UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

v. 

EDUARDO SOTO-DIARTE, 

Defendant-Appellee. 

No. 09-3183 

(D.C. No. 2:06-20142-JWL-3) 

(D. Kan.) 

 

ORDER AND JUDGMENT*

Before, HARTZ, SEYMOUR and EBEL, Circuit Judges. 

 

In 2006, Appellant Eduardo Soto-Diarte pled guilty to a felony drug conviction 

and was sentenced to 135 months’ imprisonment. During the course of its investigation 

into Soto-Diarte’s activities, the government apparently seized numerous firearms, 

munitions, and other gun-related items from Soto-Diarte. Once Soto-Diarte’s criminal 

proceedings had terminated, he filed a pro se Motion for Return of Personal Property 

 *

 After examining appellant=s brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist the determination 

of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is 

therefore ordered submitted without oral argument. This order and judgment is not 

binding precedent, except under the doctrines of law of the case, res judicata, and 

collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. 

R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 23, 2010

Elisabeth A. Shumaker 

Clerk of Court

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under Federal Rule of Criminal Procedure 41(g)1

 that sought the return or replacement of 

the seized property. The district court denied this motion without conducting an 

evidentiary hearing. Soto-Diarte now appeals that decision with respect to the firearms. 

On appeal, he requests the government return the firearms (or replacements of the 

firearms) to him or a designated person, or, in the alternative, provide him with the fair 

market value of the seized firearms. Exercising jurisdiction under 28 U.S.C. § 1291, we 

vacate the district court’s order and remand for further proceedings consistent with this 

order. 

A district court should exercise its equitable power to grant relief only if the Rule 

41(g) movant shows “irreparable harm and an inadequate remedy at law.” United States 

v. Copeman, 458 F.3d 1070, 1071 (10th Cir. 2006) (quotations and citation omitted). 

Once criminal proceedings have terminated, however, “the person from whom the 

property was seized is presumed to have a right to its return, and the government must 

 

1

 Rule 41(g) provides, 

Motion to Return Property. 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 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 

Prior to amendments in 2002, the substance of Rule 41(g) was contained in former Rule 

41(e). The changes made in these amendments were stylistic only. See United States v. 

Copeman, 458 F.3d 1070, 1071 n.1 (10th Cir. 2006) (“What was formerly Rule 41(e) is 

now Rule 41(g), with only stylistic changes.”) 

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demonstrate that it has a legitimate reason to retain the property.” United States v. 

Rodriguez-Aguirre, 264 F.3d 1195, 1213 n.14 (10th Cir. 2001) (quotations and citation 

omitted).

We review questions of law relating to a Rule 41(g) motion de novo, see United 

States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005), but we review the district court’s 

weighing of equitable considerations and its decision to deny a Rule 41(g) motion for an 

abuse of discretion, see Copeman, 458 F.3d. at 1072. 

 We decline to reach the merits of Soto-Diarte’s appeal. Soto-Diarte attached to his 

brief documents indicating that the firearms at issue have been destroyed. He did not file 

these documents with the district court, though he appears to have been in possession of 

them. Likewise, the government made no effort to inform the district court that the 

firearms had apparently been destroyed, though the documents filed by Soto-Diarte were 

government-authored, and the government does not appear to disagree that the firearms 

were already destroyed before Soto-Diarte filed his Rule 41(g) motion. Given these 

circumstances, the district court made no finding as to the status of the firearms and 

operated on what now appears to be an inaccurate belief that the government retains 

possession of them. 

 Since Soto-Diarte and the government have only now raised an issue about the 

status of the seized firearms, we must remand the matter to the district court to make 

findings regarding whether the government possesses the property. See Clymore v. 

Untied States, 415 F.3d 1113, 1120 (10th Cir. 2005) (“Because the status of the property 

was raised for the first time at oral argument, it is necessary to remand the matter to the 

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district court for findings regarding the government’s possession of property.”). If the 

district court concludes the government retains possession of the firearms, it may proceed 

to rule on Soto-Diarte’s Rule 41(g) motion. Should the district could conclude, however, 

that the government no longer possesses the seized firearms, the district court has two 

options. First, Rule 41(g) is not a proper vehicle for obtaining monetary compensation 

for seized property no longer in the government’s possession. See Clymore, 415 F.3d at 

1120 (concluding that “sovereign immunity bars monetary relief in a Rule 41(e) 

proceeding when the government no longer possesses the property”). Thus, the district 

court may simply dismiss Soto-Diarte’s Rule 41(g) motion for a lack of subject matter 

jurisdiction. See Clymore, 415 F.3d at 1120 (“Should the district court determine on 

remand that the government is no longer in possession of the property, it should vacate its 

prior order granting the United States summary judgment and dismiss [the movant’s Rule 

41(g) motion] for lack of subject matter jurisdiction.”). Alternatively, the district court 

could grant the movant an opportunity to assert an alternative claim for monetary relief, 

an approach that is particularly appropriate in the case of pro se movants such as SotoDiarte. See United States v. Hall, 269 F.3d 940, 943 (8th Cir. 2001) (“[W]hen a district 

court conducting a Rule 41(e) proceeding learns that the government no longer possesses 

property that is the subject of the motion to return, the court should grant the movant 

(particularly a movant proceeding pro se . . . ) an opportunity to assert an alternative 

claim for money damages.”). 

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 For the foregoing reasons, we VACATE the district court’s order and REMAND 

for further proceedings not inconsistent with this order.2

 Entered for the Court 

 David M. Ebel 

 Circuit Judge 

 

2

 We have not considered, and decline to accept, Soto-Diarte’s reply brief because it was 

not timely filed. 

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