                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-2626
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Elman Lainfiesta-Areyanos,              *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: March 25, 2010
                                Filed: April 29, 2010
                                 ___________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
                        ___________

PER CURIAM.

      Elman Lainfiesta-Areyanos appeals the district court’s denial of his Federal
Rule of Criminal Procedure 41(g) motion seeking the return of property allegedly
seized from him upon his arrest, including a cell phone, a wallet, two identification
documents, and a certain amount of cash. We affirm in part and reverse in part.

       State authorities in Minnesota arrested Lainfiesta-Areyanos (“Lainfiesta”) in
October 2005 after receiving information that he possessed drugs. During a search of
petitioner’s person and vehicle, police found a box containing methamphetamine, a
cellular telephone, $1602 in cash, and a wallet containing various identification
documents. A federal grand jury charged Lainfiesta with the offense of possession
with intent to distribute methamphetamine. Lainfiesta pled guilty, and the district
court sentenced him to 57 months’ imprisonment in August 2006. In the meantime,
the Hennepin County Attorney in Minnesota administratively forfeited $1602 in cash
that was seized from Lainfiesta.

       In March 2009, Lainfiesta filed a pro se motion for return of property, pursuant
to Federal Rule of Criminal Procedure 41(g), seeking return of property seized from
him at the time of his arrest in October 2005. The motion identified this property as
$2175 in cash, a wallet, identification documents, and a cellular telephone. The
government filed a response, accompanied by two exhibits that contained police
reports and a forfeiture notice from the Hennepin County Attorney’s Office.
Lainfiesta filed a reply. On the basis of these documents, the district court denied the
motion, finding that “the $1,602 was subject to forfeiture, and there is no evidence
that defendant’s other property was seized.”

       With respect to the disputed cash, we conclude that Lainfiesta-Areyanos did not
establish lawful entitlement to it. The record showed that $1602 had been forfeited
through state proceedings, and Lainfiesta clearly had no right to possess this cash. If
police really did seize another $573 from Lainfiesta, then this amount was not
resolved by the administrative forfeiture, but Lainfiesta suggests no reason why the
remaining sum would not have been forfeited for the same reasons that the $1602 was
forfeited. We thus affirm that aspect of the district court’s order. See United States
v. Felici, 208 F.3d 667, 670 (8th Cir. 2000) (no evidentiary hearing required where the
movant was not entitled under the law to possess the disputed property).

      Regarding the cell phone, wallet, and identification documents, however, we
conclude that the district court erred by dismissing Lainfiesta-Areyonos’s motion
without an evidentiary hearing. The court “must receive evidence on any factual issue
necessary to decide the motion,” Fed. R. Crim. P. 41(g), and where there is a factual
dispute as to whether the Lainfiesta is lawfully entitled to possess the challenged

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property, the court must hold an evidentiary hearing to resolve the matter. United
States v. Burton, 167 F.3d 410, 411-12 (8th Cir. 1999).

       Lainfiesta’s motion alleged that the government seized a cellular phone, wallet,
and identification documents at the time of arrest. The government’s response
included a police report authored by an Officer Radke, dated October 27, 2005, that
says Radke searched Lainfiesta and “recovered a wallet” that contained “numerous
ID’s.” The report says that Radke found Lainfiesta “in possession of a cellular
telephone,” and determined that the telephone number assigned to the phone matched
a number that a cooperating defendant provided for a drug trafficking source. The
report also states that Radke searched Lainfiesta’s vehicle after he was arrested. In
conclusion, the report says that Radke “bagged up all of the evidence per policy and
gave it to Officer Gomez for transport to the property room.” This officer’s report
does not specify whether or not the wallet, identification documents, and cellular
phone were among the evidence that was “bagged up.”

       A report from Officer Gomez states that he received $1602 in cash, a box, and
suspected drugs from the Radke. This report does not mention the wallet,
identification cards, or cell phone. A list of “Property and Evidence” for Lainfiesta’s
case that was produced by the police department does not include these items.

      In its pleading in the district court, the government stated the following:

      The case agent in this investigation, Detective Randy Olson,
      Minneapolis Police Department, has represented to the government that
      items seized by the police and not appearing on the “Property and
      Evidence” inventory are released back to suspects shortly after the
      booking process. Detective Olson has searched the Minneapolis Police
      Department property records in this case and has not found any of the
      items claimed by the defendant. He has represented that these items
      were likely returned to the defendant or left in his vehicle.


                                         -3-
The implication of this statement seems to be that Officer Radke may have seized the
wallet, identification cards, and cell phone from Lainfiesta, but that he or another
officer released them back to Lainfiesta “after the booking process.” The
government’s pleading, however, was not evidence, and the government presented no
evidence from Radke, Olson, or any other officer that he or she released any seized
property to Lainfiesta or left these items (which were seized from Lainfiesta’s person)
in Lainfiesta’s vehicle.

       We conclude that an evidentiary hearing was required. The government’s
pleading implicitly acknowledged that the police reports alone did not establish that
police did not seize Lainfiesta’s property. The representation of Detective Olson was
necessary to complete the logical chain, but this was not presented as evidence.
Lainfiesta, moreover, disputed the government’s response, and reiterated his claim
that the police seized his wallet, identification documents, and cell phone. (R. Doc.
53). Under those circumstances, an evidentiary hearing was necessary to resolve the
factual dispute. See Williams v. Lockhart, 849 F.2d 1134, 1137-38 (8th Cir. 1988).

      For these reasons, we affirm the district court’s order denying Lainfiesta’s
motion for return of cash, but reverse and remand for an evidentiary hearing with
respect to the other property, and for consideration of any alternative arguments
concerning Lainfiesta’s right to possess the disputed property. E.g., United States v.
Lewis, 987 F.2d 1349, 1356 (8th Cir. 1993) (discussing forfeiture of cellular
telephone).
                       ______________________________




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