                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-1999

U.S. v. Chambers
Precedential or Non-Precedential:

Docket 97-5501




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Recommended Citation
"U.S. v. Chambers" (1999). 1999 Decisions. Paper 255.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/255


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                                UNITED STATES of America
                                           v.
                             Ceverilo CHAMBERS, Appellant

                                       No. 97-5501.

                               United States Court of Appeals,
                                      Third Circuit.

                     Submitted Under Third Circuit LAR 34.1(a) Nov. 20,
1998

                                      Filed Sept. 13, 1999

 On Appeal From the United States District Court For the District of New
Jersey. (D.C. Criminal No.94-cr-00585-3) District Judge: Honorable
Nicholas H. Politan.

Ceverilo Chambers Pro se Appellant.

George S. Leone, Esq., Perry Carbone, Esq., Office of United States
Attorney, Newark, NJ, Attorneys for Appellee.

Before: MANSMANN, RENDELL and STAPLETON, Circuit Judges

                               OPINION OF THE COURT

RENDELL, Circuit Judge.

We are asked to determine whether appellant's motion for return of
property filed pursuant to Rule 41(e), Fed.R.Crim.P., is moot because the
government no longer possesses the property that was seized at the time of
appellant's arrest. We hold that a motion for return of property does not
become moot merely because the government no longer retains the seized
property. We further conclude that the District Court should have taken
evidence to determine whether the government properly disposed of
appellant's property. Accordingly, we will
vacate the order of the District Court denying appellant's motion and will
remand for further proceedings consistent with this opinion.

                                             I.

Ceverilo Chambers pled guilty to drug related offenses on February 28,
1995, and was sentenced to a term of 62 months imprisonment. His
conviction was affirmed by this Court on January 31, 1997. On June 10,
1997, after criminal proceedings had ended, Chambers filed a motion for
the return of property seized by the government when he was arrested.
Specifically, he requested the return of a 1987 Road Ranger and a 1993
Toyota Corolla, as well as company records, keys, and a wallet.

In its response to the motion, the government asserted that the motion was
moot because it no longer retained the property sought by Chambers. On
July 23, 1997, the District Court denied Chambers' motion because it
concluded that there was no property to be returned. Relying upon the
government's assertions, the District Court stated that the 1987 Road
Ranger had been forfeited, that the 1993 Toyota Corolla had been released
to a repossession company, that the papers had been destroyed, and that
the keys and the wallet had been returned to
Chambers' girlfriend, at his request.

Proceeding pro se and in forma pauperis, Chambers filed a timely notice of
appeal from the denial of his motion for return of property. The appeal
initially was referred to a panel of this Court for a determination
whether the appeal should be dismissed pursuant to 28 U.S.C. § 1915(e)(2).
The panel declined to dismiss the appeal as frivolous. Instead, the Court
directed the government to submit documentation to support any statements
regarding the
disposition of Chambers' property.

On appeal, the government argues that the District Court properly
dismissed Chambers' motion for return of property because there was no
longer any property to return. The government has provided documents
indicating that the 1987 Road Ranger was administratively forfeited on
April 14, 1995,1 that the 1993 Toyota was released to a repossession
company, apparently on December 19, 1994,2 and that the papers were
destroyed on May 15, 1996. Chambers requests that we direct the District
Court to conduct fact-finding regarding the disposition of his
property.
_____________________________________________________________
1. The government also provided a document regarding a 1984 Trailer that
was forfeited on January 27, 1995. Chambers does not raise any issues with
respect to this vehicle, and we, therefore, will not consider it.

2. Although the government states that the Toyota Corolla was released to
the repossession company on December 19, 1994, we note that the document
submitted in support of that statement contains two dates. The document
contains the following printed and typewritten statement: "Executed in
triplicate this 19th day of Dec. 1995." However, the dates handwritten
next to each of the
signatures of the parties who executed the Hold Harmless Agreement is "12-
19-94." If material, the District Court may resolve this factual question
upon remand.
_____________________________________________________________

                                           II.

Before we turn to the merits of the appeal, we must address the threshold
question of jurisdiction. See Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998). It is well
settled that the
government is permitted to seize evidence for use in investigation and
trial, but that such property must be returned once criminal proceedings
have concluded, unless it is contraband or subject to forfeiture. See
United States v. 608 Taylor Ave., Apartment 302, 584 F.2d 1297, 1302 (3d
Cir.1978); see also United States v. Wilson, 540 F.2d 1100, 1103
(D.C.Cir.1976) (District Court has both the jurisdiction and duty to
return property against which no government claim lies). A person
aggrieved by the deprivation of property may file a motion under Rule
41(e), Fed.R.Crim.P.,3 to request the return of that property. Government
of Virgin Islands v. Edwards, 903 F.2d 267, 273 (3d Cir.1990). A District
Court has jurisdiction to entertain a motion for return of property made
after the termination of criminal proceedings against the defendant; such
an action is treated as a civil proceeding for equitable relief. See
United States v. Martinson, 809 F.2d 1364 (9th Cir.1987); Rufu v. United
States, 20 F.3d 63 (2d Cir.1994); Thompson v. Covington, 47 F.3d 974, 975
(8th Cir.1995). We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the District Court's decision to exercise its equitable
jurisdiction for abuse of discretion.
See Ramsden v. United States, 2 F.3d 322, 324 (9th Cir.1993).
___________________________________________________
3. Fed.R.Crim.P. 41(e) reads:

     Motion for Return of Property. A person aggrieved by an unlawful
search
and seizure or by the deprivation of property may move the district court
for the district in which the property was seized 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. If the motion is granted, the
property shall be returned to the movant, although reasonable conditions
may be imposed to protect access and use of the property in subsequent
proceedings. If a motion for return of property is made or comes on for
hearing in the district of trial after an indictment or information is
filed, it shall be treated also as a motion to suppress under Rule 12.
_____________________________________________________

                                          III.

The government asserts that it is obvious that in order for a District
Court to grant a motion for return of property there must be something to
return. This argument might succeed if the government had never had actual
or constructive possession of the property at issue. See, e.g., United
States v. Solis, 108 F.3d 722 (7th Cir.1997).

However, that is not the case here. In essence, the government argues that
Chambers' motion under Rule 41(e) is moot because the government no longer
has anything to return.4 Such an argument has been rejected uniformly by
the Courts of Appeals. See, e.g., United States v. Kanasco, Ltd., 123 F.3d
209, 210 n. 1 (4th Cir.1997); Thompson v. Covington, 47 F.3d 974, 975 (8th
Cir.1995) (per curiam); Mora v. United States, 955 F.2d 156, 160 (2d
Cir.1992); Martinson, 809 F.2d at 1368; United States v. Francis, 646 F.2d
251, 262-63 (6th Cir.1981); Mr. Lucky Messenger Serv., Inc. v. United
States, 587 F.2d 15, 17 (7th Cir.1978).

In Mora, the District Court had denied a prisoner's motion for return of
property on the ground that it could not direct the government to return
property that it no longer had. 955 F.2d 156 (2d Cir.1992). In holding
that the
motion for return of property was not moot, the Court of Appeals
explained:
     when the government gives away, loses or destroys a prisoner's
property, such unilateral conduct on the government's part does not ...
deprive the court ... of its jurisdiction. Rather, when a court has
asserted its equitable jurisdiction over a matter, it retains that
jurisdiction so long as necessary
to afford appropriate relief to the movant.

955 F.2d at 160.

We agree and join those Courts that have held that a motion for return of
property is not rendered moot merely because the government no longer
possesses the seized property.

Although this Court has not addressed the precise question presented here,
we find support for our conclusion in our decision in United States v.
Frank, 763 F.2d 551, 552 (3d Cir.1985). There, we reversed the District
Court's order holding that it did not have jurisdiction to determine who
was entitled to property sought through a motion for return of property.5
We rejected the government's argument that the District Court did not have
jurisdiction to
return the property because the check at issue had been converted to cash
proceeds and placed in funds in the Treasury, explaining that, "[t]he IRS,
merely by converting the form of evidence, may not frustrate the district
court's authority to control the disposition of evidence in a criminal
prosecution." Id. at 553. Likewise, the government can not defeat a
properly filed motion for return of property merely by stating that it has
destroyed the
property or given the property to third parties.
_______________________________________________________
4. The concept of mootness as applied herein relates to the "mooting" of
jurisdiction by virtue of lack of possession of the property in question.
See United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir.1987).

5. In Frank, defendant's business partners filed a motion for return of a
check that was seized by the IRS on the ground that the check belonged to
them.
_______________________________________________________

We now turn to the second question presented in this matter: which party
bears the evidentiary burden when a motion for return of property is made
after the termination of criminal proceedings? Specifically, we must
decide whether the District Court properly denied Chambers' motion solely
on the strength of the government's representations that the property had
been transferred to third parties, destroyed or forfeited.

If a motion for return of property is made while a criminal prosecution is
pending, the burden is on the movant to show that he or she is entitled to
the property. Martinson, 809 F.2d at 1369. "Generally, a Rule 41(e) 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.' " United
States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir.1991). The burden
shifts to the government when the criminal proceedings have terminated.
Martinson, 809 F.2d at 1369. 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. Id.; see also Edwards, 903 F.2d at 274 (after termination of
criminal
proceedings, the government must show "that it had a legitimate reason not
to return the property to the person from whom it was seized"). The
government may meet this burden by demonstrating "a cognizable claim of
ownership or right to possession" adverse to that of the movant. Van
Cauwenberghe, 934 F.2d at 1061. The government must do more than state,
without documentary support, that it no longer possesses the property at
issue. See Mora, 955 F.2d at 159.

If, as in this case, the government asserts that it no longer has the
property sought, the District Court must determine, in fact, whether the
government retains possession of the property; if it finds that the
government no longer possesses the property, the District Court must
determine what happened to the property. Id. The District Court must hold
an evidentiary hearing on any disputed issue of fact necessary to the
resolution of the motion. See United States v. Dean, 100 F.3d 19, 21 (5th
Cir.1996); United States v. Hess, 982 F.2d 181, 186 (6th Cir.1992).

                                          IV.

Because no evidence was offered or taken in this matter, the government
did not meet its burden and the District Court did not discharge its duty
under Rule 41(e). Accordingly, we will vacate the District Court's order
denying appellant's motion for return of property and remand for further
proceedings consistent with this opinion. Upon remand, the District Court
shall determine whether it was proper for the government to surrender the
1993 Toyota to the repossession company and to destroy appellant's
business documents. If the District Court concludes that the government's
actions in either regard were not proper, it shall determine what remedies
are available.

Inasmuch as Chambers has asserted that he was not provided notice of the
forfeiture of the 1987 Road Ranger, the District Court shall permit him to
amend his motion to assert this collateral attack upon the forfeiture. See
Robinson
v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972) (per curiam)
(an order for forfeiture may be set aside if the manner of notice does not
comport with due process); United States v. Marolf, 173 F.3d 1213, 1999 WL
198913 (9th Cir. Apr.12, 1999) (constitutionally deficient notice of
administrative forfeiture renders the forfeiture void); Clymore v. United
States, 164 F.3d 569, 574 (10th Cir.1999) (where notice was
constitutionally deficient and statute of limitations problems exist,
forfeiture should be vacated and the statute of limitations allowed to
operate, subject to any available government arguments against it); United
States v. Volanty, 79 F.3d 86, 88 (8th Cir.1996) (when an administrative
forfeiture is void for lack of notice, the forfeiture must be set aside
and the government ordered to return the property or to commence judicial
forfeiture in the District Court).
Given the complexity of the issues in this matter, the District Court may
wish to appoint counsel for Chambers upon remand.
