               Not for Publication in West's Federal Reporter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. 05-2121

                             UNITED STATES,

                                Appellee,

                                     v.

                   JESUS ALBERTO URIBE-LONDONO,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

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


                                  Before

                    Torruella, Selya and Lipez,
                          Circuit Judges.



     Jesus A. Uribe-Londono on brief pro se.
     H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and
Germán A. Rieckenhoff, Assistant United States Attorneys, on
brief for appellee.



                             April 12, 2006
                Per Curiam.     Appellant Jesus Alberto Uribe-Londono is

currently serving a 120-month sentence after having been convicted

of two counts of sexual exploitation of children, in violation of

18 U.S.C. § 2251.       We affirmed the conviction and sentence on May

20, 2005.        See United States v. Uribe-Londono, No. 02-2027, slip

op. (1st Cir. May 20, 2005) (per curiam).                While the direct appeal

was    pending,     appellant    filed   a     motion   in   the   district    court

requesting the return of seized property pursuant to Fed. R. Crim.

P. 41(g).1        Appellant now challenges the district court's denial

both       of   that   motion    and     of     his     subsequent    motion    for

reconsideration.2

                Rule 41(g) provides that "[a] person aggrieved by an

unlawful search and seizure or by the deprivation of property may

move the district court . . . for the return of property on the

ground that such person is entitled to lawful possession of the


       1
      Although the parties cite Fed. R. Crim. P. 41(e), the
provision authorizing motions to return seized property is now
found at Fed. R. Crim. P. 41(g).
       2
      The government contends that we lack jurisdiction to review
these rulings because the notice of appeal was not filed within the
ten-day period for filing an appeal in a criminal case. See Fed.
R. App. P. 4(b).    We will assume, without deciding, that this
appeal is timely. First, even if the ten-day period applies, the
prisoner mailbox rule, Fed. R. App. P. 4(c), would make the appeal
timely. Second, it may be that the Rule 41(g) motion should be
treated as a civil complaint for equitable relief, see United
States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995), the denial of
which is subject to the sixty-day appeal deadline applicable in
civil cases under Fed. R. App. P. 4(a)(1)(B). See United States v.
Potes Ramirez, 260 F.3d 1310, 1313 (11th Cir. 2001); United States
v. Bein, 214 F.3d 408, 412 n.3 (3d Cir. 2000).

                                         -2-
property.      The court shall receive evidence on any issue of fact

necessary to the decision of the motion."        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. Dean, 100 F.3d 19,

20 (5th Cir. 1996); United States v. Mills, 991 F.2d 609, 612 (9th

Cir. 1993).     However, "[a] Rule 41[(g)] 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."

Mills, 991 F.2d at 612 (citations and internal quotation marks

omitted); see United States v. Duncan, 918 F.2d 647, 654 (6th Cir.

1990) (explaining that "a defendant's right to the return of

lawfully seized property is subject to any continuing interest the

government has in the property")           The government's interest may

take a variety of different forms; what matters is that it is a

legitimate interest.      Duncan, 918 F.2d at 654.

              Oddly, the arguments both parties assert on appeal are

substantially different than those raised in the district court.

The government maintains that the documentary evidence and camera

equipment appellant seeks to have returned constitute derivative

contraband (and is, therefore, subject to forfeiture).               In the

proceedings     below,   the    government   objected   to   returning   the

property on the ground that it constituted evidence related to the

case,   but    it   neither    characterized   the   items   as   derivative



                                     -3-
contraband       nor     expressly        claimed      that    they   were     subject       to

forfeiture.

             Appellant seems to view the June 2, 2005, denial of his

motion    for    reconsideration           as    the   equivalent        of   an    order    of

forfeiture and argues in his brief that the government's retention

of the items in question without initiating forfeiture proceedings

violates his due process rights.                  In the district court, however,

appellant seemed to concede that the government had a right to

retain case-related material and only disputed the government's

characterization of the items in question as such.                                 Since both

parties failed to raise their forfeiture arguments before the

district court, they are not properly before us on appeal.                                  See

Teamsters Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21

(1st Cir. 1992) ("If any principle is settled in this circuit, it

is   that,      absent       the   most    extraordinary         circumstances,         legal

theories not raised squarely in the lower court cannot be broached

for the first time on appeal").

             Given that the government did not expressly assert below

that the property was derivative contraband or otherwise subject to

forfeiture, the district court's failure to explain its denial of

appellant's motions or hold an evidentiary hearing to determine

whether the property in dispute was case-related would seem to

suggest      that      its    rulings      were       not     intended    to       adjudicate

appellant's ownership rights.               Since at least some of the property



                                                -4-
appellant sought--e.g., the camera equipment used in committing the

crime and documentary materials that were found to contain contact

information for minors--obviously related to the underlying case,

it seems more likely that the district court simply concluded that

appellant's requests were premature and that the government had

adequately shown a need to retain the items as evidence until the

criminal proceedings had concluded.        We see no error in that

ruling.   See United States v. Saunders, 957 F.2d 1488, 1495 (8th

Cir. 1992)(holding that "[t]he motion for the return of paperwork,

even papers that were not introduced at trial, was premature

because defendant's direct appeal was still pending").         Now that

the criminal proceedings have concluded, appellant can renew his

request for return of property in the district court.           To the

extent    the   government   suggests   that,   even   after   criminal

proceedings have terminated, it may retain non-contraband items

without instituting forfeiture proceedings, we do not pass on that

argument as it has not been sufficiently briefed.

           Affirmed.   See 1st Cir. Loc. R. 27(c).




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