Overview
For those with an international enforcement practice, a federal district court recently ruled on whether a party subject to an MLAT-driven search of her premises can obtain relief under Rule 41(g), and in doing so has provided a reminder regarding the challenges in obtaining Rule 41(g) relief when the search occurs pursuant to an MLAT.
In Vasarely v. United States, Michelle Vasarely ("Mrs. Vasarely"), daughter-in-law of renowned artist Victor Vasarely, became involved in a decades-long family dispute over the ownership of Victor's artworks. After serving as Chairperson of the Vasarely Foundation, Mrs. Vasarely received a substantial number of paintings through a 1995 arbitral award. French authorities later alleged that the arbitration was a sham that she orchestrated to benefit herself and other heirs, and they initiated a criminal investigation against her. In May 2023, pursuant to a Mutual Legal Assistance Treaty (MLAT) between France and the United States, the FBI executed a search warrant at Mrs. Vasarely's Puerto Rico residence and seized 112 artworks. Mrs. Vasarely filed a motion under Federal Rule of Criminal Procedure 41(g) seeking the return of her property, arguing that the search was unconstitutional and that the seizure was unlawful.
On September 11, 2025, the District Court of Puerto Rico denied Mrs. Vasarely’s motion. Applying the Richey factors used by the Second Circuit to decide whether equitable relief is appropriate, the court found that Richey’s requirement that the search was in "callous disregard" of her constitutional rights was wanting, as required under Richey. In addition to finding the supporting affidavit sufficient and the scope of the search to be defined with sufficient particularity, it also, most interestingly, addressed whether the search was a misuse of 18 U.S.C. § 3512, the statute authorizing the issuance of search warrants through MLAT requests. In finding that the Government complied with Section 3512, the Court held that the Government was entitled to use Section 3512 for the purpose of seizing the art even if there may have been other more appropriate statutes to use (i.e., civil forfeiture and foreign forfeiture enforcement statutes) to obtain the art seized through the search. It also held that Section 3512's dual criminality requirement was met. In doing so, it rejected the argument that the statute that was the subject of the French investigation had no equivalent under federal or State law, and focused on the conduct at issue - the fixing of the arbitration for her own personal benefit. Because the conduct subject to the investigation in France fell within the ambit of Puerto Rico's general criminal fraud statute, the court found the dual criminality requirement to have been met.
While seemingly a straightforward opinion, Vasarely should serve as a reminder of the higher hurdle faced by those subject to MLAT-based searches in the United States. Because the searched person or entity is not the subject of US charges, the relief sought is necessarily equitable, requiring a showing of Richey's "callous disregard" of Constitutional rights, not simply a violation of them. Additionally, Vasarely highlights the danger of the Government using searches under Section 3512, where the property owner's only recourse is the more stringent Rule 41(g) process, to obtain what it views as contraband or "tainted" property, instead of relying on the more conventional modes of seizure under federal civil forfeiture statutes.
