                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3862
                                    ___________

Freddie Ross,                            *
                                         *
             Appellant,                  *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
United States of America,                * District of Minnesota.
                                         * [UNPUBLISHED]
             Appellee.                   *
                                    ___________

                          Submitted: May 1, 2002

                               Filed: May 6, 2002
                                    ___________

Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

      Freddie Ross appeals the district court’s denial of his motion under Federal
Rule of Criminal Procedure 41(e) for return of seized property. The court denied his
motion without a hearing and without a response from the government. For the
reasons stated below, we reverse.

      First, the district court incorrectly concluded that Ross could not bring the
motion after having been convicted. See Thompson v. Covington, 47 F.3d 974, 975
(8th Cir. 1995) (per curiam) (“Post-conviction filings for the return of property seized
in connection with a criminal case are treated as civil equitable actions, and the
district court where the claimant was tried has subject-matter jurisdiction ancillary to
its criminal jurisdiction to hear the equitable action.”).

       Second, the arguments advanced by the government on appeal--that Ross lacks
standing as to one seizure, and that state authorities were responsible for the other
seizure--are disputed by Ross and cannot be resolved on the basis of the existing
record. The district court must conduct an evidentiary hearing to resolve the issues
of material fact that are contested by the parties. See Fed. R. Crim. P. 41(e) (“The
court shall receive evidence on any issue of fact necessary to the decision of the
motion.”); see, e.g., Ball v. United States, 193 F.3d 998, 999-1000 (8th Cir. 1999)
(per curiam) (district court erred by failing to take evidence before concluding that
state rather than federal authorities were responsible for seizure).

     Accordingly, the judgment of the district court is reversed, and the case is
remanded for further proceedings consistent with this opinion.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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