UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-6668

JAMES EARL LINDSEY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CR-96-858)

Submitted: December 14, 1999

Decided: January 7, 2000

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

James Earl Lindsey, Appellant Pro Se. Harold Watson Gowdy, III,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

James Earl Lindsey appeals the district court's order denying his
Fed. R. Crim. P. 41(e) motion for return of seized property. Because
the burden was on the government to demonstrate a legitimate reason
to retain the cash and jewelry at issue, and no such showing has been
made, we vacate and remand.

At the time of Lindsey's arrest for possession of powder and crack
cocaine, officers seized marijuana, powder cocaine, crack, $1860 in
cash, and jewelry that Lindsey values at $5000. Lindsey moved to
suppress statements made at the time of arrest as well as the drugs and
currency. After the district court denied his motion to suppress, Lind-
sey changed his plea to guilty.

He moved following acceptance of his guilty plea for return of the
items. The district court denied the motion because the items might
be used in the pending prosecution. Subsequently, while his direct
criminal appeal was pending, Lindsey renewed his Rule 41(e) motion.
The district court denied the motion because of the pendency of the
appeal and the possibility that, if the conviction were overturned and
a trial conducted, the items might be used as evidence at trial. Subse-
quently, after we upheld Lindsey's conviction and sentence on direct
appeal, he filed another motion for return of the currency and jewelry.
The district court denied the motion because it previously had ruled
the search and seizure of the cash, statements, and drugs constitu-
tional. Lindsey timely appeals.

In a postconviction Rule 41(e) proceeding, "a criminal defendant
is presumed to have the right to the return of his property once it is
no longer needed as evidence." United States v. Mills, 991 F.2d 609,
612 (9th Cir. 1993); see United States v. Duncan , 918 F.2d 647, 654
(6th Cir. 1990). In this case, there is no dispute that the government
seized the cash and jewelry from Lindsey. Because this property is
not contraband, Lindsey is presumably entitled to return of the prop-
erty.

                    2
Once the movant makes out a prima facie case of lawful entitle-
ment, the burden shifts to the government to show that "it has a legiti-
mate reason to retain the property." United States v. Chambers, 192
F.3d 374, 377 (3d Cir. 1999). The government may meet this burden
by showing that there was a valid forfeiture proceeding where the
movant had adequate notice of--and an opportunity to contest--the
forfeiture. See United States v. Clagett, 3 F.3d 1355, 1356 (9th Cir.
1993) (opportunity to be heard in forfeiture proceeding permits dis-
missal of Rule 41(e) motion); see also Chambers , 192 F.3d at 377.

Here, the government has never responded to any of Lindsey's
Rule 41(e) motions, including the one that presently is at issue. There
is nothing in the record to contradict Lindsey's allegations that no for-
feiture proceedings against the property have been initiated. On the
current record, then, the government has failed to meet its burden of
showing a legitimate reason to retain the cash and jewelry.

Accordingly, the district court erred in denying the Rule 41(e)
motion. We therefore grant leave to proceed in forma pauperis, vacate
the district court's order, and remand so that the government may
respond to the motion and for such other proceedings as may be war-
ranted. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid the decisional process.

VACATED AND REMANDED

                     3
