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. e du/thir dc ir c uit_1999/255UNITED STATES of Am erica

v. Ceverilo CHAMBERS, App ellant

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 Fo r the District of New Jersey. (D.C. Criminal No.94-cr-00585-3) District J udge: 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 Ju dges

OPINION OF THE COUR T

RENDELL, Circuit Judge.

We are asked to determine whether appellant's motio n 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 wa s seized at the time of appellant's arrest. We hold that a motion for retur n of property does not become moot merely because the government no longer retains the seized property. We further conclude that the District Cou rt should have taken evidence to determine whether the government proper ly disposed of appellant's property. Accordingly, we will vacate the order of the District Court denying appe llant's motion and will remand for further proceedings consistent with this opinion.

I.

Ceverilo Chambers pled guilty to drug related offen ses on February 28, 1995, and was sentenced to a term of 62 months impr isonment. His conviction was affirmed by this Court on January 31 , 1997. On June 10, 1997, after criminal proceedings had ended, Chamber s filed a motion for the return of property seized by the government whe n he was arrested. Specifically, he requested the return of a 1987 Roa d Ranger and a 1993 Toyota Corolla, as well as company records, keys, a nd a wallet.

In its response to the motion, the government asser ted that the motion was moot because it no longer retained the property sou ght 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 thegovernment's assertions, the District Court stated that the 1987 Road

Ranger had been forfeited, that the 1993 Toyota Cor olla 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 f iled 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 frivolo us. 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 b ecause there was no longer any property to return. The government has p rovided documents indicating that the 1987 Road Ranger was administra tively 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 w e direct the District Court to conduct fact-finding regarding the disposi tion of his property.

___________________________________________________ __________ 1. The government also provided a document regardin g a 1984 Trailer that was forfeited on January 27, 1995. Chambers does no t raise any issues with respect to this vehicle, and we, therefore, will no t consider it.

2. Although the government states that the Toyota C orolla was released to the repossession company on December 19, 1994, we n ote that the document submitted in support of that statement contains two dates. The document contains the following printed and typewritten stat ement: "Executed in triplicate this 19th day of Dec. 1995." However, th e dates handwritten
next to each of the signatures of the parties who executed the Hold Har mless 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 i n 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, 58 4 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 jurisdi ction and duty to return property against which no government claim l ies). A person aggrieved by the deprivation of property may file a motion under Rule41(e), Fed.R.Crim.P.,3 to request the return of tha t 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 re turn of property made after the termination of criminal proceedings again st the defendant; such an action is treated as a civil proceeding for equi table 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. Covin gton, 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 it s 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 aggrie ved by an unlawful
search and seizure or by the deprivation of property may m ove the district court for the district in which the property was seized f or the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence o n any issue of fact necessary to the decision of the motion. If the mot ion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the pro perty in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictmen t or information is filed, it shall be treated also as a motion to supp ress under Rule 12.

___________________________________________________ __

III.

The government asserts that it is obvious that in o rder for a District Court to grant a motion for return of property ther e must be something to return. This argument might succeed if the governme nt 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 t he 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 Stat es v. Francis, 646 F.2d 251, 262-63 (6th Cir.1981); Mr. Lucky Messenger Ser v., 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 Ci r.1992). In holding
that the motion for return of property was not moot, the Cou rt of Appeals explained:when the government gives away, loses or destr oys 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 go vernment no longer possesses the seized property.

Although this Court has not addressed the precise q uestion 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 r eversed the District Court's order holding that it did not have jurisdic tion to determine who was entitled to property sought through a motion fo r return of property.5 We rejected the government's argument that the Dist rict 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, expla ining that, "[t]he IRS, merely by converting the form of evidence, may not frustrate the district court's authority to control the disposition of evi dence 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 relate s 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 thi s matter: which party bears the evidentiary burden when a motion for retu rn of property is made after the termination of criminal proceedings? Spec ifically, we must decide whether the District Court properly denied C hambers' motion solely on the strength of the government's representations that the property had been transferred to third parties, destroyed or for feited.

If a motion for return of property is made while a criminal prosecution is pending, the burden is on the movant to show that h e or she is entitled to the property. Martinson, 809 F.2d at 1369. "General ly, a Rule 41(e) motion
is properly denied 'if the defendant is not entitled t o lawful possession of the seized property, the property is contraband or subject to forfeiture or the government's need for the property as eviden ce continues.' " UnitedStates v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9t h Cir.1991). The burden

shifts to the government when the criminal proceedi ngs have terminated. Martinson, 809 F.2d at 1369. At that point, the per son from whom the property was seized is presumed to have a right to its return, and the government must demonstrate that it has a legitimat e reason to retain the property. Id.; see also Edwards, 903 F.2d at 274 (a fter 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 w as seized"). The government may meet this burden by demonstrating "a cognizable claim of ownership or right to possession" adverse to that o f the movant. Van Cauwenberghe, 934 F.2d at 1061. The government must do more than state, without documentary support, that it no longer poss esses 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 i t finds that the government no longer possesses the property, the Di strict Court must determine what happened to the property. Id. The Di strict Court must hold an evidentiary hearing on any disputed issue of fac t 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 ma tter, 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 D istrict Court's order denying appellant's motion for return of property a nd remand for further proceedings consistent with this opinion. Upon rema nd, the District Court shall determine whether it was proper for the gover nment to surrender the 1993 Toyota to the repossession company and to dest roy 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 p rovided notice of the forfeiture of the 1987 Road Ranger, the District Co urt shall permit him to
amend his motion to assert this collateral attack u pon the forfeiture. See
Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 4 7 (1972) (per curiam) (an order for forfeiture may be set aside if the ma nner 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 de ficient notice of
administrative forfeiture renders the forfeiture vo id); Clymore v. United States, 164 F.3d 569, 574 (10th Cir.1999) (where no tice was constitutionally deficient and statute of limitatio ns problems exist,
forfeiture should be vacated and the statute of lim itations allowed to operate, subject to any available government argume nts against it); United States v. Volanty, 79 F.3d 86, 88 (8th Cir.1996) (w hen an administrative forfeiture is void for lack of notice, the forfeitu re must be set aside and the government ordered to return the property o r 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.