UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 06-cr-208-JD

Omar Hervis

O R D E R

Omar Hervis filed a motion (document no. 132), pursuant to

Federal Rule of Criminal Procedure 41(g), for the return of

property taken from him at the time of his arrest. The

government did not file a response and was ordered to do so. The

response (document no. 137) filed by the government did not

comply with the evidentiary requirements of Rule 41(g) and United

States v. Cardona-Sandoval, 518 F.3d 13, 15 (1st Cir. 2008). 

Therefore, the court ordered the government to file a

supplemental response to comply with those requirements by

February 3, 2010.

In the meantime, Hervis’s motion (document no. 132) was

inadvertently denied, but that order was subsequently vacated

(document no. 138). Hervis filed a motion to reconsider

(document no. 141) the order that had been vacated. On February

3, 2010, the government filed an objection (document no. 142) to

Hervis’s motion for reconsideration.

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The document docketed as an objection (document no. 142),

however, is titled: “United States’ Amended Response to

Defendant’s Motion for the Return of Property.” Therefore, it

appears that the government may have intended document no. 142 to

serve as its supplemental response.

In document no. 142, the government relies on the

“affidavit” of DEA Special Agent Asa Moore to comply with the

evidentiary requirements of Rule 41(g) and First Circuit

precedent. Although the “affidavit” submitted by the government

states that Morse was duly sworn, his statement was not sworn to

or affirmed before a notary public or another officer authorized

to administer oaths. See, e.g., Melendez-Diaz v. Massachusetts,

129 S. Ct. 2527, 2532 (U.S. 2009); Betouche v. Ashcroft, 357 F.3d

147,150 (1st Cir. 2004). Because the statement was not signed

under penalty of perjury, it does not comply with the

requirements of 28 U.S.C. § 1746. Therefore, the statement

submitted by the government does not meet the requirements of an

affidavit, and the response is not supported by other competent

evidence.

Because the order denying Hervis’s motion for the return of

property was vacated, Hervis’s motion for reconsideration

(document no. 141) is moot. To the extent the government

intended document no. 142 as an objection to the motion for

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reconsideration, it is also moot. To the extent the government

intended document no. 142 to serve as its supplemental response,

the response is insufficient because it is not supported by

competent evidence, such as an affidavit, to support the factual

issues that must be resolved to address Hervis’s motion. 

Therefore, the government shall file a second supplemental

response to Hervis’s motion for the return of property (document

no. 132), supported by competent evidence. 

Conclusion

For the foregoing reasons, the defendant’s motion for

reconsideration (document no. 141) is denied as moot. The

government shall file a second supplemental response to the

defendant’s motion for the return of property (document no. 132)

on or before February 19, 2010.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

February 10, 2010

cc: James D. Gleason, Esquire

Kenneth P. Glidden, Esquire

Gary J. Hill, Esquire

Ash S. Joshi, Esquire

Terry L. Ollila, Esquire

John T. Pendleton, Esquire

Sven D. Wiberg, Esquire

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