            Case: 19-12371   Date Filed: 03/12/2020   Page: 1 of 4



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12371
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:16-cr-00028-RH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MICHAEL RAY ALFORD,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (March 12, 2020)



Before GRANT, LUCK and BLACK, Circuit Judges.

PER CURIAM:
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       Michael Ray Alford, a federal prisoner, appeals pro se following the district

court’s denial of his post-judgment motion to return property and the denial of his

motion for reconsideration. Alford requests the return of his cellphone and address

book, which contained the usernames and passwords for various online accounts.

Alford contends he cannot access his internet accounts without these items, and so,

he was denied his constitutional right to access his medical, business, and financial

records. He asserts the inability to access these records will hinder his ability to

prepare a civil action regarding his need for medical treatment. After review,1 we

affirm the district court.

       When a motion for the return of property is filed after the close of all

criminal proceedings, we treat the motion as a civil action in equity. United States

v. Howell, 425 F.3d 971, 974 (11th Cir. 2005). Motions to return property are

governed by Federal Rule of Criminal Procedure 41(g), which provides:

       A person aggrieved by an unlawful search and seizure of property or by
       the deprivation of property may move for the property’s return. . . . If it
       grants the motion, the court must return the property to the movant, but
       may impose reasonable conditions to protect access to the property and
       its use in later proceedings.




       1
          We review questions of law dealing with a district court’s denial of a motion to return
property de novo and a district court’s factual findings dealing with such a denial for clear error.
United States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005). We review “the equitable equation
of the district court’s decision” to deny the motion only for abuse of discretion. United States v.
Machado, 465 F.3d 1301, 1307 (11th Cir. 2006), overruled on other grounds by United States v.
Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009).


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Fed. R. Crim. P. 41(g). The advisory committee explained this rule applies to

lawfully and unlawfully seized property, and once the government no longer has a

need to use the evidence, it should be returned. See id., Advisory Committee Note

to the 1989 Amendments. Because the court sits in equity, the property owner

must show a possessory interest in the seized property and “clean hands.” Howell,

425 F.3d at 974. When a property owner files a motion to return property after the

close of criminal proceedings, “‘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.’” United States v. Potes Ramirez,

260 F.3d 1310, 1314 (11th Cir. 2001) (quoting United States v. Chambers, 192

F.3d 374, 377 (3d Cir. 1999)).

      The Government has a legitimate need to retain the evidence until Alford

exhausts his post-conviction remedies because it would need the evidence at a new

trial if his motion to vacate is successful. See United States v. Mendez, 860 F.3d

1147, 1150 (8th Cir. 2017) (“The pendency of a direct appeal or a post-conviction

proceeding might justify the government’s further retention of property as potential

evidence in a criminal case.”); United States v. Pierre, 484 F.3d 75, 87 (1st Cir.

2007) (explaining a Rule 41(g) motion is properly denied if the government’s need

for the property as evidence continues). Even if Alford is not expressly relying on

the cellphone or address book to support the claims in his motion to vacate, if he



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ultimately receives a new trial, the Government will need to use those items as

evidence to connect him to the “michellecuty013” account. Moreover, despite

Alford’s assertions of actual innocence, Alford cannot claim to have “clean hands”

with respect to the cellphone and address book, both of which were connected to

an e-mail account that received child pornography.2 Furthermore, Alford is not

being deprived of any constitutional right to access his data because, as the district

court pointed out, his usernames and passwords can be recovered, and, as the

Government notes, he could request access to the cellphone and address book to

write down the login information. Therefore, the court did not abuse its discretion

in denying his motion to return property. Additionally, because he did not present

new evidence, the district court also properly denied Alford’s motion to reconsider.

See Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010)

(stating in the civil context, the only grounds for granting a Federal Rule of Civil

Procedure 59(e) motion to alter or amend a judgment are newly discovered

evidence or manifest errors of law or fact).

       Accordingly, we affirm.

       AFFIRMED.




       2
         Even if the district court incorrectly stated there was child pornography on the
cellphone, the cellphone was connected to an email account that received child pornography.


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