2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-29-2004

USA v. Albinson

Precedential or Non-Precedential: Precedential

Docket No. 01-1265

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"USA v. Albinson" (2004). 2004 Decisions. Paper 1036.

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 PRECEDENTIAL

UNITED STATES

COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1265

UNITED STATES OF AMERICA

v.

STANLEY A. ALBINSON,

 Appellant

On Appeal from the

United States District Court for the

Eastern District of Pennsylvania

D.C. Criminal No. 95-cr-00019

(Honorable Lowell A. Reed, Jr.)

Argued October 28, 2003

Before: SCIRICA, Chief Judge,

NYGAARD and AMBRO,

Circuit Judges

(Filed January 27, 2004)

JENNIFER B. SAULNIER, ESQUIRE

(ARGUED)

Jones Day

One Mellon Bank Center

500 Grant Street, Suite 3100

Pittsburgh, Pennsylvania 15219

Attorney for Appellant

ERIC B. HENSON, ESQUIRE

(ARGUED)

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, Pennsylvania 19106

Attorney for Appellee

OPINION OF THE COURT

SCIRICA, Chief Judge.

Stanley A. Albinson appeals the

denial of his motion for return of

property filed under Fed. R. Crim. P.

41(g) (formerly Fed. R. Crim. P. 41(e))1

without an evidentiary hearing. The

government asserted that it no longer

retained possession of the seized

property. At issue is whether the District

Court was required to conduct an

evidentiary inquiry as set forth in United

States v. Chambers, 192 F.3d 374 (3d

Cir. 1999). We will reverse and remand.

 

1

Fed. R. Crim. P. 41 was amended in

2002 “as part of a general restyling of the

Criminal Rules to make them more easily

understood and to make style and

terminology consistent throughout the

rules.” See Fed. R. Crim. P. 41 advisory

committee notes. As a result of the 2002

amendments, the previous Fed. R. Crim.

P. 41(e) now appears with minor stylistic

changes as Rule 41(g). For consistency,

we will refer only to Fed. R. Crim. P.

41(g) even though Albinson filed his

motion under Fed. R. Crim. P. 41(e) and

most of the relevant case law refers to

the previous rule.
I.

On February 24, 1994, FBI and

Naval Investigative Service agents acting

under a search warrant seized property2

from the garage and residence of Stanley

A. Albinson at 69 Mine Run Road in

Limerick, Pennsylvania. On February

10, 1995, Albinson was arrested for the

unauthorized sale of United States

property in violation of 18 U.S.C. § 641. 

The indictment alleged Albinson sold

United States property to government

agents on six occasions in 1993. The

indictment did not, however, charge

Albinson with any offense related to the

property seized during the 1994 search. 

On April 24, 1995, Albinson

entered a guilty plea on all six counts of

the indictment. Albinson subsequently

attempted to withdraw his guilty plea, but

the District Court denied his motion. On

February 18, 1998, Albinson was

sentenced to 15 months in prison, plus

three years of supervised release.

On April 21, 1998, while serving

his sentence, Albinson filed a pro se

motion for return of property under Fed.

R. Crim. Pro. 41(g). Albinson sought

return of “every item listed on the seizure

warrant/property list and those items

seized where no receipt was given.” 

App. 124. Albinson alleged he had been

deprived of property by the government

and that the seizures were “made by

government agents/employees.” Id. On

August 2, 1998, Albinson filed a pro se

motion for summary judgment on his

Rule 41(g) motion. The government did

not respond to either motion.

On May 14, 1999, the District

Court entered a default judgment in favor

of Albinson, and ordered the government

to return the seized property by June 15,

1999. The District Court also ordered

the government to file a “verified

declaration based on first hand

knowledge” for each item that “had been

lost, destroyed [or] misplaced,”

describing the “reasons why the property

cannot be returned . . . to hold an

evidentiary hearing thereon.” App. 16. 

On June 15, 1999, the government

responded that it was “physically unable

to comply” with the order, because

certain property had been returned to

Albinson, and the remaining items had

been either acquired by third parties or

destroyed. App. 146. The government

submitted no documentary evidence in

support of its response. It simultaneously

filed a motion for reconsideration

requesting an opportunity to respond to

Albinson’s motions. The District Court

granted the motion for reconsideration,

and the government responded to

Albinson’s motions.

On January 16, 2001, the District

Court denied Albinson’s Rule 41(g)

motion without conducting an

evidentiary hearing. United States v.

 

2The inventory of seized property lists

over 200 items, including floor tiles, tool

kits, ethanol, batteries, a pump and

motor, ovens, stainless steel sinks,

computer modems, rolodex records, ear

plugs and trousers. Supp. App. 29-42.
Albinson, No. 95-19-01, 2001 U.S. Dist.

LEXIS 374 (E.D. Pa. Jan. 17, 2001). 

The District Court found the government

failed to carry its burden of proving a

“cognizable claim of ownership or right

of possession” in the seized property, but

denied the motion nevertheless. Id. at

*7. The District Court determined the

government had irrevocably lost or

destroyed the seized property, and

therefore this Court’s holding in United

States v. Bein, 214 F.3d 408 (3d Cir.

2000), rendered it “powerless” to award

monetary damages in lieu of returning

the seized property. Albinson, 2001 U.S.

Dist. LEXIS 374, at *15. The District

Court concluded that an evidentiary

hearing was “not required in light of the

futile outcome.” Id. at *16.

Albinson timely filed this appeal.3

II.

A.

Property seized by the government

as part of a criminal investigation “must

be returned once criminal proceedings

have concluded, unless it is contraband

or subject to forfeiture.”4 Chambers, 192

F.3d at 376. Under Fed. R. Crim. P.

41(g),

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

court must receive

evidence on any factual

issue necessary to decide

the motion. If it 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.

Fed. R. Crim. P. 41(g) (emphasis added). 

At the conclusion of a criminal

proceeding, the evidentiary burden for a

Rule 41(g) motion shifts to the

government to demonstrate it has a

legitimate reason to retain the seized

property. Chambers, 192 F.3d at 377. 

The burden on the government is heavy

because there is a presumption that the

person from whom the property was

taken has a right to its return. Id.

The District Court held, and the

parties do not dispute, that the

government failed to meet its burden on

Albinson’s Rule 41(g) motion. Albinson,

2001 U.S. Dist. LEXIS 374, at *9. 

Indeed, the District Court concluded that

Albinson’s “motion probably would be

granted as to the items on the inventory

 

3We exercise appellate jurisdiction

over the District Court’s denial of the

Rule 41(g) motion under 28 U.S.C. §

1291. United States v. Pantelidis, 335

F.3d 226, 233-34 (3d Cir. 2003).

 

4

It is undisputed that the property

seized during the 1994 search is neither

contraband nor subject to forfeiture.
lists,” but for the perceived futility of

granting such an order. Id. Albinson

argues the District Court abused its

discretion by denying his Rule 41(g)

motion without conducting an

evidentiary hearing and instead relying

solely on the government’s

representations that it no longer retained

possession of the seized property. 

Albinson contends that even if the

District Court properly determined that

the seized property is “physically

unavailable,” he is entitled to a hearing to

determine what happened to the property. 

The government responds that because

Albinson failed to contest its

representations in the District Court,

there were no disputed issues of fact

which required an evidentiary hearing.

We review the District Court’s

decision to “exercise its equitable

jurisdiction” under Fed. R. Crim. P.

41(g) for abuse of discretion.5 

Chambers, 192 F.3d at 376.

B.

Rule 41(g) directs a district court

to “receive evidence” on issues of fact

necessary to dispose of the motion. Fed.

R. Crim. P. 41(g). We provided more

specific guidance on the scope of this

evidentiary inquiry in United States v.

Chambers, 192 F.3d 374 (3d Cir. 1999). 

In that case, petitioner Chambers filed a

Rule 41(g) motion for return of property

seized by the government during his

arrest. Id. at 375. The government

argued Chambers’ motion was moot

because it no longer retained possession

of the seized property. Id. The district

court agreed, and denied Chambers’

motion based on representations by the

government that the property at issue had

been forfeited, repossessed, returned or

destroyed, and therefore could not be

returned. Id. We reversed on appeal,

concluding that 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.” Id. at 377. 

Rather, “[t]he government must do more

than state, without documentary support,

that it no longer possesses the property at

issue.” Id. at 377-78.

We also held that a district court

must make certain evidentiary inquiries

before deciding a Rule 41(g) motion for

return of property:

If . . . the

government asserts that it

no longer has the property

 

5

 We do not reach the merits of the

District Court’s decision to deny

Albinson’s Rule 41(g) motion. On

appeal, we consider only the District

Court’s decision to not conduct an

evidentiary hearing prior to deciding

Albinson’s Rule 41(g) motion, and we

review that decision for abuse of

discretion. We note, however, that other

courts of appeals have reviewed de novo

the grant or denial of Rule 41(g) motions

after the conclusion of criminal

proceedings. See, e.g., United States v.

Potes, 260 F.3d 1310, 1314 n.8 (11th Cir.

2001).
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. The District Court

must hold an evidentiary hearing

on any disputed issue of fact

necessary to the resolution of the

motion . . . .

. . . If the District

Court concludes that the

government’s actions in

either regard were not

proper, it shall determine

what remedies are

available.

Id. at 378 (citations omitted).

We note at the outset that a

district court need not necessarily

conduct an evidentiary hearing on every

Rule 41(g) motion. The rule only directs

a district court to “receive evidence on

any factual issue necessary to decide the

motion.” Fed. R. Crim. P. 41(g). 

Likewise, Chambers does not mandate

the method by which a district court must

“determine, in fact, whether the

government retains possession of the

property,” so long as this determination

rests on a firmer basis than the

government’s unsubstantiated assertions

that it “no longer possesses the property

at issue.” Id. at 377-78. For example,

affidavits or documentary evidence, such

as chain of custody records, may be

sufficient to support a fact finder’s

determination. Chambers, however,

requires the district court to hold an

evidentiary hearing on “any disputed

issue of fact necessary to the resolution

of the motion,” which may include

determining “what happened” to the

seized property. Id. at 378.

The District Court expressly

acknowledged the Chambers inquiry, but

decided a hearing was “not required in

light of the futile outcome.” Albinson,

2001 U.S. Dist. LEXIS 374, at *16. The

District Court determined monetary

damages were the only possible remedy

based on the government’s

representations that it no longer retained

possession of the seized property. 

Recognizing our decision in United

States v. Bein, 214 F.3d 408, 415 (3d Cir.

2000),6 prohibits monetary damages on a

Rule 41(g) motion, the District Court

concluded there was “no other relief to

which petitioner is entitled under Rule

41[g].” Albinson, 2001 U.S. Dist.

LEXIS 374, at *17.

The District Court found the Bein

prohibition on monetary damages

 

6Two of our sister circuits have

suggested that a district court may award

monetary damages as an equitable

remedy on a Rule 41(g) motion. See,

e.g., Mora v. United States, 955 F.2d

156, 159-60 (2d Cir. 1992); United States

v. Martinson, 809 F.2d 1364, 1368 (9th

Cir. 1987). But we have concluded to

the contrary.
“undermined Chambers’ hearing

requirement,”7id. at *13, and created a

“Catch-22” in cases in which the

government asserts it has lost or

destroyed the seized property:

On the one hand,

Chambers demands that

this Court engage in an

inquiry as to what

happened to the lost or

missing property and

decide on an appropriate

remedy. On the other

hand, Bein forecloses the

only appropriate remedy in

a case where the

government has lost or

destroyed personal

property: money damages. 

In other words, Bein makes

the inquiry required by

Chambers an exercise in

futility, because even if the

Court were to conclude

after a hearing that a Rule

41[g] petitioner was

entitled to the return of

property, and that the

government improperly

disposed of the property,

the Court is powerless to

award the only available

remedy.

Id. at *14-15.

Although Bein forecloses certain

remedies for Rule 41(g) petitioners, it

does not necessarily create a

jurisprudential conundrum. An

evidentiary inquiry ensures that a district

court has sufficient information to decide

a Rule 41(g) motion. At the same time, it

provides an opportunity for a Rule 41(g)

petitioner to demand the government

return property to which he is rightfully

entitled. This inquiry assists an

aggrieved party in identifying and

recovering property seized in the course

of a criminal investigation. 

As the District Court correctly

recognized, an evidentiary hearing

potentially offers certain beneficial

effects. For example, a “hearing might

spark a government investigation that

results in the discovery or recovery of

property the government initially thought

to be lost or destroyed.” Id. at *15 n.8. 

Alternatively, an evidentiary hearing

“might result in the government being

able to prove that the property was

owned by the government,” and therefore

not subject to return. Id. In either case,

the prospect of a hearing provides an

incentive for the government to retain

accurate records of seized property,

consistent with its regulatory

obligations.8

 

7The District Court suggested that

“[a]n argument could be made that Bein

essentially attempts to overrule

Chambers.” Albinson, 2001 U.S. Dist.

LEXIS 374, at *16 n.9.

 

8Department of Justice regulations

require the FBI to maintain detailed

chain of custody records for all seized

property. See, e.g., 41 C.F.R. § 128-
Bein, by contrast, prescribes a

limitation on the remedies available to a

Rule 41(g) petitioner by precluding the

award of monetary damages. This

limitation is “not inconsistent” with the

requirement that a district court conduct

an evidentiary hearing before deciding a

Rule 41(g) motion. Bein, 214 F.3d at

416. Although Chambers directs a

district court to determine what remedies

are available to a Rule 41(g) petitioner,

Bein “did not consider whether such

available remedies would include an

award of monetary damages.” Id. 

Moreover, the question of

remedies should arise only after the

district court has investigated the status

of the seized property. While

representations by the government may

be credible and may suggest that “the

likelihood of actual recovery of the

property [is] very slim,” Albinson, 2001

U.S. Dist. LEXIS 374, at *15 n.8, a fact

finder may not deny a Rule 41(g) motion

based on a prospective assessment of the

remedies that might (or might not) be

available. Allowing the government to

defeat a Rule 41(g) motion simply by

asserting that it no longer retains

possession of the property would

frustrate the purpose of the Fed R. Civ.

P. 41(g) evidentiary inquiry set forth in

Chambers. The District Court was

justifiably concerned with the “harsh

consequences” of such a result. Id. at

*17.

C.

The government argues there were

no “disputed issues of fact” that would

require the District Court to conduct an

evidentiary hearing because Albinson did

not challenge the government’s

assertions that it no longer retained

possession of the seized property.

Albinson responds that a hearing is

required because the government’s

unsupported declaration did not resolve

all disputed issues of fact. Specifically,

Albinson argues the government’s

declaration did not identify the thirdparties who allegedly acquired the

property, the persons who destroyed or

distributed the property, or the property

that was allegedly returned. 

As mentioned, neither the Federal

Rule nor Chambers makes an evidentiary

hearing a prerequisite for deciding a Rule

41(g) motion. Chambers only requires

an evidentiary hearing on “any disputed

issue of fact necessary to the resolution

of the motion.” 192 F.3d at 378. But

Chambers also makes clear that “[t]he

government must do more than state,

without documentary support, that it no

longer possesses the property at issue.” 

50.101 (“Each bureau shall be

responsible for establishing and

maintaining inventory records of its

seized personal property to ensure that . .

. (d) A well documented chain of custody

is kept; and (e) All information in the

inventory records is accurate and

current.”). If the FBI maintains these

chain of custody records as required by

regulation, the burden of an evidentiary

inquiry is significantly reduced.
Id. at 377-78. That standard was not

satisfied here. Moreover, even if the

District Court properly determined the

government no longer possessed the

property, it did not address the remainder

of the Chambers inquiry regarding “what

happened to the property.” Id. at 378. A

district court may be able to make these

determinations based upon affidavits or

verified documentary evidence. But if

there are disputed issues of fact relating

to the status of the property or what

happened to it, the district court should

hold an evidentiary hearing. This

decision is left to the sound discretion of

the District Court.

III.

Finally, Albinson argues that if an

evidentiary inquiry reveals individual

government agents improperly disposed

of his property, he is entitled to amend

his Rule 41(g) motion to state alternative

claims consistent with this Court’s

decision in Bein. Specifically, Albinson

argues that if the evidentiary inquiry

reveals facts indicating that specific

government agents violated his

constitutional rights, he should be able to

amend his pleadings to state a Bivens

complaint. The government responds

that it was not error to deny Albinson’s

motion without a hearing because

Albinson neglected to assert alternative

claims in the District Court. While we

leave this matter also to the sound

discretion of the District Court, we note

that, depending on what is adduced

through the evidentiary inquiry,

amendment may be particularly

appropriate on the facts of this case.9

IV.

To summarize, the able District

Court did not conduct the full evidentiary

inquiry required by Chambers in

deciding Albinson’s Rule 41(g) motion. 

The District Court determined

Albinson’s property was unavailable

based upon the government’s

unsubstantiated assertions, and made no

determination regarding what happened

to the seized property. Whether these

determinations ultimately require an

 

9The allegations of a pro se litigant

are generally held to a “less stringent

standard” than formal pleadings prepared

by a lawyer. Mitchell v. Horn, 318 F.3d

523, 529 (3d Cir. 2003) (citing Haines v.

Kerner, 404 U.S. 519, 520 (1972)). Fed.

R. Crim. P. 41(g) motions are civil in

nature, and should be treated as a “civil

complaint.” United States v. McGlory,

202 F.3d 664, 670 (3d Cir. 2000)

(citation omitted). Therefore, a pro se

Rule 41(g) motion should be liberally

construed to allow the assertion of

alternative claims. “[A]ffirming the

denial [of a pro se Rule 41(e) motion]

without leave to amend would have the

same effect as a 12(b)(6) dismissal of a

pro se complaint,” which are generally

disfavored. Pena v. United States, 157

F.3d 984, 987 (5th Cir. 1998) (reversing

dismissal of pro se petitioner’s Rule

41(g) motion without leave to amend to

state a Bivens action). 
evidentiary hearing or merely the

submission of affidavits and

documentary evidence, we leave to the

sound discretion of the District Court.

For the foregoing reasons, we will

reverse and remand for proceedings

consistent with this opinion.