1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-13-1999

U.S. v. Chambers

Precedential or Non-Precedential:

Docket 97-5501

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Recommended Citation

"U.S. v. Chambers" (1999). 1999 Decisions. Paper 255.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/255
 UNITED STATES of America 

 v. 

 Ceverilo CHAMBERS, Appellant 

 No. 97-5501. 

 United States Court of Appeals, 

 Third Circuit. 

 Submitted Under Third Circuit LAR 34.1(a) Nov. 20, 

1998 

 Filed Sept. 13, 1999 

 On Appeal From the United States District Court For the District of New 

Jersey. (D.C. Criminal No.94-cr-00585-3) District Judge: Honorable 

Nicholas H. Politan. 

Ceverilo Chambers Pro se Appellant. 

George S. Leone, Esq., Perry Carbone, Esq., Office of United States 

Attorney, Newark, NJ, Attorneys for Appellee. 

Before: MANSMANN, RENDELL and STAPLETON, Circuit Judges 

 OPINION OF THE COURT 

RENDELL, Circuit Judge. 

We are asked to determine whether appellant's motion for return of 

property filed pursuant to Rule 41(e), Fed.R.Crim.P., is moot because the 

government no longer possesses the property that was seized at the time of 

appellant's arrest. We hold that a motion for return of property does not 

become moot merely because the government no longer retains the seized 

property. We further conclude that the District Court should have taken 

evidence to determine whether the government properly disposed of 

appellant's property. Accordingly, we will 

vacate the order of the District Court denying appellant's motion and will 

remand for further proceedings consistent with this opinion. 

 I. 

Ceverilo Chambers pled guilty to drug related offenses on February 28, 

1995, and was sentenced to a term of 62 months imprisonment. His 

conviction was affirmed by this Court on January 31, 1997. On June 10, 

1997, after criminal proceedings had ended, Chambers filed a motion for 

the return of property seized by the government when he was arrested. 

Specifically, he requested the return of a 1987 Road Ranger and a 1993 

Toyota Corolla, as well as company records, keys, and a wallet. 

In its response to the motion, the government asserted that the motion was 

moot because it no longer retained the property sought by Chambers. On 

July 23, 1997, the District Court denied Chambers' motion because it 

concluded that there was no property to be returned. Relying upon the 
government's assertions, the District Court stated that the 1987 Road 

Ranger had been forfeited, that the 1993 Toyota Corolla had been released 

to a repossession company, that the papers had been destroyed, and that 

the keys and the wallet had been returned to 

Chambers' girlfriend, at his request. 

Proceeding pro se and in forma pauperis, Chambers filed a timely notice of 

appeal from the denial of his motion for return of property. The appeal 

initially was referred to a panel of this Court for a determination 

whether the appeal should be dismissed pursuant to 28 U.S.C. § 1915(e)(2). 

The panel declined to dismiss the appeal as frivolous. Instead, the Court 

directed the government to submit documentation to support any statements 

regarding the 

disposition of Chambers' property. 

On appeal, the government argues that the District Court properly 

dismissed Chambers' motion for return of property because there was no 

longer any property to return. The government has provided documents 

indicating that the 1987 Road Ranger was administratively forfeited on 

April 14, 1995,1 that the 1993 Toyota was released to a repossession 

company, apparently on December 19, 1994,2 and that the papers were 

destroyed on May 15, 1996. Chambers requests that we direct the District 

Court to conduct fact-finding regarding the disposition of his 

property. 

_____________________________________________________________ 

1. The government also provided a document regarding a 1984 Trailer that 

was forfeited on January 27, 1995. Chambers does not raise any issues with 

respect to this vehicle, and we, therefore, will not consider it. 

2. Although the government states that the Toyota Corolla was released to 

the repossession company on December 19, 1994, we note that the document 

submitted in support of that statement contains two dates. The document 

contains the following printed and typewritten statement: "Executed in 

triplicate this 19th day of Dec. 1995." However, the dates handwritten 

next to each of the 

signatures of the parties who executed the Hold Harmless Agreement is "12-

19-94." If material, the District Court may resolve this factual question 

upon remand. 

_____________________________________________________________ 

 II. 

Before we turn to the merits of the appeal, we must address the threshold 

question of jurisdiction. See Steel Co. v. Citizens for a Better Env't, 

523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998). It is well 

settled that the 

government is permitted to seize evidence for use in investigation and 

trial, but that such property must be returned once criminal proceedings 

have concluded, unless it is contraband or subject to forfeiture. See 

United States v. 608 Taylor Ave., Apartment 302, 584 F.2d 1297, 1302 (3d 

Cir.1978); see also United States v. Wilson, 540 F.2d 1100, 1103 

(D.C.Cir.1976) (District Court has both the jurisdiction and duty to 

return property against which no government claim lies). A person 

aggrieved by the deprivation of property may file a motion under Rule 
41(e), Fed.R.Crim.P.,3 to request the return of that property. Government 

of Virgin Islands v. Edwards, 903 F.2d 267, 273 (3d Cir.1990). A District 

Court has jurisdiction to entertain a motion for return of property made 

after the termination of criminal proceedings against the defendant; such 

an action is treated as a civil proceeding for equitable relief. See 

United States v. Martinson, 809 F.2d 1364 (9th Cir.1987); Rufu v. United 

States, 20 F.3d 63 (2d Cir.1994); Thompson v. Covington, 47 F.3d 974, 975 

(8th Cir.1995). We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

review the District Court's decision to exercise its equitable 

jurisdiction for abuse of discretion. 

See Ramsden v. United States, 2 F.3d 322, 324 (9th Cir.1993). 

___________________________________________________ 

3. Fed.R.Crim.P. 41(e) reads: 

 Motion for Return of Property. A person aggrieved by an unlawful 

search 

and seizure or by the deprivation of property may move the district court 

for the district in which the property was seized for the return of the 

property on the ground that such person is entitled to lawful possession 

of the property. The court shall receive evidence on any issue of fact 

necessary to the decision of the motion. If the motion is granted, the 

property shall be returned to the movant, although reasonable conditions 

may be imposed to protect access and use of the property in subsequent 

proceedings. If a motion for return of property is made or comes on for 

hearing in the district of trial after an indictment or information is 

filed, it shall be treated also as a motion to suppress under Rule 12. 

_____________________________________________________ 

 III. 

The government asserts that it is obvious that in order for a District 

Court to grant a motion for return of property there must be something to 

return. This argument might succeed if the government had never had actual 

or constructive possession of the property at issue. See, e.g., United 

States v. Solis, 108 F.3d 722 (7th Cir.1997). 

However, that is not the case here. In essence, the government argues that 

Chambers' motion under Rule 41(e) is moot because the government no longer 

has anything to return.4 Such an argument has been rejected uniformly by 

the Courts of Appeals. See, e.g., United States v. Kanasco, Ltd., 123 F.3d 

209, 210 n. 1 (4th Cir.1997); Thompson v. Covington, 47 F.3d 974, 975 (8th 

Cir.1995) (per curiam); Mora v. United States, 955 F.2d 156, 160 (2d 

Cir.1992); Martinson, 809 F.2d at 1368; United States v. Francis, 646 F.2d 

251, 262-63 (6th Cir.1981); Mr. Lucky Messenger Serv., Inc. v. United 

States, 587 F.2d 15, 17 (7th Cir.1978). 

In Mora, the District Court had denied a prisoner's motion for return of 

property on the ground that it could not direct the government to return 

property that it no longer had. 955 F.2d 156 (2d Cir.1992). In holding 

that the 

motion for return of property was not moot, the Court of Appeals 

explained: 
 when the government gives away, loses or destroys a prisoner's 

property, such unilateral conduct on the government's part does not ... 

deprive the court ... of its jurisdiction. Rather, when a court has 

asserted its equitable jurisdiction over a matter, it retains that 

jurisdiction so long as necessary 

to afford appropriate relief to the movant. 

955 F.2d at 160. 

We agree and join those Courts that have held that a motion for return of 

property is not rendered moot merely because the government no longer 

possesses the seized property. 

Although this Court has not addressed the precise question presented here, 

we find support for our conclusion in our decision in United States v. 

Frank, 763 F.2d 551, 552 (3d Cir.1985). There, we reversed the District 

Court's order holding that it did not have jurisdiction to determine who 

was entitled to property sought through a motion for return of property.5 

We rejected the government's argument that the District Court did not have 

jurisdiction to 

return the property because the check at issue had been converted to cash 

proceeds and placed in funds in the Treasury, explaining that, "[t]he IRS, 

merely by converting the form of evidence, may not frustrate the district 

court's authority to control the disposition of evidence in a criminal 

prosecution." Id. at 553. Likewise, the government can not defeat a 

properly filed motion for return of property merely by stating that it has 

destroyed the 

property or given the property to third parties. 

_______________________________________________________ 

4. The concept of mootness as applied herein relates to the "mooting" of 

jurisdiction by virtue of lack of possession of the property in question. 

See United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir.1987). 

5. In Frank, defendant's business partners filed a motion for return of a 

check that was seized by the IRS on the ground that the check belonged to 

them. 

_______________________________________________________ 

We now turn to the second question presented in this matter: which party 

bears the evidentiary burden when a motion for return of property is made 

after the termination of criminal proceedings? Specifically, we must 

decide whether the District Court properly denied Chambers' motion solely 

on the strength of the government's representations that the property had 

been transferred to third parties, destroyed or forfeited. 

If a motion for return of property is made while a criminal prosecution is 

pending, the burden is on the movant to show that he or she is entitled to 

the property. Martinson, 809 F.2d at 1369. "Generally, a Rule 41(e) 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.' " United 
States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir.1991). The burden 

shifts to the government when the criminal proceedings have terminated. 

Martinson, 809 F.2d at 1369. At that point, the person from whom the 

property was seized is presumed to have a right to its return, and the 

government must demonstrate that it has a legitimate reason to retain the 

property. Id.; see also Edwards, 903 F.2d at 274 (after termination of 

criminal 

proceedings, the government must show "that it had a legitimate reason not 

to return the property to the person from whom it was seized"). The 

government may meet this burden by demonstrating "a cognizable claim of 

ownership or right to possession" adverse to that of the movant. Van 

Cauwenberghe, 934 F.2d at 1061. The government must do more than state, 

without documentary support, that it no longer possesses the property at 

issue. See Mora, 955 F.2d at 159. 

If, as in this case, the government asserts that it no longer has the 

property sought, the District Court must determine, in fact, whether the 

government retains possession of the property; if it finds that the 

government no longer possesses the property, the District Court must 

determine what happened to the property. Id. The District Court must hold 

an evidentiary hearing on any disputed issue of fact necessary to the 

resolution of the motion. See United States v. Dean, 100 F.3d 19, 21 (5th 

Cir.1996); United States v. Hess, 982 F.2d 181, 186 (6th Cir.1992). 

 IV. 

Because no evidence was offered or taken in this matter, the government 

did not meet its burden and the District Court did not discharge its duty 

under Rule 41(e). Accordingly, we will vacate the District Court's order 

denying appellant's motion for return of property and remand for further 

proceedings consistent with this opinion. Upon remand, the District Court 

shall determine whether it was proper for the government to surrender the 

1993 Toyota to the repossession company and to destroy appellant's 

business documents. If the District Court concludes that the government's 

actions in either regard were not proper, it shall determine what remedies 

are available. 

Inasmuch as Chambers has asserted that he was not provided notice of the 

forfeiture of the 1987 Road Ranger, the District Court shall permit him to 

amend his motion to assert this collateral attack upon the forfeiture. See 

Robinson 

v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972) (per curiam) 

(an order for forfeiture may be set aside if the manner of notice does not 

comport with due process); United States v. Marolf, 173 F.3d 1213, 1999 WL 

198913 (9th Cir. Apr.12, 1999) (constitutionally deficient notice of 

administrative forfeiture renders the forfeiture void); Clymore v. United 

States, 164 F.3d 569, 574 (10th Cir.1999) (where notice was 

constitutionally deficient and statute of limitations problems exist, 

forfeiture should be vacated and the statute of limitations allowed to 

operate, subject to any available government arguments against it); United 

States v. Volanty, 79 F.3d 86, 88 (8th Cir.1996) (when an administrative 

forfeiture is void for lack of notice, the forfeiture must be set aside 

and the government ordered to return the property or to commence judicial 

forfeiture in the District Court). 
Given the complexity of the issues in this matter, the District Court may 

wish to appoint counsel for Chambers upon remand.