                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 06-2367

                             UNITED STATES,

                                Appellee,

                                     v.

                   JESÚS ALBERTO URIBE-LONDONO,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Gustavo A. Gelpí, U.S. District              Judge]


                                  Before

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



     Jesús A. Uribe-Londono on brief pro se.
     Nelson Pérez-Sosa, Assistant United States Attorney, Germán A.
Rieckhoff, Assistant United States Attorney, an Rosa Emilia
Rodríguez-Vélez, United States Attorney, on brief for appellee.



                              July 18, 2007
          Per Curiam.    Jesus Uribe-Londono, currently serving a

120-month sentence for his conviction of sexual exploitation of

children in violation of 18 U.S.C. § 2251, appeals the district

court's denial of his post-conviction motion for the return of

seized property, most of which appears to be documentary in nature,

pursuant to Fed. R. Crim. P. 41(g).    In a prior appeal, we affirmed

the district court's denial of a Rule 41(g) motion appellant filed

before the criminal proceedings had concluded, finding, inter alia,

that the district court reasonably could have concluded that the

property retained was related to the case, that the government had

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

criminal proceedings had concluded, and that appellant's requests

were premature.   See United States v. Uribe-Londono, No. 05-2121

(1st Cir. Apr. 12, 2006).

          After the prior appeal was decided and the criminal

proceedings had concluded, appellant renewed his motion, arguing

that he was entitled to the return of all property still in the

government's possession because the government had not brought a

forfeiture proceeding.   Appellant attached to the motion copies of

some of the FBI inventory forms the government had previously

submitted in response to an order directing it to identify property

still in its possession.    The property listed in the forms ranged

from video camera equipment to items such as notebooks, calendars,

business cards, agendas,    computer disks and a copy of a computer


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hard drive. Appellant argued that of the property seized, only the

video camera and one videocassette tape were used in the underlying

offense,     and that much of the property in issue was work-related,

vital to his ability to obtain employment in the future, and bore

no connection to the offense of conviction. Appellant acknowledged

that computer hardware had been returned to his former employer,

but   he    alleged      that    the   government     retained       copies   of     the

information contained therein and requested that the government

provide him with a copy of that material.                      Appellant further

asserted that, as part of discovery in the criminal proceedings,

the government had already provided him with copies of many of the

documentary materials he sought, but he maintained that the copies

were illegible.

             The government opposed the motion, arguing that appellant

was   not    entitled     to    the    return   of   the    property       because    it

constituted derivative contraband either because it was used to

commit      the   offense       of    conviction     or    because    it    contained

pornographic images of minors or contact information for minors.

However, the government did not submit affidavits or any other

evidence to support its assertions concerning the contents or

nature of the property in issue.              Further, although the government

asserted that it had returned computer equipment to appellant's

former employer and suggested that appellant did not have standing

to    request     that    material,      it   did    not    specifically      address


                                          -3-
appellant's request for a copy of the information contained in the

hard drive which, according to the inventory forms, the government

still had in its possession. The district court denied appellant's

Rule 41(g) request the day after the government's opposition was

filed, stating that it had "reviewed the FBI's inventory list and

notes that all property listed therein which was not returned to

defendant is intrinsically intertwined to the instruments used to

facilitate his delictive activity[,]" and that "non-case related

items were already returned to defendant's representative."          This

appeal ensued.

           We review the district court's interpretation of Rule

41(g) de novo and its factual determinations for clear error.         See

United States v. Pierre, 484 F.3d 75, 87, (1st Cir. 2007).           Rule

41(g) provides that "[a] person aggrieved . . . by the deprivation

of property may move [the district court] for the property's

return."   "Once seized property is no longer needed as evidence, a

criminal defendant is presumed to have the right to its return.

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." Pierre,

484 F.3d at 87 (internal citations, quotations and alterations

omitted); see also United States v. Chambers, 192 F.3d 374, 377 (3d

Cir. 1999) ("The burden shifts to the government when the criminal


                                   -4-
proceedings have terminated.    At that point, the person from whom

the property was seized is presumed to have a right to its return,

and the government must demonstrate that it has a legitimate reason

to retain the property.").

          To the extent appellant contends that the government was

required to establish that the property in question constituted

derivative contraband or was otherwise subject to forfeiture by

proof beyond a reasonable doubt, his argument does not find support

in the case law.     See United States v. Maez, 915 F.2d 1466, 1468

(10th Cir. 1990) (because Rule 41(g) proceedings are civil in

nature, "[t]he judge is not bound by the criminal proceeding's

standard of proof" and the civil       preponderance-of-the-evidence

standard applies).    However, to the extent appellant contends that

the district court misallocated the burden of proof and improperly

decided disputed facts without sufficient evidence, his argument

has merit.

          This court has not set forth in detail the procedure the

district court is to follow when presented with a post-conviction

Rule 41(g) motion, but we have stated that such motions are to be

treated as civil complaints for equitable relief, see United States

v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995); accord Rufu v. United

States, 20 F.3d 63, 65 (2d Cir. 1994), and Rule 41(g) itself

provides that "[t]he court shall receive evidence on any issue of

fact necessary to the decision of the motion."      As noted above,


                                 -5-
appellant conceded that one video and the camera used to produce

that video "contained evidence that was the subject of [his]

conviction," but asserted that the remainder of the documents still

in the government's possession were work-related and contained no

information    relating   to    minors    or   child    pornography.      The

government disputed that contention and argued that the documents

were found to contain information relating to minors, and as such,

constituted derivative contraband; however, the government did not

submit affidavits or other evidence to substantiate its assertion,

and the government's inventory forms did not describe the specific

nature or contents of the materials seized.            Therefore, it was not

"apparent," as the government contends, that the property appellant

sought constituted derivative contraband.              Cf. United States v.

Felici, 208 F.3d 667, 670-71 (8th Cir. 2000) (district court

properly denied Rule 41(e) request for the return of firearms

without an evidentiary hearing because defendant's status as a

convicted felon made it illegal for him to possess firearms.

However, district court erred in denying defendant's request for

the return of items the government asserted were "drug-related"

without   an   evidentiary     hearing   where   it    was   not   immediately

apparent whether items were used or intended to be used in an

unlawful manner).

           The district court also failed to address appellant's

request for the copy of information contained in the computer hard


                                    -6-
drive. On appeal, the government takes the position that appellant

had no standing to request that material because the hard drive

belonged to appellant's former employer.   However, the government

did not develop that argument below, and the district court did not

make any findings of fact as to whether the government retained a

copy of the information contained in the hard drive, whether

appellant had standing to request the copy, and if so, whether the

document was properly withheld. Further, the district court failed

to afford appellant an opportunity to respond to the government's

opposition, having denied appellant's motion the day after the

government's opposition was filed.

          In sum, we cannot sustain the district court's finding

that the property in dispute was so "inextricably intertwined" with

the underlying offense as to constitute derivative contraband

because it appears to be based solely on the government's unsworn

and unsubstantiated assertions concerning the nature and contents

of the seized property, which is not self-evident and was disputed

by appellant.   See Fed. R. Crim. P. 41(g); Rufu, 20 F.3d at 65

(reversing denial of Rule 41(g) motion where numerous factual

disputes existed concerning, inter alia, what property was in the

government's possession and what property had been returned, and

district court's decision was based solely upon an unsworn letter

from the government, without affidavits or DEA records); Mora v.

United States, 955 F.2d 156, 158 (2nd Cir. 1992) (holding that


                               -7-
district court erred in relying on government's unsubstantiated

assertions concerning disposition of property sought in Rule 41(e)

motion).   Accordingly, we reverse the district court's denial of

appellant's Rule 41(g) motion and remand the matter for further

proceedings.




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