UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-6959

BYRON JONES, a/k/a Carl Lee, a/k/a

"B,"

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CR-92-153-P)

Submitted: April 21, 1998

Decided: July 28, 1998

Before MURNAGHAN, WILKINS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Byron Jones, Appellant Pro Se. Robert Jack Higdon, Jr., OFFICE OF

THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Byron Jones appeals the denial of his Fed. R. Crim. P. 41(e) motion

for return of property, his motion for discovery of relevant documents, and his motions for reconsideration. Jones sought return of

non-contraband property seized in a search incident to his arrest in

April 1992. He filed his Rule 41(e) motion in June 1997. Finding that

Jones's motion was untimely, the district court denied the motion

under the equitable doctrine of laches and then denied Jones's motion

for discovery. Because we find that the district court did not make the

appropriate findings to warrant dismissal on laches grounds, we

vacate and remand for further proceedings.

We review the denial of a Rule 41(e) motion for abuse of discretion. See Ramsden v. United States, 2 F.3d 322, 324 (9th Cir. 1993).

Dismissal of a claim on the ground of laches requires that there be (1)

unreasonable and unexcused delay in bringing the claim and (2) material prejudice to the defendant as a result of the delay. See Potter

Instrument Co. v. Storage Technology Corp., 641 F.2d 190, 191 (4th

Cir. 1981). To establish a laches defense, both of the above prongs

must be met. Only then can the court weigh the delay and prejudice

to determine whether justice requires that the claim be barred. See

Giddens v. Isbrandtsen Co., 355 F.2d 125, 128 (4th Cir. 1966);

Advanced Cardiovascular Sys. v. Scimed Life Sys., 988 F.2d 1157,

1161 (Fed. Cir. 1993).

While we find that the district court did not abuse its discretion in

determining that a five year lapse between the seizure and Jones's

motion constituted unreasonable and inexcusable delay, the district

court was also required to find material prejudice to the Government

before applying the doctrine of laches. The Government has not

responded in this case, and the district court made no finding of prejudice sua sponte. Thus, the district court dismissed Jones's motion

under the laches doctrine without considering the mandatory second

prong of the test. In addition, we cannot infer prejudice, because the

Government never responded to the motion, and there is nothing in

the record to support such a finding. Instead, accepting Jones's allegations as true, this property has been in the Government's possession

 2
for over six years without the institution of a forfeiture proceeding.

We find that the denial of Jones's motion under these circumstances

was an abuse of discretion. See James v. Jacobson, 6 F.3d 233, 239

(4th Cir. 1993) (an abuse of discretion occurs when the district court's

exercise of discretion is flawed by an erroneous legal premise).

Accordingly, we vacate the district court's order and remand for

service of the motion on the Government and reconsideration of

whether the doctrine of laches applies. In addition, while we express

no opinion on the merits of Jones's discovery motion, he is free to

refile this motion in district court. We deny Jones's motion for

appointment of counsel. We dispense with oral argument, because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

VACATED AND REMANDED

 3