In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1063

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAWRENCE STEVENS, also known

as SHADOW,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 02 CR 20037—Michael P. McCuskey, Chief Judge.

____________

SUBMITTED JULY 18, 2007—DECIDED AUGUST 31, 2007

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and

ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Lawrence Stevens, a federal inmate,

appeals from the denial of what he characterizes as a

“motion for return of property” in a criminal case that is

long over. For the reasons set forth in this opinion, we

vacate the judgment of the district court and remand

for further proceedings.
2 No. 07-1063

1 The Government, in its response to Mr. Stevens’ motion for

return of property, identifies $15,750 recovered from Mr.

Stevens’ bedroom, $1,580 found hidden above ceiling tiles and

another $31,982 also hidden above ceiling tiles. Theses amounts

come to a total of $49,312. However, the response states that

the total currency found was “approximately $40,000.” The

Government offers no explanation for these discrepancies in

its response.

I

BACKGROUND

In March 2002, two armed men robbed the Land of

Lincoln Credit Union (“Credit Union”) in Decatur,

Illinois, of $113,000. Nine days later one of the suspected

robbers, Alban Woods, was found shot to death. The

investigation of the robbery and murder led the police to

Mr. Stevens, who was staying at a house in Decatur. The

Macon County Sheriff’s Department secured the

premises and later executed a search warrant for the

residence. The search resulted in the seizure of various

items, including crack cocaine, firearms and ammunition,

a postal scale covered with cocaine residue, a cellular

phone, $49,312 in currency1

 and two cars—one Buick

Roadmaster and one Lincoln Towncar—that Mr. Stevens

had purchased with cash within days of the robbery.

Mr. Stevens was charged in a three-count indictment

with federal drug and firearms offenses stemming from

the search in the Central District of Illinois. In 2004, a

jury found Mr. Stevens guilty of the drug and firearms

offenses, and he was sentenced to a term of 327 months’

imprisonment to be followed by a consecutive term of life

imprisonment. The district court also imposed a special
No. 07-1063 3

assessment of $300, but the sentence made no reference

to any restitution or forfeiture of the items seized as a

result of the search of his home. We affirmed the conviction and sentence on direct appeal. See United States v.

Stevens, 380 F.3d 1021 (7th Cir. 2004).

In November 2006, Mr. Stevens filed a motion under the

docket number of his criminal case under Federal Rule of

Criminal Procedure 41(g); he demanded return of unspecified property seized in connection with that prosecution.

Mr. Stevens attached a letter from the Illinois State’s

Attorney for Macon County, which informed him that

property, other than that identified in a state forfeiture

proceeding, had been handled by federal authorities. The

district court ordered a response, and the Government

replied that the motion should be denied on the ground

that it no longer possessed any of the items seized during

the search of Mr. Stevens’ Decatur residence. The Government stated that items seized had been disposed of as

follows:

(1) Both cars had been forfeited judicially in proceedings in the Central District of Illinois.

(2) The $15,750 found in Mr. Stevens’ room and the

$1,580 found hidden above ceiling tiles had been

used as evidence in Mr. Stevens’ criminal trial and

subsequently turned over to the Macon County

Sheriff’s Department for state forfeiture proceedings identified in the letter attached to Mr. Stevens’

motion.

(3) The cellular phone and postage scale had been

used as evidence in Mr. Stevens’ federal criminal

trial and subsequently had been destroyed by the

clerk of the court.
4 No. 07-1063

(4) The crack likewise had been used as evidence in

Mr. Stevens’ federal criminal trial and subsequently had been returned to the Macon County

Sheriff’s Department, which, in turn, had destroyed the crack.

(5) The guns and ammunition also had been used in

Mr. Stevens’ federal criminal trial and subsequently had been turned over to the Macon County

Sheriff’s Department for use in its investigation

into the murder of Woods, Mr. Stevens’ suspected

confederate in the Credit Union robbery.

(6) The $31,982 recovered from the ceiling tiles had

been turned over to the Federal Bureau of Investigation (“FBI”) for its investigation into the robbery of the Credit Union and subsequently was

returned to the Credit Union by the FBI.

The Government offered no evidence in support of these

assertions in its response brief.

The Government also informed the district court that

Mr. Stevens’ motion must be treated as a civil proceeding

and, therefore, was governed by the Prison Litigation

Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321

(1996) (“PLRA”).

The day after receiving the Government’s response

brief, the court denied Mr. Stevens’ motion. In the order

denying the motion, the court summarized the Government’s “arguments” and stated that it agreed with them.

The court did not address the PLRA’s procedural requirements.

Mr. Stevens then filed a reply to the Government’s

response. In this document, Mr. Stevens identified the
No. 07-1063 5

2 Federal Rule of Criminal Procedure 41(g) provides:

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 the court 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.

specific items he wanted returned. These items included

the currency, cars, cellular phone and postage scale

identified in the Government’s response brief. Mr. Stevens

also identified several items of clothing and jewelry, a

pager and videos that he alleged also had been seized.

Further, Mr. Stevens asserted that no forfeiture actions

had been conducted with respect to his vehicles.

After evaluating Mr. Stevens’ reply, the district court

concluded that it found “no reason to change its conclusion” that Mr. Stevens was “not entitled to the relief

sought.” The court then denied as moot Mr. Stevens’

pending application to proceed in forma pauperis on

his motion for return of property.

II

DISCUSSION

Mr. Stevens appeals the district court’s denial of his

motion for return of property. Rule 41(g) of the Federal

Rules of Criminal Procedure provides a mechanism by

which criminal defendants may recover property seized

by the Government.2

 We have held that a federal prisoner

may employ Rule 41(g) post-trial to recover evidence that
6 No. 07-1063

3 The only proper object of a Rule 41(g) motion is recovery of

actual property seized. See United States v. Sims, 376 F.3d 705, 708

(7th Cir. 2004); Okoro v. Callaghan, 324 F.3d 488, 491 (7th Cir.

2003). Such a motion will not support a claim against the

Government for restitution or recovery of the proceeds of a

forfeiture proceeding.

We have recognized that a federal prisoner may assert a civil

action challenging the forfeiture of property on due process

grounds based on the allegation that he had not received notice

of the forfeiture proceedings. See United States v. Howell, 354 F.3d

693, 695 (7th Cir. 2004) (comparing a civil action to recover

property taken without due process of law with a Rule 41(g)

motion for the return of property). At least two of our sister

circuits have held that district courts should construe a Rule

41(g) motion for the return of property as a civil complaint

alleging a due process violation when the motion seeks to

challenge a forfeiture rather than to recover specific property.

See, e.g., Taylor v. United States, 483 F.3d 385, 387 (5th Cir. 2007);

United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996). Although

we have not addressed that particular issue, we need not

determine whether the district court should have construed

Mr. Stevens’ motion as a complaint in a new civil case. Even

though Mr. Stevens does assert that he received no notice of any

forfeiture proceedings, his arguments before the district court

and in this court reveal that he seeks to recover specific property, not restitution or the proceeds from a forfeiture proceeding.

Indeed, Mr. Stevens denies that any forfeiture proceeding

actually occurred.

the Government no longer needs. See United States v. Sims,

376 F.3d 705, 708 (7th Cir. 2004). However, Rule 41(g)

permits only the recovery of property in the possession

of the Government. Therefore, if the Government no longer

possesses the property at issue, no relief is available under

Rule 41(g).3 See Okoro v. Callaghan, 324 F.3d 488, 491 (7th

Cir. 2003).
No. 07-1063 7

4 Although the district court would be entitled to take judicial

notice of the federal forfeiture proceedings related to the

vehicles seized and the state forfeiture proceeding related to a

portion of the cash seized, see Fed. R. Evid. 201(a)-(b) (providing

for judicial notice of adjudicative facts “capable of accurate

and ready determination by resort to sources whose accuracy

cannot reasonably be questioned”); Opoka v. INS, 94 F.3d 392,

(continued...)

The Government contends, and the district court agreed,

that Mr. Stevens was not entitled to the return of property

under Rule 41(g) because the Government no longer

possesses the property he seeks to recover. However,

whether the Government still possesses the property at

issue is a question of fact. Rule 41(g) provides that the

district court “must receive evidence on any factual issue

necessary to decide the motion.” Fed. R. Crim. P. 41(g). As

this provision makes clear, any factual determinations

supporting the court’s decision must be based on evidence

received. This requirement does not mean that a district

court must conduct an evidentiary hearing to resolve all

factual disputes. It does require, however, that the district court receive evidence to resolve factual disputes. See

United States v. Albinson, 356 F.3d 278, 281-82 (3d Cir. 2004).

Such evidence may come, for example, in the form of

sworn affidavits or documents verifying the chain of

custody of particular items. Id. at 282.

Here, the district court received no evidence regarding

the Government’s possession of the property Mr. Stevens

sought to recover. The court stated simply that it agreed

with the Government’s arguments in its brief. However,

arguments in a Government brief, unsupported by documentary evidence, are not evidence.4 See Campania Mgmt.
8 No. 07-1063

4 (...continued)

394 (7th Cir. 1996) (recognizing proceedings of state and federal courts as the proper subject of judicial notice), the district

court did not state in its order that it had done so in this

case, nor did the Government request that it do so. In any event,

even if the district court were to take judicial notice of these

proceedings, factual issues remain as to the other property

seized.

Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir. 2002)

(“[I]t is universally known that statements of attorneys

are not evidence.”); see also Albinson, 356 F.3d at 281

(“[T]he government must do more than state, without

documentary support, that it no longer possesses the

property at issue.” (citing United States v. Chambers, 192

F.3d 374, 377-78 (3d Cir. 1999)). As such, the district court

failed to receive evidence to support its factual determinations as required by Rule 41(g).

We add that we have stated previously that a Rule 41(g)

motion is a civil action for purposes of the PLRA, and thus

subject to the PLRA’s provisions on remand. See United

States v. Howell, 354 F.3d 693, 695 (7th Cir. 2004); see also

United States v. Jones, 215 F.3d 467, 469 (4th Cir. 2000) (per

curiam).

Conclusion

Accordingly, we vacate the judgment of the district

court and remand for further proceedings consistent

with this opinion. On remand, the district court should

receive evidence and make the appropriate factual findings

with respect to the current status of the property

Mr. Stevens seeks to recover.

VACATED and REMANDED
No. 07-1063 9

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-31-07