                                                                              [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                                      FILED
                                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                            U.S.
                                    ________________________ ELEVENTH CIRCUIT
                                                                             NOVEMBER 10, 2011
                                            No. 10-15917                        JOHN LEY
                                        Non-Argument Calendar                     CLERK
                                      ________________________

                           D.C. Docket No. 6:09-cr-00047-MSS-GJK-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                          Plaintiff-Appellee,


                                                   versus

PATRICK CONNOLLY,

                                             llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (November 10, 2011)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

         Patrick Connolly appeals pro se the district court’s order denying his motion
for the return of property, which we construe liberally to have been filed pursuant

to Fed.R.Crim.P. 41(g). In 2010, Connolly pled guilty to one count of enticing a

minor to engage in sexually explicit activity for the purpose of producing child

pornography, in violation of 18 U.S.C. § 2251(a) and (e). In his written plea

agreement, Connolly and the government agreed that he would forfeit: “the items

seized from the defendant as reflected in the search warrants executed in this

investigation that contain child pornography”; “any computer equipment as

defined in 18 U.S.C. § 2256, seized from the defendant that contain[s] child

pornography”; and “the computer equipment that was the subject of the search

warrants executed in this investigation that contain[s] child pornography.” After

the court entered a final judgment, Connolly moved pro se for the return of “any

and all personal property seized in this criminal action, as agreed upon in [his]

plea agreement” (emphasis added). The district court denied his motion upon

finding that he agreed to forfeit all items associated with his offense. The court

did not specify the provision under which it construed Connolly’s motion to be

filed, or whether the denial was with or without prejudice.

      On appeal, both Connolly and the government concur that the district court

abused its discretion in denying his motion for the return of property because the

court should have read his motion to refer only to the property to which he was

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otherwise entitled, that is, property seized from him that was not associated with

his offense. The government adds that, as Connolly filed his motion pro se, the

district court should have given him an opportunity to clarify the property he

sought before denying him relief.

      We review the denial of a motion to return property in a criminal case for

abuse of discretion. United States v. De La Mata, 535 F.3d 1267, 1279 (11th Cir.

2008). Pleadings filed by pro se litigants are entitled to a liberal construction.

United States v. Webb, 565 F.3d 789, 792 (11th Cir. 2009). The government’s

“concession of a point on appeal is by no means dispositive of a legal issue.”

Gilbert v. United States, 640 F.3d 1293, 1306 n.14 (11th Cir. 2011) (en banc).

      Under Federal Rule of Criminal Procedure 41(g), “[a] person aggrieved by

an unlawful search and seizure of property or by the deprivation of property may

move for the property’s return.” Rule 41 also requires that law enforcement

prepare an inventory of all seized property and deliver a copy of the inventory to

the district court, which, in turn, must deliver a copy to the defendant upon his

request. Fed.R.Crim.P. 41(f)(1).

      When a motion for the return of property under Rule 41(g) is filed after a

conviction, we treat it as a civil action in equity. United States v. Howell,

425 F.3d 971, 974 (11th Cir 2005); United States v. Potes Ramirez, 260 F.3d

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1310, 1314 (11th Cir. 2001) (holding that a Rule 41 motion for return of property

is a civil action subject to the 60-day appeal period in Fed.R.App.P. 4(a)(1)(B)). A

district court should grant relief only if the movant meets two requirements. First,

the movant must demonstrate that he has a possessory interest in the seized

property. Howell, 425 F.3d at 974 (holding that the defendant had no possessory

interest in cash he received during a controlled purchase and firearms that he

would not legally be entitled to possess as a convicted felon). Second, the movant

must show that he has “clean hands” with respect to that property. Id.; see also

United States v. Machado, 465 F.3d 1301, 1307 (11th Cir. 2006) (holding that the

district court acted within its discretion in denying the defendant’s Rule 41(g)

motion because to do otherwise would have returned the fruits of his crimes),

abrogated on other grounds, Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168

L.Ed.2d 96 (2007). Where a defendant is convicted of an offense involving the

sexual exploitation of a minor, as was Connolly, he must forfeit his interest in any:

(1) images containing sexually explicit depictions of minors; (2) property

constituting or traceable to profits from the offense; and (3) property used or

intended to be used to commit the offense. 18 U.S.C. § 2253(a).

      The required balancing of the equities is a task for the district court to

perform in the first instance. De La Mata, 535 F.3d at 1279 (vacating the district

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court’s reinstatement of forfeiture orders because it did not expressly consider the

defendants’ Rule 41(g) motions). Where a more carefully drafted pleading might

state a claim for relief, the district court should provide the plaintiff at least one

opportunity to amend before dismissing with prejudice. See Bank v. Pitt, 928 F.2d

1108, 1112 (11th Cir. 1991), overturned in part by Wagner v. Daewoo Heavy

Indus. Am. Corp., 314 F.3d 541, 542 & n.1 (11th Cir. 2002) (en banc).

      While district court correctly observed that Connolly agreed to forfeit

offense-related property in the plea agreement, it failed to recognize that the plea

agreement did not provide for the forfeiture of property unrelated to the offense, or

read Connolly’s pro se motion to seek only the property to which he was entitled

under the plea agreement and the controlling statutes. Accordingly, we agree with

the parties that the district court abused its discretion in denying Connolly’s

motion, and remand with instructions to: (1) determine the appropriate forum in

which to adjudicate Connolly’s motion to return property; (2) devise measures, to

the extent permitted under Rule 41 and if it determines that it retains jurisdiction,

to ensure that Connolly is made aware of all property presently in the

government’s possession; (3) permit Connolly to re-file a Rule 41(g) motion that

clarifies the property in which he believes he continues to retain an interest; and

(4) order the government to file a response that informs the court of its own

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interest or the absence thereof, in the property specified in Connolly’s renewed

motion, as well as any subsequent actions that may impact the disposition of his

request.

      VACATED AND REMANDED.




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