                           In the
    United States Court of Appeals
               For the Seventh Circuit
                        ____________

No. 08-1283
LAWRENCE STEVENS,
                                           Petitioner-Appellant,
                               v.

UNITED STATES OF AMERICA,
                                          Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
         No. 07 C 2180—Michael P. McCuskey, Chief Judge.
                        ____________
       SUBMITTED MAY 8, 2008—DECIDED JULY 1, 2008Œ
                        ____________


 Before EASTERBROOK, Chief Judge, and RIPPLE and
ROVNER, Circuit Judges.
  RIPPLE, Circuit Judge. This is Lawrence Stevens’ second
appeal from the district court’s denial of his motion to
return property pursuant to Federal Rule of Criminal
Procedure 41(g). In its initial disposition, the district
court denied Mr. Stevens relief based solely on the argu-


Œ
  After examining the briefs and the record, we have concluded
that oral argument is unnecessary. Thus, the appeal is submitted
on the briefs and the record. Fed. R. App. P. 34(a)(2).
2                                              No. 08-1283

ments made by the Government. We vacated this judg-
ment and instructed the district court that its disposition
of Mr. Stevens’ motion must have an evidentiary basis.
United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007)
(Stevens II). On remand, the Government provided sup-
port for its position in the form of an affidavit and other
documentary evidence. Based on this evidence, the dis-
trict court again denied Mr. Stevens’ motion. We affirm
the judgment of the district court.


                            I
                    BACKGROUND
A. Federal Prosecution
  In March 2002, two armed men robbed the Land of
Lincoln Credit Union (“Credit Union”) in Decatur, Illinois.
One of the suspected robbers, Alban Woods, was found
nine days later; he had been shot to death. The investiga-
tion of these crimes led the police to Mr. Stevens. A
search of Mr. Stevens’ residence uncovered various
items, including crack cocaine, firearms and ammunition,
a postal scale, a cellular phone, $49,312 in currency1 and
two cars—a Buick Roadmaster and a Lincoln Towncar.
  As a result of this search, Mr. Stevens was charged with,
and convicted of, federal drug and firearms offenses. He
was sentenced to a term of 327 months’ imprisonment to
be followed by a consecutive term of life imprisonment.
The district court also imposed a special assessment of


1
   Specifically, $15,750 was recovered from Mr. Stevens’
bedroom, $1,580 was found hidden under a floor board, and
another $31,982 was discovered in the ceiling.
No. 08-1283                                               3

$300, but it made no reference to any restitution or forfei-
ture of the items seized. We affirmed Mr. Stevens’ convic-
tion and sentence on direct appeal. See United States v.
Stevens, 380 F.3d 1021 (7th Cir. 2004).


B. Motion to Return Property
  Over two years after we affirmed his conviction and
sentence, Mr. Stevens filed a motion under Federal Rule
of Criminal Procedure 41(g) in which he demanded
return of unspecified property seized by the Government.
The district court ordered the Government to respond
to Mr. Stevens’ motion.
  In its response, the Government argued that Mr. Stevens’
motion should be denied because it no longer possessed
any of the items seized during the search of Mr. Stevens’
residence. The Government gave the following account
of the items taken from Mr. Stevens’ residence: (1) the
cars had been forfeited judicially in proceedings in the
Central District of Illinois; (2) the $15,750 and the $1,580
had been used as evidence in Mr. Stevens’ criminal trial
and subsequently turned over to the Macon County
Sheriff’s Department for state forfeiture proceedings;
(3) the cellular phone and the scale had been used as
evidence in Mr. Stevens’ federal criminal trial and subse-
quently were destroyed by the clerk of the court; (4) the
crack cocaine had been used as evidence in Mr. Stevens’
federal criminal trial and subsequently had been returned
to the Macon County Sheriff’s Department, where it
was destroyed; (5) the guns and ammunition also had
been used in the federal trial and subsequently had been
turned over to the Macon County Sheriff’s Department
for use in its investigation into the murder of Woods; and
4                                               No. 08-1283

(6) the $31,982 had been turned over to the Federal Bureau
of Investigation (“FBI”) for its investigation into the
robbery of the Credit Union and subsequently was re-
turned to the Credit Union by the FBI. The Government
did not support this explanation with any testimonial or
documentary evidence.
  Based on the Government’s submission, the court denied
Mr. Stevens’ motion. Mr. Stevens then filed a reply to
the Government’s response. In his reply, Mr. Stevens
identified the specific items he wanted returned; these
included the items identified in the Government’s re-
sponse, as well as clothing, jewelry, a pager and videos
that he alleged also had been seized. The district court
considered Mr. Stevens’ reply, but it determined never-
theless that Mr. Stevens was not entitled to the relief
sought. Mr. Stevens appealed.
  On appeal, we vacated the district court’s judgment.
We acknowledged Mr. Stevens’ right to employ Rule 41
“to recover evidence that the Government no longer
needs.” Stevens II, 500 F.3d at 628. However, we noted,
“Rule 41(g) permits only the recovery of property in the
possession of the Government. Therefore, if the Govern-
ment no longer possesses the property at issue, no relief
is available under Rule 41(g).” Id. (citations omitted). We
further explained that “whether the Government still
possesses the property at issue is a question of fact,” and,
according to Rule 41(g), the resolution of any factual
issue must be supported by evidence. Id. This did not
mean that the “district court must conduct an evidentiary
hearing to resolve all factual disputes”; however, we
noted that the rule does “require . . . the district court to
receive evidence to resolve factual disputes” and that the
evidence can take the form “of sworn affidavits or docu-
No. 08-1283                                                 5

ments verifying the chain of custody of particular items.”
Id. Because the district court’s factual conclusion that the
Government no longer possessed Mr. Stevens’ property
was not supported by any evidence, we vacated the dis-
trict court’s judgment. Specifically, we ordered that “[o]n
remand, the district court should receive evidence and
make the appropriate factual findings with respect to the
current status of the property Mr. Stevens seeks to re-
cover.” Id. at 629.


C. Proceedings on Remand
  On remand, the district court ordered that Mr. Stevens’
motion be filed as a civil matter and directed the Gov-
ernment to respond to the motion and to provide eviden-
tiary support for its assertion that it no longer possessed
Mr. Stevens’ property. The Government filed a response
that included an affidavit of FBI Special Agent Jeffrey
Warren, docket sheets from state and federal forfeiture
proceedings, and a judgment in a federal case. In his
affidavit, Special Agent Warren explained that the $15,755
and the $1,580 were turned over to the Macon County
Sheriff’s Department for state forfeiture proceedings;
he returned the remainder of the currency to the Credit
Union.2 With respect to the cellular phone and the
scale, Special Agent Warren stated that they had been
deposited with the clerk’s office for use in the federal trial
but had not been withdrawn. The district court took
judicial notice that it is the policy of the clerk’s office to


2
  Agent Warren returned these funds to the Credit Union
because Mr. Stevens, in his initial interviews with police,
had stated that the money represented proceeds of the robbery.
6                                              No. 08-1283

destroy property that is not claimed after a case is com-
pleted. The court also took judicial notice of federal
forfeiture proceedings that had disposed of the cars. With
respect to the remaining items, the clothing, jewelry
and DVDs, Special Agent Warren stated that those
items never had been seized from Mr. Stevens’ home
and were not in the Government’s possession.
  In his reply, Mr. Stevens maintained that portions of the
Government’s response conflicted with positions that it
had taken during his criminal trial. He also disputed that
he had told police that the $31,982 were proceeds of the
Credit Union robbery. However, he did not dispute that
the Government no longer possessed any of the prop-
erty that he sought through his motion.
  After considering the parties’ submissions, the district
court again denied Mr. Stevens’ motion. The court ob-
served that “the fact that the government doesn’t have [the
property sought in a Rule 41(g) motion] is ordinarily a
conclusive ground for denial of the motion.” R.7 at 7
(quoting Okoro v. Callaghan, 324 F.3d 488, 492 (7th Cir.
2003)) (alteration in original). Thus, the court concluded
that because “the Government is not in possession of any
of the items sought by Petitioner, the Motion for Return of
Property must be DENIED.” Id.


                            II
                     DISCUSSION
  In Mr. Stevens’ first appeal from the denial of his Rule
41(g) motion, we vacated the district court’s judgment on
a single ground: It had made a factual finding—that the
Government no longer possessed any of Mr. Stevens’
No. 08-1283                                                7

property—without complying with the requirement,
set forth in Rule 41(g), that the district court “receive
evidence on any factual issue necessary to decide the
motion.” Fed. R. Crim. P. 41(g). On remand, the district
court complied with our instruction to “receive evidence
and make the appropriate factual findings with respect
to the current status of the property Mr. Stevens seeks to
recover.” Stevens II, 500 F.3d at 629. The district court
docketed Mr. Stevens motion as a civil matter and ordered
the Government “to respond to the motion with evid-
ence to support its assertion that it no longer possesses the
property sought by Petitioner.” R.7 at 7. The Government
filed its response supported by the affidavit of Special
Agent Warren, docket sheets from state and federal
forfeiture actions, and a judgment in a federal civil case.
Mr. Stevens filed a motion to strike and a reply to the
Government’s response. Although Mr. Stevens argued
that the Government had not complied with our mandate
because it had not “supplied receipts, or other forms
of proof establishing that it returned the funds in ques-
tion to any third-party,” R.5 at 1, he did not come forward
with any evidence that contradicted the Government’s
claim that it no longer was in possession of any of his
property. The district court, therefore, denied Mr. Stevens’
motion.
  Mr. Stevens’ contention that the district court failed to
comply with our instructions is without merit. He insists
that, in order to support its claim that it no longer pos-
sesses the currency seized from Mr. Stevens’ residence, the
Government was required to come forward with “some
objective documentary evidence indicating actual receipt
thereof by the bank.” Appellant’s Br. at 10. We stated
in Stevens II, however, that “[s]uch evidence may come,
8                                                     No. 08-1283

for example, in the form of sworn affidavits or docu-
ments verifying the chain of custody of particular items.”
500 F.3d at 629 (emphasis added). Nothing in our opin-
ion required receipts or statements from third parties.3
  Mr. Stevens also maintains that the Government’s
disposition of his property did not comply with the Civil
Asset Forfeiture Reform Act (“CAFRA”), 18 U.S.C. § 983
et seq., and, therefore, the district court should have
applied a presumption that the Government was not
being truthful with respect to the status of Mr. Stevens’
property. See Appellant’s Br. at 11-12. However, even
assuming some application of CAFRA to the forfeiture of
Mr. Stevens’ property, Mr. Stevens does not point to
any provision of CAFRA, any other statute or any case
law that authorizes the application of such a presump-
tion in a Rule 41(g) proceeding.
   Finally, Mr. Stevens maintains that the Government’s
return of the $31,982 to the Credit Union is inconsistent
with the position it took in his criminal trial—that the
seized currency was generated through drug sales. He
claims that the jurors undoubtedly “relied on the evidence
of the seized monies to find that [he] was trafficking in
illegal drugs.” Appellant’s Br. at 9. Therefore, because his
conviction is “premised on false or perjured testimony
or evidence,” this court should reverse his conviction. Id.
at 10. If Mr. Stevens believes that the arguments made


3
   For the first time on appeal, Mr. Stevens suggests that the
district court should have allowed him to conduct limited
discovery to test the Government’s evidence. See Appellant’s
Br. at 11. Because this argument was not presented to the dis-
trict court, it is forfeited. See, e.g., King v. Illinois St. Bd. of
Elections, 410 F.3d 404, 421 (7th Cir. 2006).
No. 08-1283                                              9

by the Government in this action undermine the validity
of his criminal sentence, the proper means for raising
that argument is through a motion brought pursuant to
28 U.S.C. § 2255 for relief from the criminal judgment. He
may not challenge his conviction by way of a Rule 41(g)
motion.


                       Conclusion
  On remand from Stevens II, the district court concluded,
based on the Government’s undisputed evidence, that
the Government no longer possessed Mr. Stevens’ prop-
erty. Because the district court found that the Govern-
ment was not in possession of any of Mr. Stevens’ property,
the court did not abuse its discretion in denying
Mr. Stevens’ Rule 41(g) motion. Consequently, we
affirm the judgment of the district court.
                                                AFFIRMED




                   USCA-02-C-0072—7-1-08
