Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-2121

UNITED STATES,

Appellee,

v.

JESUS ALBERTO URIBE-LONDONO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Torruella, Selya and Lipez,

Circuit Judges.

Jesus A. Uribe-Londono on brief pro se.

H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and

Germán A. Rieckenhoff, Assistant United States Attorneys, on

brief for appellee.

April 12, 2006
Although the parties cite Fed. R. Crim. P. 41(e), the 1

provision authorizing motions to return seized property is now

found at Fed. R. Crim. P. 41(g).

The government contends that we lack jurisdiction to review 2

these rulings because the notice of appeal was not filed within the

ten-day period for filing an appeal in a criminal case. See Fed.

R. App. P. 4(b). We will assume, without deciding, that this

appeal is timely. First, even if the ten-day period applies, the

prisoner mailbox rule, Fed. R. App. P. 4(c), would make the appeal

timely. Second, it may be that the Rule 41(g) motion should be

treated as a civil complaint for equitable relief, see United

States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995), the denial of

which is subject to the sixty-day appeal deadline applicable in

civil cases under Fed. R. App. P. 4(a)(1)(B). See United States v.

Potes Ramirez, 260 F.3d 1310, 1313 (11th Cir. 2001); United States

v. Bein, 214 F.3d 408, 412 n.3 (3d Cir. 2000). 

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Per Curiam. Appellant Jesus Alberto Uribe-Londono is

currently serving a 120-month sentence after having been convicted

of two counts of sexual exploitation of children, in violation of

18 U.S.C. § 2251. We affirmed the conviction and sentence on May

20, 2005. See United States v. Uribe-Londono, No. 02-2027, slip

op. (1st Cir. May 20, 2005) (per curiam). While the direct appeal

was pending, appellant filed a motion in the district court

requesting the return of seized property pursuant to Fed. R. Crim.

P. 41(g). Appellant now challenges the district court's denial 1

both of that motion and of his subsequent motion for

reconsideration. 

2

Rule 41(g) provides that "[a] person aggrieved by an

unlawful search and seizure or by the deprivation of property may

move the district court . . . for the return of property on the

ground that such person is entitled to lawful possession of the
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property. The court shall receive evidence on any issue of fact

necessary to the decision of the motion." A criminal defendant is

presumed to have the right to the return of his property once it is

no longer needed as evidence. United States v. Dean, 100 F.3d 19,

20 (5th Cir. 1996); United States v. Mills, 991 F.2d 609, 612 (9th

Cir. 1993). However, "[a] Rule 41[(g)] 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."

Mills, 991 F.2d at 612 (citations and internal quotation marks

omitted); see United States v. Duncan, 918 F.2d 647, 654 (6th Cir.

1990) (explaining that "a defendant's right to the return of

lawfully seized property is subject to any continuing interest the

government has in the property") The government's interest may

take a variety of different forms; what matters is that it is a

legitimate interest. Duncan, 918 F.2d at 654.

Oddly, the arguments both parties assert on appeal are

substantially different than those raised in the district court.

The government maintains that the documentary evidence and camera

equipment appellant seeks to have returned constitute derivative

contraband (and is, therefore, subject to forfeiture). In the

proceedings below, the government objected to returning the

property on the ground that it constituted evidence related to the

case, but it neither characterized the items as derivative
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contraband nor expressly claimed that they were subject to

forfeiture. 

Appellant seems to view the June 2, 2005, denial of his

motion for reconsideration as the equivalent of an order of

forfeiture and argues in his brief that the government's retention

of the items in question without initiating forfeiture proceedings

violates his due process rights. In the district court, however,

appellant seemed to concede that the government had a right to

retain case-related material and only disputed the government's

characterization of the items in question as such. Since both

parties failed to raise their forfeiture arguments before the

district court, they are not properly before us on appeal. See

Teamsters Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21

(1st Cir. 1992) ("If any principle is settled in this circuit, it

is that, absent the most extraordinary circumstances, legal

theories not raised squarely in the lower court cannot be broached

for the first time on appeal"). 

Given that the government did not expressly assert below

that the property was derivative contraband or otherwise subject to

forfeiture, the district court's failure to explain its denial of

appellant's motions or hold an evidentiary hearing to determine

whether the property in dispute was case-related would seem to

suggest that its rulings were not intended to adjudicate

appellant's ownership rights. Since at least some of the property
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appellant sought--e.g., the camera equipment used in committing the

crime and documentary materials that were found to contain contact

information for minors--obviously related to the underlying case,

it seems more likely that the district court simply concluded that

appellant's requests were premature and that the government had

adequately shown a need to retain the items as evidence until the

criminal proceedings had concluded. We see no error in that

ruling. See United States v. Saunders, 957 F.2d 1488, 1495 (8th

Cir. 1992)(holding that "[t]he motion for the return of paperwork,

even papers that were not introduced at trial, was premature

because defendant's direct appeal was still pending"). Now that

the criminal proceedings have concluded, appellant can renew his

request for return of property in the district court. To the

extent the government suggests that, even after criminal

proceedings have terminated, it may retain non-contraband items

without instituting forfeiture proceedings, we do not pass on that

argument as it has not been sufficiently briefed. 

Affirmed. See 1st Cir. Loc. R. 27(c).