                Not for publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 02-2148

                              UNITED STATES,

                                 Appellee,

                                      v.

                      JOSUE G. REYES-HERNANDEZ,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté,          U.S. District Judge]


                                   Before

                        Boudin, Chief Judge,
                  Campbell, Senior Circuit Judge,
                     and Lipez, Circuit Judge.


     Josue G. Reyes-Hernandez on brief pro se.
     H. S. Garcia, United States Attorney, Sonia I. Torres-Pabon,
Assistant United States Attorney, and Nelson Perez-Sosa, Assistant
United States Attorney, on brief for appellee.



                               May 14, 2003
          Per    Curiam.    In   June   2002,    four   years   after   his

conviction, the appellant, Josue G. Reyes-Hernandez, filed a motion

in the district court, pursuant to Fed. R. Crim. P. 41(e)1, seeking

the return of $1055 that was found in his possession when he was

arrested in 1997.      Reyes-Hernandez asserted that the criminal

proceedings against him had concluded, that he was entitled to

lawful possession of the money, and that he had no reason to

believe that the government had instituted forfeiture proceedings

with respect to the $1055. Although served by Reyes-Hernandez, the

government did not respond to the Rule 41(e) motion.         Nonetheless,

six weeks later, the district court summarily denied it.           Reyes-

Hernandez has appealed.

          On appeal, the government has informed this court that it

has no objection to the return of the $1055 to Reyes-Hernandez.

Accordingly, we vacate the district court's order denying the Rule

41(e) motion and remand for entry of an order granting the Rule

41(e) motion.    Where no forfeiture proceeding with respect to the

$1055 has been instituted, nor is any such proceeding intended to

be instituted, the government does not convincingly argue that the

district court    lacked   jurisdiction   to    grant   Reyes-Hernandez's

requested relief.     Similarly unconvincing is the government's


     1
      Effective December 1, 2002, Rule 41 was amended and
reorganized. What was formerly Rule 41(e) is now found at Rule
41(g) with minor stylistic changes. We refer to the formulation,
i.e., Rule 41(e), effective at the time of Reyes-Hernandez's June
2002 filing.

                                  -2-
suggestion that Reyes-Hernandez should be required to file a

separate civil action pursuant to 28 U.S.C. § 1331.   Even were we

to conclude that a Rule 41(e) motion is an inappropriate vehicle by

which to obtain the requested relief, we would also conclude that

the district court erred in failing to treat the Rule 41(e) motion

as a civil complaint.   See United States v. Giraldo, 45 F.3d 509

(1st Cir. 1995) (per curiam).

          The district court order entered on July 31, 2002 denying

the motion for return of property is vacated and the case is

remanded for entry of an order granting the motion.




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