UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 96-40215

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

REGINALD J. DEAN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Texas

______________________________________________________ November 5, 1996

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges

PER CURIAM:

Reginald Dean, filing pro s e , appeals the district court’s

denial of his motion for the return of money seized in connection

with his arrest for bank robbery. We affirm.

I.

On September 20, 1985, Dean was arrested in connection with

the robbery of the First National Bank of Bullard, Texas, from

which $81,300 had been taken the day before. On the same day as

the arrest, FBI agents executed a search warrant at Dean's house.

The agents found $41,000 labeled with straps bearing the bank's

name in the trunk of Dean's car. The agents also found $1,686 in

assorted bills in Dean's pants' pocket and $4,950 in $50 bills in

a brown paper bag under his mattress. According to the government,

the bank requested that the FBI remit recovered monies to its

insurance carrier; ultimately, the FBI released $75,446, consisting

of money recovered from Dean and an accomplice, to the insurer.2

Subsequent investigation linked Dean to an earlier robbery of

Tyler National Bank. In 1986, Dean was convicted of both robberies

and sentenced to serve thirty years. In 1987, Dean sought, and was

granted, the return of jewelry seized at the time of his arrest;

his motion did not include a request for the return of cash.

Some years l ater, in 1995, Dean moved for the return of the

$6,636 taken by FBI agents from his pants' pocket and under his

mattress. Dean alleged that the government took the funds without

showing that they were proceeds from illegal activity. The

government, in respon se, contended that the funds were obtained

from either the Bullard or Tyler bank robbery, and, therefore, were

unlawfully possessed by Dean.

The district court denied Dean's motion a nd held that he

failed to show any legal entitlement to the money. Dean timely

appealed the district court's decision.

II.

Federal Rule of Criminal Procedure 41(e) provides that:

A person aggrieved by an unlawful search and seizure or by the

deprivation of property may move the district court

. . . for

the return of the property on the ground that such person is

entitled to lawful possession of the property. The court

shall receive evidence on any issue of fact necessary to the

decision of the motion.

Fed. R. Crim. P. 41(e) (emphasis added). A criminal defendant is

presumed to have the right to the return of his property once it is

no longer needed as evidence. U nited States v. Mills , 991 F.2d

609, 612 (9th Cir. 199 3); s ee also United States v. Palmer

, 565

F.2d 1063 (9th Cir. 1977) (ordering return of money seized at time

of defendant's arrest for bank robbery where there was no evidence3

that m oney was property of bank and bank made no claim of

ownership). However, the government may rebut that presumption by

showing that the defendant did not possess the property lawfully.

Mills

, 991 F.2d at 612 (noting that claim of possession adverse to

defendant, such as restitution order, rebutted defendant's

presumption of entitlement to money seized at time of arrest);

United States v. Burzynski Cancer Research Institute

, 8 19 F.2d

1301, 1311 (5th Cir. 1987) (holding that movants failed to show

right to lawful possession of patients' records), cert. denied

, 484

U.S. 1065, 108 S. Ct. 1026, 98 L. Ed. 2d 990 (1988); c f. United

States v. Duncan

, 918 F.2d 647, 654 (6th Cir. 1990)(concluding that

government's interest in ensurin g payment of monetary penalties

imposed as part of sentence outweig hed defendant's interest in

return of money), cert. denied

, 500 U.S. 933, 111 S. Ct. 2055, 114

L. Ed. 2d 461 (1991).

We review a district court's interpretation of Rule 41(e) de

novo. S ee In re Grand Jury Subpoenas Dated Dec. 10, 1987

, 926 F.2d

847, 855 (9th Cir. 1991). A district court's factual determination

of lawful possession, or ownership, will be upheld unless clearly

erroneous. See id

. ; United States v. Maez

, 915 F.2d 1466, 1468

(10th Cir. 1990), cert. denied

, 498 U.S. 1104, 111 S. Ct. 1005, 112

L. Ed. 2d 1087 (1991).

T he Tenth Circuit applied these principles in M aez

. There,

Maez argued that he was entitled to $5,844 seized in a search

incident to his arrest for bank robbery. Maez , 915 F.2d at 1468.

The court, in affirming the district court's denial of the Rule4

41(e) motion, acknowledged that Maez's pre-seizure posses sion of

the money established a prima facie case that he was entitled to

it. I d

. However, it held that the government had sufficiently

established, through circumstantial evidence, that the money

rightfully belonged to the bank. Id . The court cited Maez's own

guilty plea, eyewitness testimony identifying him as one of the

bank robbers, and the lack of a credible explanation for the

presence of a large amount of cash--nearly half of the amount

stolen--in his closet.

Similarly, in the case at hand, t he government has

sufficiently rebutted Dean's presumption of ent i tlement. FBI

agents found proceeds from the Bullard robbery in Dean's car, his

accomplice testified as to Dean's involvement in the crime, and a

jury trial established Dean's guilt. In addition, the record

indicates that the government offered the $6,636, along with the

bundled $41,000, into evidence at a suppression hearing and at

trial. Dean offered nothing to distinguish the $6,636 from the

$41,000 bearing bank labels. The judge was entitled to view the

jury's verdict of guilty as an implicit acceptance of the

government's theory that all of the money constituted proceeds from

the bank robbery.

The judge was also entitled to consider the fact that a year

after trial, Dean moved for the return of jewelry seized during the

1985 search, but did not include a request for the return of money.

On the basis of the facts before it, the district court found that

Dean did not show he was legally entitled to the property at issue.1 Because we conclude that Dean was not legally entitled to the funds,

we need not consider other issues in the case, such as whether the suit

could be barred by the doctrine of laches or other equitable defenses or

whether the government could be subjected to an action for the return of

property under Rule 41(e) when it no longer possesses that property.

5 This finding is not clearly erroneous. 1

Dean further contends that the district court sho uld have

conducted an evidentiary hearing before denying his motion. This

contention is meritless. This court reviews the district court's

denial of an evidentiary hearing under Rule 41(e) for abuse of

discretion. D ickens v. Lewis

, 750 F.2d 1251, 1255 (5th Cir. 1984).

Evidentiary hearings are not granted as a matter of course; such a

hearing is required only if any disputed material facts are

"necessary to the decision of the motion." U nited States v.

Harrelson , 705 F.2d 733, 737 (5th Cir. 1983) (citations omitted);

Fed. R. Crim. P. 41(e). Factual allegations in the defendant's

motion must be "sufficiently definite, specific, detailed, and

nonconjectural, to enable the court to conclude that a substantial

claim is presented." H arrelson

, 705 F.2d at 737 (citations

omitted). General or conclusionary assertions will not suffice.

Id

.

Dean, in support of his Rule 41(e) motion, argues to us, as he

did to the district court, that the money at issue "was seized by

federal authorities without showi ng it was proceeds from any

illegal activity." Dean alleged no facts to support that claim;

nor did he seek to rebut the government's circumstantial evidence.

He provided no explanation as to how he legitimately came to

possess the $6,636 found under his mattress and in his pockets.6

Becaus e Dean's motion does not present a disputed factual

issue, we cannot say the judge's denial of Dean's motion without a

hearing was an abuse of discretion.

III.

For these reasons, the district court's denial of Dean's Rule

41(e) motion is AFFIRMED.

AFFIRMED.