                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 00-7807
YITSCHAK EBERT,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                W. Earl Britt, Senior District Judge.
                          (CR-95-84-BR)

                       Argued: April 2, 2002

                      Decided: July 15, 2002

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.



Affirmed by unpublished per curiam opinion. Judge Niemeyer wrote
a dissenting opinion.


                            COUNSEL

ARGUED: David I. Schoen, Montgomery, Alabama, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee. ON BRIEF: John Stuart Bruce, United
States Attorney, Raleigh, North Carolina, for Appellee.
2                      UNITED STATES v. EBERT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Yitschak Ebert was convicted in 1996 in the Eastern District of
North Carolina for his role in a conspiracy to buy and sell stolen over-
the-counter drugs and health and beauty aids. He seeks the return of
office equipment and inventory seized in 1995 from his place of busi-
ness in the Eastern District of New York and currently held by the
government in North Carolina. Toward this end, he filed motions for
the return of the property under Fed. R. Crim. P. 41(e) in the Eastern
District of North Carolina on June 15 and June 20, 2000. Relying on
our decision in United States v. Garcia, 65 F.3d 17 (4th Cir. 1995),
the district court dismissed the motions without prejudice. The court
explained that because the motions had been filed after the conclusion
of Ebert’s criminal proceedings, the only proper venue for the
motions was the district of seizure, the Eastern District of New York.
Because we agree that Ebert did not seek the return of his office
equipment and inventory until after the conclusion of his criminal
proceedings in the Eastern District of North Carolina, we affirm the
district court’s order.

                                   I.

   On May 2, 1995, Ebert was arrested in the Eastern District of New
York in connection with a North Carolina investigation of a conspir-
acy to buy and sell stolen over-the-counter drugs and health and
beauty aids. In connection with Ebert’s arrest, the government
obtained a warrant from the United States District Court for the East-
ern District of New York and seized a Chemical Bank account con-
taining $20,192.66 that was registered in the name of Ebert’s
business, M & I Distributors, Inc. (M & I). The government also
seized inventory and office equipment (including computers, a copier,
and a shrink-wrapping machine) from M & I. The government trans-
ported the property seized from Ebert’s business in New York to the
                       UNITED STATES v. EBERT                       3
Eastern District of North Carolina, where it has been stored since
1995. Ebert and nine other defendants were indicted in the Eastern
District of North Carolina. On August 30, 1996, a jury convicted
Ebert of one count of conspiring to receive stolen property shipped in
interstate commerce and to launder money; he was also convicted on
several substantive counts. He was sentenced to 67 months of impris-
onment and 36 months of supervised release. The district court also
entered a forfeiture judgment against Ebert in the amount of
$100,000. On appeal we affirmed Ebert’s conspiracy conviction, but
vacated the convictions on the substantive counts because venue for
the trial of those counts was not proper in the Eastern District of
North Carolina. United States v. Ebert, 1999 WL 261590 (4th Cir.
May 3, 1999) (unpublished per curiam). We remanded for dismissal
of the vacated charges and for resentencing on the conspiracy count.
On remand the district court resentenced Ebert to 52 months in prison
and 36 months of supervised release. The amended judgment was
entered on October 28, 1999.

   On November 12, 1999, Ebert filed a Rule 41(e) motion with the
district court seeking the return of the funds the government had
seized from the account at Chemical Bank; his motion also sought
accrued interest and the return of a cost bond posted for the account
on October 13, 1995. The government consented to the return of the
funds, and the district court entered a December 10, 1999, order
directing the government to return the bank account funds, the cost
bond, and the accrued interest on both amounts.

   In March 2000 the government began efforts to dispose of docu-
ments and other property that had been gathered in the course of the
investigation and prosecution of Ebert and his co-defendants. The
government sent a letter to Ebert’s counsel on April 7, 2000, explain-
ing that it was holding computer equipment seized from M & I in
1995 and requesting that Ebert arrange for the pickup of these items.
In the course of further correspondence with government officials,
Ebert’s counsel learned that the government also retained possession
of a copier and a shrink-wrapping machine that had been seized from
M & I. On June 15, 2000, Ebert filed with the district court a "Motion
for Consideration of Outstanding Issues Concerning the Return of
Seized Property." In this motion Ebert asked the court to require the
government to provide a "full accounting of the disposition and status
4                      UNITED STATES v. EBERT
of any and all property seized from Mr. Ebert and/or M & I" and to
order the government to return all seized property that had not been
used to satisfy the $100,000 forfeiture judgment returned by the jury.1
Ebert alleged that the property wrongfully retained by the government
included "valuable office equipment, product far in excess of
$100,000 in value, and other items." In addition, Ebert asked the dis-
trict court to take up the question of whether he should be compen-
sated for the diminution in value of his office equipment during the
time it was retained by the government and for the value of any prop-
erty lost or destroyed by the government. Shortly after filing this
motion, Ebert’s attorney received a letter from the government advis-
ing him that it intended to dispose of Ebert’s property during the week
of June 26, 2000, if Ebert had not picked it up by that time. Ebert
responded by filing a "Motion to Prohibit the Government from Dis-
posing of Seized Property" on June 20, 2000. In that motion Ebert
argued that the government should not be allowed to dispose of his
property while his motion for an accounting was still pending. He fur-
ther argued that because the government had transported the seized
property from New York to North Carolina, the government should
also bear the expense of returning the property to his family in New
York. In its response the government contended that Ebert’s motions
were moot because the government stood ready to return the com-
puter equipment, the copier, and the shrink-wrapping machine as soon
as Ebert could make the necessary arrangements to retrieve these
items.

   The district court treated Ebert’s June 15 and June 20, 2000,
motions as Rule 41(e) motions for the return of seized property and
dismissed them without prejudice in a September 18, 2000, order. The
court first observed that the motions were not moot because Ebert
sought more than merely an offer to return the disputed office equip-
ment. It explained that Ebert had also requested "that the government
provide him with a full accounting of the property that is being held,
that it pay for the costs of transporting the property back to New
York, and [that it] compensate him for the diminished value of the
property." Nevertheless, the court concluded that under Garcia the
    1
   Apparently, Ebert has no records that would enable him to determine
what property the government seized from M & I and is therefore depen-
dent on the government to supply this information.
                        UNITED STATES v. EBERT                           5
motion could only be brought in the district where the property had
been seized (the Eastern District of New York) because "defendant’s
criminal proceedings in this court have concluded." Ebert appeals.

                                    II.

  Rule 41(e) provides:

     A person aggrieved by an unlawful search and seizure or by
     the deprivation of property may move the district court for
     the district in which the property was seized for the return
     of the property on the ground that such person is entitled to
     lawful possession of the property. . . . If a motion for return
     of property is made or comes on for hearing in the district
     of trial after an indictment or information is filed, it shall be
     treated also as a motion to suppress under Rule 12.

Fed. R. Crim. P. 41(e) (emphasis added). Here, Ebert seeks to recover
property lawfully seized but no longer needed by the government.
The question is whether venue for Ebert’s motions is proper in the
district of seizure, in the district of trial, or in both.

   Garcia provides the starting point for our analysis. In that case we
held that although a post-conviction motion for return of property is
a civil action, "Rule 41(e), with its district-of-seizure venue provision,
applies to all actions to recover property seized in connection with a
criminal investigation, notwithstanding their ‘civil’ nature." Garcia,
65 F.3d at 21. We explained that a motion for the return of property
may always be made in the district where the property was seized, but
added that venue for such a motion is also proper in the district of trial
during a "pending criminal proceeding." Id. at 20. In Garcia the
defendant had pled guilty to a drug offense in the Eastern District of
North Carolina in 1987 and was found in contempt by that court in
1988. See United States v. Garcia, 956 F.2d 41, 42-43 (4th Cir. 1992).
In 1994 he filed a Rule 41(e) motion in the Eastern District of North
Carolina for the return of property that had been seized in the South-
ern District of Florida and was still being stored there. On these facts,
we held that there was "no support, in the text of the rule or in policy,
for continuing a trial court’s ‘ancillary’ jurisdiction where . . . the
criminal proceeding has long since ended and the trial court exercises
6                        UNITED STATES v. EBERT
no control over the property." Garcia, 65 F.3d at 20. The question in
this case is whether Ebert’s criminal proceedings were still "pending"
under Garcia when Ebert filed his Rule 41(e) motions regarding the
office equipment and inventory seized from M & I. The answer
depends both on when Ebert filed the relevant Rule 41(e) motions and
on what it means for a criminal proceeding to be "pending."

   Ebert makes two different arguments that his criminal proceedings
were still pending when he moved for the return of his property under
Rule 41(e). The first argument is that his Rule 41(e) motion was filed
on November 12, 1999, and that his criminal proceedings were still
pending in the district court at that time because the court did not dis-
pose of the final motion regarding his resentencing until November
22, 1999. This argument depends on the claim that a criminal pro-
ceeding is pending under Garcia whenever any part of a criminal case
(including a remand for resentencing) is before the district court.
Although Ebert’s proposed definition of when a criminal proceeding
is pending may well have merit, his first argument fails because the
Rule 41(e) motion filed on November 12, 1999, concerned only the
funds seized from M & I’s account at Chemical Bank. In that motion
Ebert asked the court for an order "directing that the property more
particularly described below immediately be returned to the movant,
with accrued interest and bond money." The only property described
in the motion is the Chemical Bank account; no mention is made of
seized office equipment or inventory. The Rule 41(e) motions relating
to the office equipment and inventory still held by the government
were not made until June 2000, long after the sentencing proceedings
in the district court had ended.2 Accordingly, we conclude that even
    2
   Ebert argues that there was only one Rule 41(e) motion and that his
June motions regarding the seized inventory and office equipment were
simply continuations of that original motion. This reading of the relevant
motions is untenable. The November 12, 1999, motion was directed
solely to the Chemical Bank account and was effectively granted by the
district court’s December 10, 1999, order directing the government to
return the seized funds. Ebert’s first motions to address the property at
issue in this case were not filed until June 2000. Ebert is correct that only
the November 12, 1999, motion was captioned as a Rule 41(e) motion,
but the district court was correct to regard Ebert’s June 15 and 20
motions as Rule 41(e) motions. Indeed, the court had little choice in the
matter because we said in Garcia that "Rule 41(e) . . . applies to all
actions to recover property seized in connection with a criminal investi-
gation." Garcia, 65 F.3d at 21.
                         UNITED STATES v. EBERT                            7
if Ebert’s criminal proceedings were pending in the district court on
November 12, 1999, this would not be enough to show that venue in
the district of trial was proper for the Rule 41(e) motions relating to
the property at issue in this case.

   Ebert’s second argument urges us to adopt a much broader reading
of when a criminal proceeding is pending. In essence, Ebert argues
that a proceeding is pending under Garcia so long as it is pending in
some court on direct review. Here, this would mean that Ebert’s crim-
inal case was pending, and venue for his Rule 41(e) motion was
proper in the district of trial, until the Supreme Court’s October 1,
2001, denial of his petition for certiorari on issues related to his resen-
tencing. Ebert v. United States, 122 S. Ct. 78 (2001) (mem.). Such a
broad reading of what it means for a criminal proceeding to be pend-
ing has some force as a matter of policy. Indeed, by adopting that def-
inition, we would move our circuit’s position closer to that of the
Second, Eighth, and D.C. Circuits, all of which have held that a trial
court may exercise its ancillary jurisdiction to hear motions for the
return of property even after all criminal proceedings have ended. See
Thompson v. Covington, 47 F.3d 974, 975 (8th Cir. 1995); United
States v. Giovanelli, 998 F.2d 116, 118-19 (2d Cir. 1993); United
States v. Wilson, 540 F.2d 1100, 1102-04 (D.C. Cir. 1976). But see
Clymore v. United States, 164 F.3d 569, 574-75 (10th Cir. 1999)
(adopting our approach in Garcia). We conclude, however, that
Ebert’s second argument is incompatible with the reasoning we used
in Garcia. For example, the Garcia court reasoned that under Rule
41(e), venue is proper in the district of trial only during a "pending
criminal proceeding" because "that is the only possible forum for a
Rule 12 motion to suppress." Garcia, 65 F.3d at 20. This reasoning
raises a puzzle we need not address, but its clear implication is that
a "pending criminal proceeding" must at least be pending in the trial
court.3 Further, there is no indication in Garcia that proper venue for
  3
    Garcia raises a puzzle because it appears to equate a "pending crimi-
nal proceeding" with "the only possible forum for a Rule 12 motion to
suppress." If carried to its logical conclusion, this reasoning suggests that
venue in the district of trial would be proper only during pre-trial pro-
ceedings because a motion to suppress must be made prior to trial. See
Fed. R. Crim P. 12(b)(3). So far as we are aware, no court has ever given
so narrow a reading to Rule 41(e)’s language regarding venue in the dis-
trict of trial.
8                       UNITED STATES v. EBERT
a Rule 41(e) motion depends on the status of the criminal case on
appeal, nor are we aware of any case in any other jurisdiction that
makes venue for a Rule 41(e) motion turn on whether the defendant’s
criminal case is still alive on direct review. Although Garcia leaves
open some questions about when a proceeding is pending, we think
that it has foreclosed the reading advanced by Ebert. At most, Garcia
allows Rule 41(e) motions to be made in the district of trial while
criminal proceedings are pending in that court. We therefore conclude
that Ebert’s second argument also fails. The district court correctly
ruled that venue for Ebert’s Rule 41(e) motions was proper only in
the district of seizure.

   We reach this result with some reluctance. From a policy stand-
point, the facts of this case all point toward the conclusion that venue
in the trial court should be proper. The trial court is far more familiar
with the facts of the case than any court in New York, the property
in dispute has long been stored in North Carolina, the government
attorneys are in North Carolina, and Ebert wishes to litigate the
motion in North Carolina. In short, all the relevant policy values —
accurate fact-finding, judicial economy, the convenience of the gov-
ernment attorneys, and fairness to the defendant — suggest that
Ebert’s Rule 41(e) motions would best be heard in North Carolina. In
contrast, we are aware of no relevant policies that are served by insist-
ing that venue is proper only in the district of seizure.4 Nevertheless,
Garcia remains the binding law of this circuit, and we believe it dic-
tates the conclusion that Ebert’s Rule 41(e) motions regarding the
office equipment and inventory seized from M & I could be made
only in the district of seizure. We therefore affirm the district court’s
order dismissing those motions without prejudice.

                                                            AFFIRMED

    4
   Because a party’s right to a particular venue may be waived, the gov-
ernment could simply have consented to allow Ebert’s Rule 41(e)
motions to be heard in the Eastern District of North Carolina. While the
government has the right under Garcia to insist that the motions be made
in the district of seizure, we do not see how its insistence in this case
served any legitimate government purpose.
                        UNITED STATES v. EBERT                           9
NIEMEYER, Circuit Judge, dissenting:

   Two weeks after Yitschak Ebert was sentenced in this case in the
Eastern District of North Carolina, he filed a motion in the same court
to obtain return of his property seized when he was arrested. The
property, which had been seized in the Southern District of New
York, was being stored in the Eastern District of North Carolina,
where Ebert was tried. Ebert brought his motion for return of his
property under Federal Rule of Criminal Procedure 41(e).

   Rule 41(e) provides that a motion for return of property may be
filed in the district in which the property was seized. It provides fur-
ther, "If a motion for return of property is made or comes on for hear-
ing in the district of trial after an indictment or information is filed,
it shall be treated also as a motion to suppress under Rule 12." Fed.
R. Crim. P. 41(e) (emphasis added). These provisions establish that
a motion under Rule 41(e) need not always be filed in the district of
seizure but may also be filed in the district of trial. Of course if a
motion is filed in the district of trial after an indictment or information
is filed, it is to be treated as a motion to suppress. Thus, applying the
plain language of Rule 41(e), the motion in this case could have been
filed in either the Southern District of New York or the Eastern Dis-
trict of North Carolina.

   However, in United States v. Garcia, 65 F.3d 17 (4th Cir. 1995),
we noted, as a matter of practicality and convenience, that a Rule
41(e) motion may be filed in the district of trial only during a "pend-
ing criminal proceeding." Id. at 20. And we held in that case that
because the criminal proceeding had "long since ended" and the trial
court no longer exercised "control over the property," the Rule 41(e)
motion should have been filed in the venue where the property was
seized. Id.

   But this case is quite distinct from the circumstances in Garcia.
Here, the trial was not "long since ended" and the district court did
have control over the property. Ebert had just been sentenced two
weeks earlier, and his case was still pending, as it was on appeal. The
property was located in the Eastern District of North Carolina, and the
district court there would be the court most informed about its proper
disposition.
10                     UNITED STATES v. EBERT
    It serves no useful principle — except perhaps the impracticality
of deep bureaucracy — to now require Ebert to go back to New York
to file his motion only to have the attorneys there consult the United
States Attorneys and other court officials in the Eastern District of
North Carolina with respect to the proper disposition of the motion.
In ruling that Ebert must go to New York, the majority reads Garcia
with the hard hand justified only in applying jurisdictional jurispru-
dence, not that called for when applying an optional venue principle.
It is thus understandable that the majority found itself somewhat puz-
zled by the holding in Garcia, ante at 7-8, and that it sent Ebert to
New York "with some reluctance," ante at 8.

   Without the regrets expressed by the majority, I would readily
reverse.
