United States v. Uribe-Londono , 238 F. App'x 628 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2367
UNITED STATES,
Appellee,
v.
JESÚS ALBERTO URIBE-LONDONO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jesús A. Uribe-Londono on brief pro se.
Nelson Pérez-Sosa, Assistant United States Attorney, Germán A.
Rieckhoff, Assistant United States Attorney, an Rosa Emilia
Rodríguez-Vélez, United States Attorney, on brief for appellee.
July 18, 2007
Per Curiam. Jesus Uribe-Londono, currently serving a
120-month sentence for his conviction of sexual exploitation of
children in violation of 18 U.S.C. § 2251, appeals the district
court's denial of his post-conviction motion for the return of
seized property, most of which appears to be documentary in nature,
pursuant to Fed. R. Crim. P. 41(g). In a prior appeal, we affirmed
the district court's denial of a Rule 41(g) motion appellant filed
before the criminal proceedings had concluded, finding, inter alia,
that the district court reasonably could have concluded that the
property retained was related to the case, that the government had
adequately shown a need to retain the items as evidence until the
criminal proceedings had concluded, and that appellant's requests
were premature. See United States v. Uribe-Londono, No. 05-2121
(1st Cir. Apr. 12, 2006).
After the prior appeal was decided and the criminal
proceedings had concluded, appellant renewed his motion, arguing
that he was entitled to the return of all property still in the
government's possession because the government had not brought a
forfeiture proceeding. Appellant attached to the motion copies of
some of the FBI inventory forms the government had previously
submitted in response to an order directing it to identify property
still in its possession. The property listed in the forms ranged
from video camera equipment to items such as notebooks, calendars,
business cards, agendas, computer disks and a copy of a computer
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hard drive. Appellant argued that of the property seized, only the
video camera and one videocassette tape were used in the underlying
offense, and that much of the property in issue was work-related,
vital to his ability to obtain employment in the future, and bore
no connection to the offense of conviction. Appellant acknowledged
that computer hardware had been returned to his former employer,
but he alleged that the government retained copies of the
information contained therein and requested that the government
provide him with a copy of that material. Appellant further
asserted that, as part of discovery in the criminal proceedings,
the government had already provided him with copies of many of the
documentary materials he sought, but he maintained that the copies
were illegible.
The government opposed the motion, arguing that appellant
was not entitled to the return of the property because it
constituted derivative contraband either because it was used to
commit the offense of conviction or because it contained
pornographic images of minors or contact information for minors.
However, the government did not submit affidavits or any other
evidence to support its assertions concerning the contents or
nature of the property in issue. Further, although the government
asserted that it had returned computer equipment to appellant's
former employer and suggested that appellant did not have standing
to request that material, it did not specifically address
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appellant's request for a copy of the information contained in the
hard drive which, according to the inventory forms, the government
still had in its possession. The district court denied appellant's
Rule 41(g) request the day after the government's opposition was
filed, stating that it had "reviewed the FBI's inventory list and
notes that all property listed therein which was not returned to
defendant is intrinsically intertwined to the instruments used to
facilitate his delictive activity[,]" and that "non-case related
items were already returned to defendant's representative." This
appeal ensued.
We review the district court's interpretation of Rule
41(g) de novo and its factual determinations for clear error. See
United States v. Pierre, 484 F.3d 75, 87, (1st Cir. 2007). Rule
41(g) provides that "[a] person aggrieved . . . by the deprivation
of property may move [the district court] for the property's
return." "Once seized property is no longer needed as evidence, a
criminal defendant is presumed to have the right to its return.
However, a Rule 41(g) motion is properly denied if the defendant is
not entitled to lawful possession of the seized property, the
property is contraband or subject to forfeiture, or the
government's need for the property as evidence continues." Pierre,
484 F.3d at 87 (internal citations, quotations and alterations
omitted); see also United States v. Chambers, 192 F.3d 374, 377 (3d
Cir. 1999) ("The burden shifts to the government when the criminal
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proceedings have terminated. At that point, the person from whom
the property was seized is presumed to have a right to its return,
and the government must demonstrate that it has a legitimate reason
to retain the property.").
To the extent appellant contends that the government was
required to establish that the property in question constituted
derivative contraband or was otherwise subject to forfeiture by
proof beyond a reasonable doubt, his argument does not find support
in the case law. See United States v. Maez, 915 F.2d 1466, 1468
(10th Cir. 1990) (because Rule 41(g) proceedings are civil in
nature, "[t]he judge is not bound by the criminal proceeding's
standard of proof" and the civil preponderance-of-the-evidence
standard applies). However, to the extent appellant contends that
the district court misallocated the burden of proof and improperly
decided disputed facts without sufficient evidence, his argument
has merit.
This court has not set forth in detail the procedure the
district court is to follow when presented with a post-conviction
Rule 41(g) motion, but we have stated that such motions are to be
treated as civil complaints for equitable relief, see United States
v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995); accord Rufu v. United
States, 20 F.3d 63, 65 (2d Cir. 1994), and Rule 41(g) itself
provides that "[t]he court shall receive evidence on any issue of
fact necessary to the decision of the motion." As noted above,
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appellant conceded that one video and the camera used to produce
that video "contained evidence that was the subject of [his]
conviction," but asserted that the remainder of the documents still
in the government's possession were work-related and contained no
information relating to minors or child pornography. The
government disputed that contention and argued that the documents
were found to contain information relating to minors, and as such,
constituted derivative contraband; however, the government did not
submit affidavits or other evidence to substantiate its assertion,
and the government's inventory forms did not describe the specific
nature or contents of the materials seized. Therefore, it was not
"apparent," as the government contends, that the property appellant
sought constituted derivative contraband. Cf. United States v.
Felici, 208 F.3d 667, 670-71 (8th Cir. 2000) (district court
properly denied Rule 41(e) request for the return of firearms
without an evidentiary hearing because defendant's status as a
convicted felon made it illegal for him to possess firearms.
However, district court erred in denying defendant's request for
the return of items the government asserted were "drug-related"
without an evidentiary hearing where it was not immediately
apparent whether items were used or intended to be used in an
unlawful manner).
The district court also failed to address appellant's
request for the copy of information contained in the computer hard
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drive. On appeal, the government takes the position that appellant
had no standing to request that material because the hard drive
belonged to appellant's former employer. However, the government
did not develop that argument below, and the district court did not
make any findings of fact as to whether the government retained a
copy of the information contained in the hard drive, whether
appellant had standing to request the copy, and if so, whether the
document was properly withheld. Further, the district court failed
to afford appellant an opportunity to respond to the government's
opposition, having denied appellant's motion the day after the
government's opposition was filed.
In sum, we cannot sustain the district court's finding
that the property in dispute was so "inextricably intertwined" with
the underlying offense as to constitute derivative contraband
because it appears to be based solely on the government's unsworn
and unsubstantiated assertions concerning the nature and contents
of the seized property, which is not self-evident and was disputed
by appellant. See Fed. R. Crim. P. 41(g); Rufu, 20 F.3d at 65(reversing denial of Rule 41(g) motion where numerous factual
disputes existed concerning, inter alia, what property was in the
government's possession and what property had been returned, and
district court's decision was based solely upon an unsworn letter
from the government, without affidavits or DEA records); Mora v.
United States, 955 F.2d 156, 158 (2nd Cir. 1992) (holding that
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district court erred in relying on government's unsubstantiated
assertions concerning disposition of property sought in Rule 41(e)
motion). Accordingly, we reverse the district court's denial of
appellant's Rule 41(g) motion and remand the matter for further
proceedings.
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