. v. Lamar Advertising Co., 2004 WL 1316861 *3-4 (Neb. Ct. App. June 15, 2004) (internal citations omitted).

Considering these factors here, the evidence shows that the gazebo was a fixture, and so too was the microwave. As fixtures, the items became part of the property that was undisputably subject to criminal forfeiture and therefore were not seized under Rule 41(g). See 21 U.S.C. § 853(b)(1) (“property subject to criminal forfeiture” includes “real property, including things growing on, affixed to, and found in land”). While Defendant testified that the items could “easily” be removed, the photographic evidence shows otherwise. (See Def. Ex. 103 and Gov. Ex. No. 9, p. 6/31). Defendant acknowledged that the gazebo is a large structure housing an 8 foot by 8 foot hot tub that would take approximately five hours to deconstruct. The item was located in the backyard and appeared to contain a sky light and interior lighting, as a permanent structure might otherwise have. (Gov. Ex. 9, p. 18). The realtor hired to sell the property stated that the gazebo was permanently attached in the backyard. (Gov. Ex. 24).

The realtor said the same thing about the microwave, noting that it was “permanently attached in the kitchen above the stove.” (Id.). Defendant did not dispute that the microwave sat on brackets permanently affixed to the cabinet or wall. The unit also appeared to be similar in style and color to the cooking range sitting directly below. (Def. Ex. 102). Defendant does not appear to dispute that the cooking range was a fixture remaining with the home. Very little evidence was offered concerning the shed. The item was not referenced in Defendant's motions and there appeared to be some confusion at the evidentiary hearing as to whether the shed and the gazebo were the same thing. (Filing No. 233 at p. 42). While Defendant testified that the shed was not permanently affixed to the ground, it is not unusual for a shed to be left with real property. Ms. Rowell confirmed that in the “ten homes” she had prior experience with, some included sheds. (Filing No. 233 at p. 96). The custody report under the section “SECURING- DOOR, WINDOWS, FENCING,” also included the term “sheds,” with other fixture-like items such as “main structure, house, garages, barns, sheds, storage units, outbuildings, fences, pools, etc.” (Gov. Ex. 9 at p. 2).

The evidence also shows that these items are of the type generally found on realty and certainly would have utility to a purchaser of the property. Griffith, 860 N.W.2d at 760-61. As the realtor noted, it is “very common” to have items like these included in a real estate sale. (Gov. Ex. 24). Ms. Rowell again confirmed that in her experience with asset forfeitures, these types of items are often left behind and included as part of the asset sale. (Filing No. 233 at p. 77). The court has not ignored that Defendant disclaimed any intention of permanently attaching the items to the property, but the circumstantial evidence and the purpose of the items show otherwise. Defendant retained custody of the property for several years, even after his arrest in September 2020, and left the items as part of the real property, like he did with the cooking range and even the dishwasher. While he testified that he made efforts to remove some of the items but could not due to his incarceration and fear of reprisal, the evidence clearly shows many other items were removed from the home after the execution of the search warrants and before the final forfeiture, likely at his direction. (Compare photos in Gov. Ex. 10-23 with photos in Gov. Ex. 9). This all while Defendant remained in custody. The court is again required to consider “a combination of circumstances surrounding [an item's] attachment or connect to the realty.” Hoberman Realty, Inc., 2004 WL 1316861 at *3-4. In doing so, the court finds that these additional circumstances further demonstrate Defendant's intention to leave certain items behind, especially those more permanently affixed to the property.

2. Removed and/or Abandoned Property

For similar reasons, the court finds that many of the other items of personal property at issue were either removed by others prior to forfeiture or voluntarily abandoned and thus never seized. Rule 41(g) again applies only if the government seized property and deprived the owner of that property. But the evidence here supports the government's contention that it was likely Defendant's family, friends, or others who removed many of the items from the home. This included the Samsung refrigerator (Ex. 13, 17), the couch or loveseat (Ex. 10, 18), the large TV and speakers (Ex. 11), the large farm dining room table (Ex. 12, 20), office furniture (Ex. 14, 23), and bed (Ex. 22). (See also Ex. 9). Those items were present in the home as observed in photographs taken in September 2020, but they were not present in the home during the later USMS inspection in July 2023. Defendant did not dispute that he retained ownership of the property even after his arrest. Defendant was clear that he made multiple efforts to coordinate with family and friends so that items could be removed or sold. While he added that others were reluctant to do so, the photographic evidence again shows that Defendant's efforts were largely successful.²

The evidence also shows that outside the initial searches performed by lawful warrant in September 2020, the government did not gain physical access to the property until the final forfeiture in the summer of 2023. Accordingly, no physical seizure of those particular items occurred. A neighbor reported to Ms. Rowell that Defendant's mother had been to the property before, as recently as just a few months prior to the USMS inspection, and that the mother had a key to the property. The front door was also secured with a keypad and lock, the combination which was not known to law enforcement. Ms. Rowell confirmed that law enforcement did not initially have access to the home and that they spent approximately an hour trying to drill the keylock open. It was not until an agent located an open window that the USMS was finally able to access the property.

As for any items of personal property remaining after the forfeiture, the circumstantial evidence shows those items were voluntarily abandoned. “Personal property is voluntarily abandoned when the owner of the property intentionally and voluntarily gives up title to such property and title vests in the government. The receiving agency ordinarily documents receipt of the property to evidence its voluntary relinquishment. Evidence of voluntary abandonment may be circumstantial.” 41 C.F.R. § 102-41.80. For the same reasons already noted, the circumstantial evidence here shows that Defendant had the time and opportunity, at least through others, to remove items of personal property prior to the final forfeiture. His decision to leave certain items behind demonstrates abandonment.

Defendant references in his brief other regulations that address generally how an agency should dispose of abandoned property, suggesting that Ms. Rowell and her agency failed to comply. (Filing No. 229 at p. 2). But those regulations address primarily what government agencies should do with certain property after it has been abandoned and reported to General Services, not the primary issue here of whether the property was abandoned in the first place and as part of a criminal forfeiture. See e.g., 41 C.F.R. §§ 102-41.20 through 102.41.105 (regulations regarding Federal Management Regulation) and 40 U.S.C. § 552 (authorization for the Administrator of General Services to supervise and direct the disposition of surplus property). But even if considered, the impetus of those regulations is really two-fold -- documenting the abandoned property and sufficient notice.

The evidence here shows the USMS thoroughly documented items of abandoned property in its Custody Stabilization Report. (Gov. Ex. 9). The evidence further shows that Defendant had ample notice that his home was going to be forfeited and that any remaining items should be removed. He had plenty of time and reminders to do so and again made active efforts to remove many items through others. The issue of forfeiture was asserted early in the indictment (Filing No. 1), the Bill of Particulars (Filing No. 41), and later in the plea agreement (Filing No. 92). The matter came on for evidentiary hearing with the district court on October 31, 2022, and a preliminary order of forfeiture was issued on November 29, 2022, and later amended on December 29, 2022. (Filing No. 108 and 113). Prior to the final forfeiture order, the government provided Notice of Declaration of Publication verifying that it posted notice of the pending forfeiture as required for 30 consecutive days beginning on January 4, 2023. (Filing No. 155). No claims were made by anyone. The court accordingly finds that Defendant had ample time to remove any items he wanted to keep and abandoned those items left behind.

B. Wana Gummies

The court will next address Defendant's demand that his “Wana gummies” be returned. Based upon Defendant's own acknowledgement that the products were part of his drug business, the court finds the items constitute contraband and are not subject to return under Rule 41(g). There can be two kinds of contraband, either per se or derivative. “Contraband per se is property the mere possession of which is unlawful.” United States v. Felici, 208 F.3d 667, 670-71 (8th Cir. 2000) (abrogated on other grounds, Henderson v. United States, 575 U.S. 622 (2015)). “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)). Even when a formal forfeiture action is not instituted, the Eighth Circuit has recognized the doctrine of “unclean hands,” which is “an equitable doctrine that allows a court to withhold the equitable relief if such relief would encourage or reward illegal activity.” Id. (finding that even though the government failed to initiate an enforcement action, “[w]e believe․that such a failure should not prevent the government from being able to assert, in resistance to a Rule 41(e) motion, a limited derivative contraband theory).³ As the court noted, “it makes scant sense to return to a convicted drug dealer the tainted tools used or intended to be used in his illegal trade when the same were lawfully seized.” Id. at 671 (further noting, however, that the issue should be addressed generally only after an evidentiary hearing).

In this matter, the parties do not dispute that there are some CBD (or hemp) products that are considered legal under the Nebraska Farm Bill Act. See Neb. Rev. Stat. § 2-503 (defining the term “Hemp” to mean any part of the “plant Cannabis sativa L, with a “delt-9 tetrahydrocannabinol concentration [‘THC’] of not more than 0.3 percent on a dry weight basis”). The government produced a test result on one of the gummy containers that measured at 0.2956% delta-9 THC with a measure of uncertainty of 0.025 percent. (Gov. Ex. 7). At the evidentiary hearing, Defendant requested for the first time the opportunity to retain an expert witness and to submit each of the 173 Wana gummies containers for testing. (Filing No. 233 at pp. 10-11). While the government did not oppose the request, it added that the cost of doing so would likely be “exorbitant.” (Filing No. 233 at p. 13). The motion was denied as untimely. The subject motions have been pending since March and April 2024. (Filing Nos. 177 and 178). The district court generally addressed the issue of testing and noted Defendant's burden to show lawful possession in an order entered over a year ago on July 26, 2024. (Filing No. 192 at p.7). Defendant was appointed counsel and the matter set several months prior to the evidentiary hearing, with several requested extensions granted even after that. (Filing No. 210 and 214-221). There is no good cause to postpone these issues any further, especially at this late date.

But regardless, the court finds the issue of testing to be largely moot given Defendant's unclean hands and the nature of the products as derivative contraband. Defendant admitted during the evidentiary hearing that he was a convicted drug dealer and that the drug he sold was marijuana. (Filing No. 233 at p. 47-48). He did not quibble with the question whether he was pretty good at it, answering instead “Allegedly.” (Id.). When Defendant was asked specifically what types of items he sold as “part of his drug business,” he first answered “just marijuana” but then added “CBD stuff,” like the Wana gummies “supposedly marketed․as legal CBD products,” as well as a variety of other weed products like wax, raw marijuana, and vape pens. (Id.). Defendant did not dispute that the Wana gummies contained a label notifying users to keep the product away from children and that they contain marijuana, which is a derivative of CBD. (Filing No. 233 at p. 49). Defendant again did not dispute that he sold the CBD product as part of his drug trafficking business, but added that “[t]hose were something that I sold as a CBD product for people that did not smoke marijuana.” (Id.).

The court finds it difficult, if not impossible, to differentiate between Defendant's legal drug business from his illegal one, as his testimony suggests it was part of one enterprise. The district court previously analyzed the extent of Defendant's drug trafficking business in its Memorandum and Order on Criminal Forfeiture. (Filing No. 112). There the court noted that law enforcement discovered a cardboard box in Defendant's vehicle that contained “large denomination bills in rubber bands next to THC vapes and yellow tins of THC shatter.” (Filing No. 112, at p. 4-5). Law enforcement also located other marijuana and “THC products” throughout Defendant's residence, containers consistent with drug packaging, and evidence showing Defendant used his house for processing various narcotics. (Id.). Law enforcement also seized almost $500,000 from Defendant's vehicle and various bank accounts, which the court found derived from his drug business.

When Defendant was asked whether he was legally authorized to sell CBD products, he invoked his Fifth Amendment right against self-incrimination and declined to answer that question. The court will draw an adverse inference from this invocation. See U.S. Commodity Futures Trading Com'n v. Arrington, 998 F.Sup.2d 847, 863 (D. Neb. 2014) (“In civil cases, a trial court may, in its discretion, draw adverse inferences from the invocation of that Fifth Amendment right”).⁴ Defendant presented no evidence showing the proceeds confiscated by law enforcement did not derive in some part from the sale of the gummies, nor did he show the proceeds were not used, in part, to further his distribution of controlled substances. In light of the sheer extent of Defendant's drug trafficking business, and his admission that the Wana gummies, even if legal, were a part of that drug business, the court concludes like the Eighth Circuit did in Felici that “it makes scant sense to return to a convicted drug dealer the tainted tools used or intended to be used in his illegal trade when the same were lawfully seized.” 208 F.3d at 671. Because of Defendant's unclean hands, the court will not further encourage or reward his prior illegal activity. See id.

For these reasons, the court hereby recommends to the Honorable Brian C. Buescher, District Judge, that Defendant's Motion for the Return of Property, Filing Nos. 177 and 178, be denied, but that Defendant be permitted to recover his electronic devices (namely his cell phones, table, and laptop computer) as noted herein from the applicable law enforcement agency in a manner consistent with that agency's policies and procedures.

Dated this 18th day of September, 2025.

Defendant is notified that failing to file an objection to this recommendation as provided in the local rules of this court may be held to be a waiver of any right to appeal the court's adoption of the recommendation.

FOOTNOTES

1.   Defendant also requested the appointment of counsel, which was previously approved by the court. (Filing No. 210). Counsel was appointed for the limited purpose of addressing Defendant's pending motions to return property.

2.   Defendant accused law enforcement of leaving his front door “wide open” after the searches of his property in September 2020. (Filing No. 233 at pp. 50-51). To the extent Defendant was suggesting that as a result, other unknown individuals may have raided his home and taken items, the court rejects that argument as unsupported. Defendant acknowledged that his friends and family had access to the inside and outside of the property during the duration of his criminal case and up until USMS took custody of the property. (Filing No. 233 at p. 68).

3.   Fed. R. Crim. P. 41(e) was later redesignated Rule 41(g) without substantive changes. See Fed. R. Crim. P. 41 Advisory Committee Note to the 2002 amendments.

4.   At the conclusion of the hearing, Defendant requested leave to submit a written brief. The court permitted both parties to do so, but requested that they also address if any applicable regulations that may apply to the retail sale of CBD products. The government in its brief focused on certain FDA requirements for food additives. (Filing No. 232). Defendant only briefly referenced the Nebraska Hemp Farming Act. In light of the court's reasoning herein that the items constitute derivative contraband and as part of Defendant's unclean hands, that particular issue need not be decided now.

Ryan C. Carson United States Magistrate Judge