                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3279
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                NATHANIEL PITTS,
                                                Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 2-10-cr-00703-001)
                     District Judge: Honorable Eduardo C. Robreno
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 25, 2016
             Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges

                            (Opinion filed: February 1, 2016)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Nathaniel Pitts appeals pro se from the District Court’s orders denying his motion




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
for the return of property under Fed. R. Crim. P. 41(g) and denying his motion for

reconsideration of that ruling. We will vacate the District Court’s orders and remand for

further proceedings.

                                             I.

       Pitts is serving a federal prison sentence imposed for various drug and weapons

convictions. See United States v. Pitts, 497 F. App’x 252 (3d Cir. 2012). At issue here is

a Rule 41(g) motion that Pitts filed seeking the return of various items of property that he

alleges the Government seized from his automobiles and his house. The property in

question consists of two cellular phones and $205 in currency allegedly seized from

Pitts’s GMC Envoy and the other property noted in the margin.1

       The Government responded with a declaration by Frank Costobile, who is a

Special Agent with the Drug Enforcement Administration (“DEA”). Agent Costobile

stated that he reviewed the DEA’s records and that, with the exception of a passport and

certain checks that the Government already had returned to Pitts’s girlfriend, the DEA

had no record of ever taking possession of any of the items sought by Pitts.

       The next day, and without giving Pitts an opportunity to reply to Agent

Costobile’s declaration or the Government’s response, the District Court denied Pitts’s

Rule 41(g) motion in a summary order that merely referenced them. Pitts later filed a

reply to the Government’s response along with a motion for reconsideration. Pitts


1
 The other items are an air pump, jumper cables, barber clippers with an apron, a
basketball, a gym bag with workout clothing, a tool set, an iPod, an additional $200 in
currency, a black leather jacket, dress shoes and an outfit, a DVD player, 20 DVDs, and
Pitts’s passport and check books.
                                             2
attached evidence suggesting that the Government may indeed have taken possession of

his two cellular phones and $205 in currency. After receiving Pitts’s reply, the

Government requested additional time to respond. The Government also notified the

District Court that “government counsel has requested DEA agents assigned to this case

to make further attempts to locate any of the defendant’s property and/or determine the

disposition of such property.” (ECF No. 161.)

       Rather than await the results of the Government’s investigation and the

Government’s response, the District Court denied Pitts’s motion for reconsideration the

following day. The District Court did so without acknowledging any of Pitts’s evidence

or the fact that the Government itself was continuing to investigate the matter. Pitts now

appeals pro se from the District Court’s orders.

                                            II.

       A Rule 41(g) motion for the return of property is an independent civil action for

equitable relief. See United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999)

(addressing former Rule 41(e)). If a defendant files such a motion after the conclusion of

criminal proceedings, the burden is on the Government to “demonstrate that it has a

legitimate reason to retain the property.” Id. at 377. “The burden on the government is

heavy because there is a presumption that the person from whom the property was taken

has a right to its return.” United States v. Albinson, 356 F.3d 278, 280 (3d Cir. 2004).

Thus, in addressing Rule 41(g) motions, the District Court generally must undertake at

least some inquiry into whether the Government retains possession of the property and

why. See Chambers, 192 F.3d at 377-78; see also Albinson, 356 F.3d at 281-82, 284 n.9

                                             3
(summarizing district courts’ obligations under Chambers and to pro se litigants); Fed. R.

Crim. P. 41(g) (providing that the District Court must “receive evidence on any factual

issue necessary to decide the motion”). We review the District Court’s resolution of such

motions for abuse of discretion. See Chambers, 192 F.3d at 376.2

       In this case, the District Court erred by failing to reconsider its order denying

Pitts’s motion because Pitts, who had no prior opportunity to respond to Agent

Costobile’s declaration, presented evidence calling that declaration into question and

raising factual issues that the District Court should have addressed. Indeed, the

Government itself appeared to recognize as much because it notified the District Court

that its investigation was continuing and requested an opportunity to file an additional

response. The District Court provided no explanation for instead summarily denying

reconsideration in the face of the Government’s request. If the District Court had awaited

the Government’s response, then it could and should have resolved factual disputes that

the parties raised and that are continuing even on appeal.

       For example, the Government initially relied on Agent Costobile’s declaration in

arguing that it never seized or possessed Pitts’s two cellular phones. On appeal, however,

the Government asserts that its continuing investigation has revealed that it does in fact

possess those cellular phones as Pitts alleged. That assertion both undermines the District

Court’s reliance on Agent Costobile’s declaration and gives rise to a separate factual


2
 Motions for reconsideration are appropriately filed in Rule 41(g) proceedings, see
United States v. Bein, 214 F.3d 408, 410, 416 (3d Cir. 2000), and we review the denial of
such motions for abuse of discretion as well, see Santini v. Fuentes, 795 F.3d 410, 416
(3d Cir. 2015). We have jurisdiction under 28 U.S.C. § 1291.
                                              4
issue. For the first time on appeal, the Government argues that it is permitted to retain

Pitts’s cellular phones for any evidentiary issues that may arise from his continued filings

in the District Court. Pitts argues in his reply brief that it is not necessary for the

Government to retain the cellular phones because an expert downloaded all of the

information from those phones and because the Government possesses that information

as well. Pitts also has attached evidence to that effect. Thus, whether the Government

has a legitimate reason to retain the two cellular phones that it now concedes it possesses

is a disputed factual issue that the District Court should resolve in the first instance.

       The parties’ filings reveal one other disputed factual issue as well. Pitts sought the

return of $205 in currency that he claims the Government seized, but the Government

argued on the basis of Agent Costobile’s declaration that it never seized the currency.

Pitts attached to his reply in the District Court an arrest report stating that a Police Officer

Brady seized the $205 that Pitts is seeking. The District Court did not address that

evidence, and the parties have raised additional factual issues concerning the $205 on

appeal. The Government argues on appeal that Officer Brady’s arrest report does not

show that the DEA itself took possession of the $205. Pitts counters with evidence in the

form of Officer Brady’s testimony at trial that he gave everything he recovered to a DEA

agent. Thus, Pitts’s request for the return of the $205 in currency also raises factual

issues that the District Court should resolve.

       We will remand for the District Court to address in the first instance these factual

issues and any others necessary to decide Pitts’s Rule 41(g) motion. In that regard, we

have held that “[t]he District Court must hold an evidentiary hearing on any disputed

                                                 5
issue of fact necessary to the resolution of the [Rule 41(g)] motion.” Chambers, 192 F.3d

at 378. We later clarified that Chambers does not require a hearing to resolve every

factual dispute and that “affidavits or documentary evidence, such as chain of custody

records, may be sufficient to support a fact finder’s determination” in an appropriate case.

Albinson, 356 F.3d at 282.

       We leave it to the District Court to determine whether a hearing is necessary or

whether such documentary evidence as has been or may be presented may prove

sufficient to resolve the parties’ factual disputes.

                                              III.

       For these reasons, we will vacate the District Court’s orders and remand for

further proceedings. We express no opinion on the merits of Pitts’s Rule 41(g) motion.




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