*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 11/26/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALEX YUNG,

Defendant-Appellant.

No. 96-3121

(D.C. No. 91-20049-01)

(D. Kan.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Alex Yung, proceeding pro se and in forma pauperis, appeals the district
1

 This court affirmed Mr. Yung's conviction in United States v. Scott, 37

F.3d 1564 (10th Cir. 1994), cert. denied, 115 S. Ct. 1324 (1995).

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court's minute order of February 23, 1996, insofar as it denies his Fed. R. Crim. P.

41(e) motion for the return of computer and electronic equipment the government

claims was forfeited on June 11, 1992. We exercise jurisdiction to review Mr.

Yung's appeal pursuant to 28 U.S.C. § 1331 and remand for proceedings

consistent with this order and judgment.

In 1992, a jury convicted Mr. Yung of conspiracy to defraud the United

States government in violation of 18 U.S.C. § 371. Evidence supporting Mr.

Yung's conviction included documents and computer and electronic equipment

seized in conjunction with a search warrant executed in 1988. In January 1996,

after the completion of criminal proceedings,1 Mr. Yung filed a Fed. R. Crim. P.

41(3) motion with the district court for the return of the property seized from him

in 1988.

In response to Mr. Yung's motion, the government informed the district

court it had initiated forfeiture proceedings against the computers and electronic

items in early 1989, in accordance with I.R.C. § 7302. Those proceedings were

finalized in June 1992, after Mr. Yung's conviction. Thereafter, the government
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disposed of the computer and electronic equipment and stored the work papers

and other confiscated documents. With the exception of the computer and

electronic equipment, the government stated it was willing to return the

confiscated evidence to Mr. Yung. Notably, however, the government provided

no record or additional information as to the nature or regularity of the forfeiture

proceedings.

Mr. Yung filed a "Response to Government's Response" in which he

claimed (1) the only notification he received regarding the forfeiture action "was

a request for a twenty five hundred (2500) dollar posted bond to secure the nonforfeiture of the computer equipment," (2) he mailed the requested bond in a

timely manner "to secure the equipment," and (3) "[t]he tendering of the bond

constitutes a claim against the IRS and puts the burden upon them." Mr. Yung

further stated "a potential return of the bond in exchange for the forfeiture is not

acceptable." Mr. Yung signed and dated his response on February 22, 1996;

however, his response was not filed with the court until February 27, presumably

due to prison processing and mailing. On February 23, prior to receiving Mr.

Yung's response, the district court ordered the government to "return the seized

property with the exception of computer and electronic equipment which was

forfeited on June 11, 1992." The district court did not address jurisdictional
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issues or the relative merits of Mr. Yung's motion.

In his brief on appeal, Mr. Yung reemphasizes he timely submitted a

payment of twenty-five hundred dollars as bond to prevent the forfeiture of his

computer and electronic equipment. As a result of the forfeiture, Mr. Yung

claims he has lost the amount of that forfeiture bond in addition to several

thousands of dollars of equipment he "presumed to have been safeguarded until

finalization of the Court Proceedings." Mr. Yung therefore requests this Court to

remand the matter to the district court with "appropriate reimbursement

instructions."

The United States asserts this Court lacks jurisdiction because Mr. Yung's

appeal is untimely under Fed. R. App. P. 4(a)(1) and 4(b). In the alternative, the

United States argues this Court has no jurisdiction to afford relief against a civil

forfeiture action under Fed. R. Crim. P. 41(e). According to the government, Fed.

R. Crim. P. 41(e) cannot provide a jurisdictional basis for this appeal because

Fed. R. Crim. P. 54 precludes criminal rules from applying to civil forfeitures and

because there is no longer an active criminal proceeding connected with the

seizure of Mr. Yung's property. Both arguments are wholly without merit under

established Tenth Circuit precedent.
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First, although Fed. R. Crim. P. 41 (e) is contained in the Federal Rules of

Criminal Procedure, we have held a motion for return of property pursuant to Fed.

R. Crim. P. 41(e) is a "civil case" within the meaning of Fed. R. App. P. 4(a)(1)

and that the sixty-day period prescribed therein applies. United States v. Madden,

95 F.3d 38, 39 n.1 (10th Cir. 1996). Mr. Yung timely filed his appeal from the

district court's February 23, 1996, order on March 29, 1996, in accordance with

the rules.

Second, as to our jurisdiction to consider Mr. Yung's appeal, we have long

recognized that while Fed. R. Crim. P. 41(e) is part of the criminal rule governing

the issuance and execution of search warrants and suppression of evidence

obtained as a result of unlawful searches and seizures, the "[p]roceedings

surrounding the motion for return of property seized in a criminal case are civil in

nature." United States v Maez, 915 F.2d 1466, 1468 (10th Cir. 1990), cert.

denied, 498 U.S. 1104 (1991). We also have held the Fed. R. Crim. P. 41(e)

remedy may be available even if no criminal action currently is pending against

the party seeking the return of property. Madden, 95 F.3d at 40; United States v.

Clark, 84 F.3d 378, 381 (10th Cir. 1996); Floyd v. United States, 860 F.2d 999,

1006-07 (10th Cir. 1988). For example, we have instructed the district courts to

construe a Fed. R. Crim. P. 41(e) motion for return of property as an independent
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civil action based on equitable principles where the property was seized in a prior

nonjudicial forfeiture or as part of some other nonjudicial proceeding or

occurrence. See Madden, 95 F.3d at 40.

Since Mr. Yung is appearing pro se, we must construe his pleadings and

papers liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). A fair reading

of those pleadings and papers presents a due process challenge against forfeiture

proceedings that the record indicates were administrative as opposed to judicial. 

Accordingly, the fact that Mr. Yung brought his motion in the district court under

Fed. R. Crim. P. 41(e) does not defeat the court's jurisdiction to hear Mr. Yung's

forfeiture challenge. Clark, 84 F.3d at 381. "Due process attacks on forfeiture

proceedings may be pursued in a civil action under 28 U.S.C. § 1331." Id.

Having determined we have jurisdiction to decide this appeal, we conclude

a remand is necessary. Aside from Mr. Yung's statements regarding notice and

the posting of a $2,500 bond, and the government's assertion that it followed

administrative forfeiture proceedings under I.R.C. § 7203, the present record is

devoid of any facts concerning the nature and regularity of the forfeiture

proceedings. The district court made no findings and gave no indication it

considered the merits of Mr. Yung's claim for the return of the computer and
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electronic equipment. In the absence of such information, we are unable to

resolve the merits of Mr. Yung's claim.

As there must be a remand to permit further district court consideration of

Mr. Yung's claim, we wish to clarify our position on two issues inherent in that

claim: burden of proof and mootness. In cases such as this one where the

property in question is no longer needed for evidentiary purposes, we agree with

the Ninth Circuit that "[t]he person from whom the property is seized is presumed

to have a right to its return, and the government has the burden of demonstrating

that it has a legitimate reason to retain the property." United States v. Martinson,

809 F.2d 1364, 1369 (9th Cir. 1987) (footnote omitted). Thus far, the government

summarily has relied on the fact that, by virtue of the forfeiture proceedings, it no

longer possesses the computer and electronic equipment as its legitimate reason to

dispute Mr. Yung's claim for return of the property. In this regard, we again

agree with the Ninth Circuit that the government's lack of possession or control of

the property at issue does not render this case moot. Martinson, 809 F.2d at

1367-69. Mr. Yung's Fed. R. Crim. P. 41(e) motion necessarily requests equitable

relief. By assuming equitable jurisdiction to hear Mr. Yung's motion, the court

may award damages incident to his claim. Moreover, the remedy proposed by the

government -- a separate civil action pursuant to 28 U.S.C. § 1346(a)(2) or 28
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U.S.C. § 1491(a)(1) -- is inadequate considering the time and expense involved. 

This is particularly true where, as here, the court considering the Fed. R. Crim P.

41(e) motion already has jurisdiction over the matter and maintains its jurisdiction

as long as necessary to provide an adequate remedy to the movant. See id. Under

these circumstances, Mr. Yung should be allowed to amend his motion to request

damages if he so desires.

We REMAND this case to the district court for further proceedings

consistent with this opinion.

Entered for the Court:

WADE BRORBY

United States Circuit Judge