[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-15632

Non-Argument Calendar

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D.C. Docket No. 8:14-cr-00123-CEH-MAP-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

JAMES LEE COBB, III, 

 Defendant - Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(August 9, 2017)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM: 

Defendant James Lee Cobb, III (“Defendant”), proceeding pro se, appeals

the district court’s denial of his motion under Fed. R. Crim. P. 41(g) for the return 

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of property seized during the investigation of his underlying criminal case. 

Concluding that the district court did not err in denying Defendant’s motion, we 

affirm. 

I. BACKGROUND

In December 2014, Defendant pled guilty without a plea agreement to 

various criminal charges related to wire fraud, identity theft, and unlawful 

possession of a firearm. Although the superseding indictment contained forfeiture 

provisions, these provisions did not cover the items at issue in this appeal. The 

court sentenced Defendant to 324 months’ imprisonment and five years of 

supervised release. 

After his sentencing, Cobb filed a motion under Fed. R. Crim. P. 41(g)1 for 

return of property confiscated during a search of his home. He sought the return of 

five vehicles,2 two flat-screen televisions, three pieces of white-gold jewelry, and 

two pieces of yellow-gold jewelry. He argued that the confiscated property was 

 1

 Rule 41(g) reads:

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.

2

 The five vehicles listed were a 2007 Chevy Silverado, a 1988 Nissan Sentra, a 2005 Kawasaki 

Ninja ZX 10, a 2005 Cadillac XLR, and a 2002 Ford Focus. 

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not relevant to his criminal case and thus was seized in violation of his Fourth and 

Fourteenth Amendment rights. 

In its initial reply to Defendant’s motion, the Government argued, among 

other things, that returning Defendant’s property would be premature, as 

Defendant was appealing his criminal conviction. The Government noted it would 

need to maintain all existing evidence in the event Defendant’s appeal succeeded. 

If Defendant’s conviction was affirmed, the Government would then consider 

whether to return any property it possessed.3

 Alternatively, the Government 

observed that the personal property could properly be used to help satisfy part of 

the $1.8 million in restitution previously ordered by the district court. In a 

supplemental response filed two days later, the Government advised that it had 

learned that the federal government did not have possession of any of the five 

vehicles whose return was sought by Defendant in his motion and that the City of 

Tampa, having earlier released some of the vehicles, was in the process of 

auctioning off any remaining vehicles.

4 The Government attached portions of a 

report from the Tampa Police Department indicating that the Department had 

 3

 This Court affirmed Defendant’s convictions and sentences in his direct appeal several months 

after his Rule 41(g) motion was denied. See United States v. Cobb, 842 F.3d 1213, 1215 (11th 

Cir. 2016). 

4

 The Tampa Police Department had worked with the federal government in the investigation of 

Defendant and it was purportedly the entity that had custody of vehicles listed in Defendant’s 

motion. 

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seized the televisions and vehicles listed in Defendant’s motion. The records 

further indicated two of the vehicles purportedly owned by Defendant—a 1988 

Nissan Sentra and a 2005 Kawasaki Ninja ZX 10—had been authorized for release 

by Sharla Canfield, a detective with the Tampa Police Department, though the 

records did not indicate to whom the vehicles were released. The remaining three 

vehicles had either already been auctioned or were scheduled to be auctioned a 

week after the Government filed its supplemental response. 

In a second supplemental response, the Government noted that the yellowgold jewelry referenced in Defendant’s motion was never seized by law 

enforcement, and included an affidavit from Canfield so testifying. The 

Government also included an affidavit from IRS special agent Glenn Hayag, who 

testified as well that the yellow-gold jewelry was not seized and that the 

Government was still holding the white-gold jewelry for evidence. Over 

Defendant’s objection,5 the district court adopted the magistrate judge’s Report 

and Recommendation, and denied Defendant’s motion. 

Defendant appeals the district court’s denial of his motion. In his appellate 

brief, Defendant addresses only the vehicles that were auctioned or released, so we 

 5

 Defendant argued that his property was seized without a valid warrant, that the federal 

government did not have jurisdiction to hold the property and did not need to continue to hold it, 

and that the federal government and the Tampa Police Department had conspired to steal his

property. He did not discuss, however, the impact of the release and auction of his vehicles on 

the viability of his Rule 41(g) motion.

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affirm the district court’s denial of Defendant’s motion as to the jewelry and 

televisions. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 

(11th Cir. 2014) (collecting cases from this Circuit holding that arguments or 

claims not raised in an opening brief are abandoned). We now turn to Defendant’s 

claims regarding the vehicles. 

II. DISCUSSION

A. Whether the District Court Properly Denied Defendant’s Rule 

41(g) Motion

The district court held that Rule 41(g) does not provide relief for Defendant 

because the federal government was not in possession of any of the vehicles. A 

district court’s conclusions of law in denying a motion for return of seized property 

are reviewed de novo, and factual findings are reviewed for clear error. United 

States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005). The ultimate decision of 

whether to deny a Rule 41(g) motion is reviewed under the abuse of discretion 

standard. United States v. De La Mata, 535 F.3d 1267, 1279 (11th Cir. 2008). 

When an individual moves for return of his property under Rule 41(g) after 

the close of criminal proceedings, the motion is treated as a civil action in equity. 

Howell, 425 F.3d at 974. To prevail, he must show a possessory interest in the 

property seized and that he has “clean hands.” Id. The court can deny a motion if 

the Government claims it no longer possesses the property, provided the 

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Government provides some evidence to support that claim. See United States v. 

Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001). 

Defendant argues on appeal that the district court erred in denying his 

motion because the vehicles had not been properly released or sold. Defendant 

asserts that there is no evidence in the record that a court authorized the auction of 

the three vehicles that were sold, nor that a Florida state court had jurisdiction to 

order the distribution of federal evidence. Defendant also argues that the Sentra 

and Ninja were improperly released because he, as the vehicles’ owner, never 

authorized anyone to take possession of them. 

As far as we can determine, none of the five vehicles at issue were ordered 

forfeited by a state or federal court as part of Defendant’s criminal conviction. For 

that reason, we understand Defendant’s frustration at what he claims was the 

absence of any meaningful notice to him6 that the Tampa Police Department was 

releasing these vehicles and the absence of any meaningful opportunity to contest 

their release or sale. Nevertheless, we cannot order the federal government to 

return something that it does not possess. And there seems to be no dispute that it 

was the Tampa Police Department, not the federal government, that exercised

 6 Defendant acknowledges that the Department sent out notices of the impending auction, but 

argues that because those notices were sent to his home address, at a time when he was in federal 

custody, he did not receive them.

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custody over the vehicles, released the vehicles to persons it deemed authorized to 

possess them, and auctioned the remaining vehicles. 

As the United States cannot return something it does not have, the court 

cannot order it to return to Defendant the vehicles listed in the motion. While this 

alone might not necessarily leave Defendant without a remedy, see Potes Ramirez, 

260 F.3d at 1314–15 (noting that a district court can exercise equitable jurisdiction 

over a motion to return property even if the court determines that the federal 

government has destroyed the property), Defendant has made no argument that it 

was the federal government, as opposed to the Tampa Police Department, that 

released and/or auctioned the vehicles.

B. Whether an Evidentiary Hearing was Required

Defendant also argues that the district court erred by not holding an 

evidentiary hearing. Defendant states that an evidentiary hearing would give him 

an opportunity to address the allegedly conflicting evidence as to the Tampa Police 

Department’s authority to release or auction the vehicles, the Tampa Police 

Department’s various failures to notify Defendant and his defense counsel 

concerning the impending auction, and the validity of documents provided by the 

Tampa Police Department. 

A district court’s denial of an evidentiary hearing is reviewed for abuse of 

discretion. See Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). In 

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reviewing a Rule 41(g) motion, “[t]he court must receive evidence on any factual 

issue necessary to decide the motion.” Fed. R. Crim. P. 41(g). The movant is 

presumed to have a right to an item’s return, so the Government must demonstrate 

it has a legitimate reason to retain the property. Potes Ramirez, 260 F.3d at 1314 

(quoting United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999)). The 

district court has discretion to determine whether the Government has made the 

necessary showing. Id. (“We leave it to the district court’s discretion on remand to 

determine how the government should present evidence of the property’s 

destruction.”).

Defendant’s reliance on Potes Ramirez in arguing for an evidentiary hearing 

is misplaced. In Potes Ramirez, the Government pointed to no evidence in the 

record and offered no verification of or support for its claim that the property being 

sought was no longer in its custody. Id. Here, in contrast, the Government 

presented evidence confirming that the items Defendant seeks were not in its 

possession; Defendant has not disputed that evidence. 

Accordingly, the district court did not abuse its discretion by refusing to hold 

an evidentiary hearing in this case.

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III. CONCLUSION

For the above reasons, we conclude the district court properly denied 

Defendant’s Rule 41(g) motion for the return of his property, and its order is 

AFFIRMED.

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