UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-7971

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NESTOR VLADAMIR SANDOVAL ROCA, a/k/a Poeta, a/k/a William 

Bladamir Mexmurillo Zapatero, a/k/a Stanley Turcio Palma, 

a/k/a William Santander Mendoza, a/k/a Hamilton Bachelet 

Soto, a/k/a Benjamil Ortiz, a/k/a William Zapatero, a/k/a 

Max, a/k/a Lzandra Santander Orester, a/k/a Jorge Alberto 

Medina Alonso,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. 

(8:10-cr-00472-RWT-1; 8:14-cv-00885-RWT)

Submitted: January 31, 2017 Decided: February 10, 2017

Before KEENAN and FLOYD, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Geoffrey J. Michael, Lindsay Vance Smith, ARNOLD & PORTER LLP, 

Washington, D.C., for Appellant. Arun G. Rao, Assistant United 

States Attorney, Alan Rozenshtein, Special Assistant United 

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Greenbelt, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Nestor Vladamir Sandoval Roca appeals the district court’s 

order denying as moot his Fed. R. Crim. P. 41(g) motion for 

return of property. The general rule is that seized property 

should be returned to the rightful owner after criminal 

proceedings have terminated, “unless it is contraband or subject 

to forfeiture.” United States v. Chambers, 192 F.3d 374, 376 

(3d Cir. 1999). Rule 41(g) allows a “person aggrieved . . . by 

the deprivation of property [to] move for [its] return.” Fed. 

R. Crim. P. 41(g). We review the denial of a motion for return 

of property under Rule 41(g) for an abuse of discretion. 

Chambers, 192 F.3d at 376. “A district court abuses its 

discretion if it fails adequately to take into account 

judicially recognized factors constraining its exercise, or if 

it bases its exercise of discretion on an erroneous factual or 

legal premise.” DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 

(4th Cir. 2008) (internal quotation marks omitted). 

Rule 41 may be utilized “to commence a civil equitable 

proceeding to recover seized property that the government has 

retained after the end of a criminal case.” Young v. United 

States, 489 F.3d 313, 315 (7th Cir. 2007); see United States v. 

Garcia, 65 F.3d 17, 20 (4th Cir. 1995) (recognizing “that a 

postconviction motion for return of property is a civil action” 

governed by Rule 41 that can be brought even “where no criminal 
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proceeding is pending”). During the pendency of a criminal 

prosecution, the movant bears the burden of demonstrating his 

entitlement to the return of the subject property; however, 

because a person from whom property was seized is presumed to 

have a right to its return, at the conclusion of the criminal 

proceedings, the burden shifts to the government to demonstrate 

a legitimate reason for retaining the property. Chambers, 192 

F.3d at 377; United States v. Van Cauwenberghe, 934 F.2d 1048, 

1061 (9th Cir. 1991). “The government may meet this burden by 

demonstrating a cognizable claim of ownership or right to 

possession adverse to that of the movant.” Chambers, 192 F.3d 

at 377 (internal quotation marks omitted). However, “[t]he 

government must do more than state, without documentary support, 

that it no longer possesses the property at issue.” Id. at 377-

78. 

While an evidentiary hearing is not a prerequisite for 

ruling on every Rule 41(g) motion, United States v. Albinson, 

356 F.3d 278, 281 (3d Cir. 2004), Rule 41(g) requires the court 

to “receive evidence on any factual issue necessary to decide 

the motion,” Fed. R. Crim. P. 41(g). If a disputed issue of 

fact exists “relating to the status of the property or what 

happened to it,” then the court should hold an evidentiary 

hearing to determine the chain of custody. Albinson, 356 F.3d 

at 284; see United States v. Stevens, 500 F.3d 625, 628 (7th 
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Cir. 2007) (resolution of “whether the Government still 

possesses the property at issue is a question of fact” which 

must be supported by evidence including sworn affidavits or 

other documents). While Rule 41(g) only pertains to the 

recovery of property actually seized and in possession of the 

Government, see Stevens, 500 F.3d at 628, “a motion for return 

of property is not rendered moot merely because the government 

no longer possesses the seized property.” Chambers, 192 F.3d at 

377.

Here, Roca’s Rule 41(g) motion alleged that his property, 

including the cash, was not forfeited, and he provided an 

affidavit to that effect. The criminal case against Roca is 

complete; therefore, the burden has shifted to the Government to 

show a legitimate reason not to return the property and cash. 

Id. Recognizing that it failed to produce any evidence in 

support of its claim that the cash was administratively 

forfeited, the Government has moved to remand this matter to the 

district court. 

We agree with the Government’s confession of error. We 

therefore grant the Government’s motion to remand, vacate the 

district court’s order denying Roca’s Rule 41(g) motion, and 

remand the matter for further proceedings consistent with this 

opinion. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 
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before this court and argument would not aid the decisional 

process.

VACATED AND REMANDED