UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

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

Opinion No. 2010 DNH 034

Omar Hervis

O R D E R

Omar Hervis was arrested in October of 2006 and pled guilty

to conspiring to distribute and to possess with intent to

distribute in excess of fifty grams of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and 846. Following a hearing

on April 22, 2008, he was sentenced to 168 months of

imprisonment. Hervis has filed a motion for the return of his

property that was seized at the time of his arrest. The

government has filed its response to Hervis’s motion.

Federal Rule of Criminal Procedure 41(g) provides for the

return of property taken from a criminal defendant at the time of

his arrest, after the property is no longer needed as evidence. 

Property will not be returned if the defendant is not entitled to

its possession or if the property is contraband or subject to

forfeiture. United States v. Cardona-Sandoval, 518 F.3d 13, 15

(1st Cir. 2008). When a motion under Rule 41(g) is filed after

the criminal proceedings have concluded, the motion is treated as

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a civil equitable action. Diaz v. United States, 517 F.3d 608,

610 (2d Cir. 2008). 

If the defendant is legally entitled to the claimed

property, the burden shifts to the government to establish a

legitimate reason to retain the property. Jackson v. United

States, 526 F.3d 394, 397 (8th Cir. 2008); Bailey v. United

States, 508 F.3d 738, 739 (5th Cir. 2007). “Once seized property

is no longer needed as evidence, a criminal defendant is presumed

to have the right to its return.” United States v. Pierre, 484

F.3d 75, 87 (1st Cir. 2007). “The court must receive evidence on

any factual issue necessary to decide the motion.” Fed. R. Crim.

P. 41(g). 

In his motion, Hervis asks the government to return property

that was taken, after his arrest, from his rental car and from

the motel room where he had been staying. He lists a keyholder

with ten keys and two remote controls, two cell phones, a radar

and laser detector, a can of beer, two pairs of sneakers, eleven

disposable cameras, and approximately 300 compact discs and DVDs

that were taken from his rental car. He also seeks the return of

internet wireless cards, an internet wireless detector, a

computer keyboard and mouse, titles to two boats, a jet ski

title, clothing, towels, and $20,380 in cash, which he contends

were taken from the room he rented at a motel in Salisbury,

Massachusetts. 

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The government’s response to Hervis’s motion relies on the

affidavit of DEA Special Agent Asa Morse and documents related to

the criminal investigation and the government’s actions to return

the property.1 The items taken from Hervis at the time of his

arrest, a hat, watch, necklace, $120, and a black wallet with its

contents, were turned over to Hervis’s counsel, Kenneth Glidden. 

The items taken from Hervis’s rental car and the hotel room where

Hervis was staying, other than cash and two cell phones, which

were destroyed, were returned to Leocadia Arroyo.2

The DEA agents who searched the hotel room also found

$20,380 in cash in a backpack. They gave $2,580 to Hervis’s

traveling companion, Sofia Rodriguez, who had two children with

her, to pay for their trip home. The remainder of the money,

$17,800, was seized. On November 29, 2006, notice of the seizure

of the money was sent to Hervis’s counsel, Attorney Glidden; to

an address in Atlanta, Georgia, (which appears to be Arroyo’s

address); and to the Strafford County House of Corrections, where

1The government’s initial response lacked evidentiary

support. The government’s supplemental response relied on an

unsworn statement. The second supplemental response relies on

Agent Moore’s properly sworn affidavit, providing evidentiary

support for the government’s position.

2Although the government identifies Leocadia Arroyo as

Hervis’s mother, Arroyo identified herself, in an affidavit

submitted in support of Hervis’s objection to summary judgment in

his habeas corpus proceeding, as Hervis’s “live-in girlfriend.”

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Hervis was incarcerated. Confirmations of the notices were

received the next week. Arroyo filed a claim for the cash, and

$8,475.47 was sent to her. The remainder of the money,

$9,324.53, was forfeited by court order to the United States.

 The receipt for items is signed by Arroyo. Although the

receipt lists a “Boost Mobile Phone” and a “T-Mobile Phone” as

having been returned to Arroyo, Special Agent Moore states in his

email that he missed the mobile phones listed by Hervis, a black

Motorola 530 Nextel phone and a silver Motorola 560 “Boost

Mobile” phone, when he put Hervis’s property into the box and

that when he found the phones, he destroyed them. The receipt

also indicates that a boat registration was listed but not

returned. Agent Morse states in his affidavit that the items

listed by Hervis in his motion, which were not returned to Arroyo

or destroyed, were not seized.

In summary, the government does not have any of the property

Hervis seeks in his motion. The government cannot be ordered to

return property that it does not have.

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Conclusion

For the foregoing reasons, the defendant’s motion for return

of property (doc. no. 132) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

February 23, 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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