United States v. Gregory Sperow ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30064
Plaintiff-Appellee, D.C. No. 1:06-cr-00126-BLW
v.
MEMORANDUM*
GREGORY FRANK SPEROW,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Gregory Frank Sperow appeals pro se from the district court’s order granting
in part and denying in part his motion for return of property under Federal Rule of
Criminal Procedure 41(g). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Sperow first contends that the district court erred when it relied on Special
Agent Gleason’s declaration rather than conducting an evidentiary hearing to
determine the status of his property. Gleason’s sworn declaration established that
he had personally reviewed all of the seized evidence then in the custody of the
relevant Idaho agencies, conducted additional investigations relating to the
outstanding property, and provided a detailed account of the status of each item of
property. Contrary to his contention, Sperow did not adduce any evidence that
conflicted with Gleason’s declaration. Under these circumstances, the district
court properly relied on Gleason’s declaration and did not abuse its discretion
when it declined Sperow’s request for an evidentiary hearing. See United States v.
Hagege, 437 F.3d 943, 953 (9th Cir. 2006). Sperow’s argument that, in the
absence of a hearing, the court was required to construe the facts in a light most
favorable to him, is unsupported. In any event, there were no genuine factual
issues with respect to the location of the property.
Sperow next contends that the district court erred by failing to require the
government to produce a property inventory in accordance with 41 C.F.R. § 128-
50.101. We disagree. Nothing in the regulation, which is directed to federal
bureaus, appears to give property owners like Sperow a claim for relief. Moreover,
Sperow cannot show any need for a property inventory. Sperow’s declaration
identified the items he sought, Gleason conducted a thorough search for each item,
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and the government ultimately returned to Sperow everything it had in its
possession with the exception of evidence that appeared to be contraband or to
have been seized from someone other than Sperow. Sperow does not explain what
else he could have obtained with a complete inventory.
Lastly, Sperow contends that the district court erred when it refused to
consider his challenge to the legality of the search of his truck. The district court
did not err because the legality of the underlying search and seizure of property is
irrelevant for purposes of Rule 41(g) once criminal proceedings are complete. See
United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). In this case,
irrespective of whether the search was legal, the government could not return the
evidence allegedly seized from the truck because it did not possess that property.
AFFIRMED.
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