                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 21, 2007
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                         No. 07-2076
 v.                                               (D.C. No. CR-00-1424 BB)
                                                          (D .N.M .)
 JOSE AGU IRRE,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **


      Defendant-Appellant Jose Aguirre appeals the district court’s denial of his

motions for the equitable return of seized personal property under Fed. R. Crim.

P. 41(g). M r. Aguirre was indicted along with thirteen co-defendants on various

drug charges on October 17, 2000. He contends that the Drug Enforcement




      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Agency (DEA) seized certain of his personal property 1 (valued at $6,500) when

agents arrested him in Albuquerque in November 2003. M r. Aguirre pleaded

guilty on M arch 30, 2004, and was sentenced to 87 months’ imprisonment on June

2, 2004. He filed a series of duplicate Fed. R. Crim. P. 41(g) motions, the first on

November 27, 2006, nearly three years after his arrest.

      On February 23, 2007, the government prosecutor who handled the case

stated in the government’s response that she:

      has made a diligent effort to determine what, if any, property was
      seized from the defendant at the time of his arrest. Unfortunately,
      this is a huge case with thousands of pages of reports and discovery.
      Additionally, all of the case agents involved in this case have left Las
      Cruces. Undersigned counsel has contacted them, but they have no
      memory of exactly what happened at the time of the defendant’s
      arrest or what might have been taken. Both the DEA and FBI have
      searched their files and have been unable to discover any items
      which they seized from the defendant. . . .

She also indicated that the government was not in possession of any such

property, which would have been destroyed at the end of the case or returned to

M r. Aguirre.

      On M arch 9, 2007, the district court issued a one-page order denying the

motion based on the representations of the prosecutor that the government no

longer possessed the property. Thereafter, on M arch 21, 2007, M r. Aguirre’s

reply to the government’s response was filed, indicating that it had been deposited



      1
       M r. Aguirre contends that DEA agents seized, inter alia, an automobile,
power and hand tools, a cellular telephone, and cash.

                                        -2-
in the prison mailbox on M arch 12. On appeal, M r. Aguirre argues that the

district court made an improper factual determination that the government no

longer possessed the property based only on the government’s unverified

response, w hich lacked affidavits and was not supported by sworn testimony. He

argues that, even if the government has disposed of his property, the district court

may still aw ard “equitable damages.” Finally, he requests that if this court

concludes his Rule 41(g) motion is improper, we construe his motion as a claim

for damages under the Federal Tort Claims Act, a remedy suggested to him by the

government prosecutor.

      W hile we do not question that the prosecutor accurately represented her

conversations with the case agents, the DEA, and the FBI to the district court, she

has no first-hand knowledge concerning what items were or were not taken from

M r. Aguirre, nor does she have first-hand knowledge of whether the government

still possesses those items. Fed. R. Crim. P. 41(g) states the district court “must

receive evidence on any factual issue necessary to decide the motion.” M r.

Aguirre’s motion raised a colorable claim that the DEA seized certain items of his

property, and he described the property in sufficient detail to merit factual

inquiry. Unfortunately, the district court relied only on the government’s

unverified response in reaching its factual determination that the government did

not possess any of M r. Aguirre’s property. Factual allegations in unverified

pleadings are not “evidence” to be considered in a factual inquiry. See In re

                                         -3-
Grand Jury Subpoena, 419 F.3d 329, 336 (5th Cir. 2005); Jupiter v. Ashcroft, 396

F.3d 487, 491 (1st Cir. 2005); M edina v. Pacheco, 161 F.3d 18 (Table), 1998 W L

647784, at *3 n.5 (10th Cir. 1998). Consequently, we must vacate the district

court’s order denying the motions and remand the case for a factual determination

based on evidence. 2

      SO O RD ER ED .

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




      2
         On remand, the district court should consider M r. Aguirre’s reply.
Incidentally, the reply appears timely filed under the prison mailbox rule in
conjunction with the federal and local rules. See Fernandez v. Artuz, 402 F.3d
111, 113-14 (2d Cir. 2005) (collecting cases that have extended the prison
mailbox rule to a host of quasi-civil proceedings); Crook v. Comm’r of Internal
Revenue Serv., 173 F. App’x. 653, 655-56 (10th Cir. 2006) (same); see also
D.N.M . LR-Civ 7.6(a) (14 day reply time); Fed. R. Civ. P. 6(e) (addition of 3
days for mailing).

                                       -4-
