     Case: 13-30703      Document: 00512603006         Page: 1    Date Filed: 04/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit

                                                                                       FILED
                                    No. 13-30703                                   April 21, 2014
                                  Summary Calendar
                                                                                  Lyle W. Cayce
                                                                                       Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

NDEM ODUU,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CR-127


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Ndem Oduu, federal prisoner # 05855-095, appeals the district court’s
denial of his motion for the return of property, which he filed pursuant to Rule
41(g) of the Federal Rules of Criminal Procedure. The district court denied the
motion after finding that the Government had already returned all property
belonging to Oduu in its possession.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-30703     Document: 00512603006     Page: 2   Date Filed: 04/21/2014


                                  No. 13-30703

                                        I.
      In September 2011, officers with the Denham Springs Police Department
stopped a rental car driven by Ndem Oduu for speeding. After obtaining
Oduu’s consent to search the car, the officers found, inter alia, four counterfeit
driver’s licenses; 22 prepaid debit cards; an Acer Aspire One laptop computer;
an Iomega external hard drive; lists containing the names, dates of birth, social
security numbers, and addresses of about 97 individuals; and $3,557.76 in
cash. The officers arrested Oduu.
      The officers contacted Jacquelyn Norris, a special agent with the United
States Secret Service.     Norris met the officers, examined the evidence
recovered during the traffic stop, and interviewed Oduu.
      In October 2011, a federal grand jury charged Oduu with possession of
15 or more unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3)
(count one) and identity theft in violation of 18 U.S.C. § 1028(a)(7) (count two).
The indictment also contained a forfeiture allegation, which indicated that
Oduu would forfeit “any personal property used or intended to be used to
commit the offense . . . and property constituting, or derived from, proceeds the
defendant obtained, directly or indirectly, as the result of” the offense.
      Oduu eventually pleaded guilty to count one pursuant to a written plea
agreement.    In his plea agreement, Oduu waived his right to appeal his
conviction and sentence, reserving only his right to (1) appeal any punishment
that (a) exceeded the statutory maximum, (b) constituted an upward departure
pursuant to the Guidelines, or (c) was above the Guidelines range calculated
by the court, and (2) bring an ineffective assistance claim. Oduu also agreed
to forfeit (1) all funds contained in accounts associated with the 22 prepaid
debit cards, including but not limited to $27,144.02 that had been seized
pursuant to a warrant; (2) the Acer Aspire One laptop computer; and (3) the



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                                       No. 13-30703

Iomega external hard drive. Oduu waived his right to appeal or collaterally
challenge the forfeiture.
      The district court sentenced Oduu to 51 months in prison, which was at
the top of his advisory Guidelines range of imprisonment, and two years of
supervised release. Oduu timely appealed.
      While his appeal was pending, Oduu filed a second pro se Rule 41(g)
motion for the return of personal property not subject to forfeiture.
Specifically, Oduu requested that the Government return $3555.70 in cash, a
driver’s license, school books, passports, clothing, and other personal items
that were in his rental car when he was arrested. The Government responded
to Oduu’s motion, asserting that it did not possess the personal property Oduu
was seeking to have returned. The Government explained that it had seized
only the property which was subject to forfeiture and that the Denham Springs
Police Department might have the remainder of Oduu’s property since it had
impounded Oduu’s rental car. However, the Government did admit that it had
found within its possession Oduu’s driver’s license, and stated that it had
mailed the driver’s license to him.
      The district court denied Oduu’s motion since the Government had
“returned all property of [Oduu] that it ever had in [its] possession.” The next
day, the district court received Oduu’s reply to the Government’s response. In
his reply, Oduu conceded that the Denham Springs Police Department had his
cash. He maintained, however, that the Secret Service had seized all of his
other property. Oduu timely appealed the district court’s denial of his motion.
      We subsequently affirmed Oduu’s conviction and sentence. 1




      1   United States v. Oduu, No. 12-30943, 2013 WL 4866317 (5th Cir. Sept. 13, 2013).


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                                            II.
       Oduu argues that the district court erred in denying his Rule 41(g)
motion. He contends that the Government’s response to his first motion (i.e.,
that it would advise him how to retrieve any property it may have) indicates
that the Government has his property.
       The Government has moved for summary affirmance, contending that
no error occurred. The Government contends that although Agent Norris
seized the property Oduu used to commit the offense of conviction, she did not
seize the property Oduu is seeking to have returned.                   The Government
alternatively argues that Oduu’s appeal is barred by the appeal waivers in his
plea agreement.
       In his reply, Oduu argues that the district court erred in relying on the
Government’s bare assertion that it did not possess the property. He also
contends that the appeal waivers are inapplicable since he is seeking the
return of properties not subject to forfeiture.
       Summary affirmance is proper when “time is truly of the essence or
where the position of one of the parties is clearly right as a matter of law so
that there can be no substantial question as to the outcome of the case.” 2 The
summary affirmance procedure is generally reserved for cases in which the
parties concede that the issues are foreclosed by circuit precedent. 3 Oduu does
not concede that his argument is foreclosed, and the Government has failed to
identify controlling authority foreclosing Oduu’s argument. Thus, we DENY
the motion for summary affirmance. 4


       2 United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir.
2006) (internal quotation marks and citation omitted).
       3 See, e.g., United States v. Ortiz-Grajeda, 95 F. App’x 589, 590 (5th Cir. 2004) (per

curiam).
       4 See Holy Land Found. for Relief & Dev., 445 F.3d at 781; see also United States v.

Godfrey, 449 F. App’x 383, 383 (5th Cir. 2011) (per curiam) (“Because the Government has


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                                       No. 13-30703

       However, we DISPENSE with further briefing as the Government’s
motion and Oduu’s response adequately address the parties’ positions.
       A person whose property has been seized by the government may file a
motion under Federal Rule of Criminal Procedure 41(g), formerly codified in
Rule 41(e), 5 for the return of the property:

              A person aggrieved by an unlawful search and seizure
              of property or by the deprivation of property may move
              for the property's return. The motion must be filed in
              the district where the property was seized. The court
              must receive evidence on any factual issue necessary
              to decide the motion. 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. 6

We review de novo a district court’s interpretation of Rule 41(g), and review
factual determinations concerning ownership or lawful possession for clear
error. 7
       Here, both parties disputed at the district court whether the Government
ever possessed the non-forfeited property that Oduu seeks. A finding that the
government actually possesses the property sought is a necessary predicate to
the resolution of a Rule 41(g) motion. 8
       The real question presented here is which party bears the evidentiary
burden under a Rule 41(g) motion? “If a motion for return of property is made
while a criminal prosecution is pending, the burden is on the movant to show



failed to point to controlling authority from this circuit or the Supreme Court that forecloses
[the defendant’s] claim, summary affirmance is inappropriate.”).
        5 United States v. Robinson, 434 F.3d 357, 360 n.2 (5th Cir. 2005).
        6 Fed. R. Crim. P. 41(g).
        7 United States v. Dean, 100 F.3d 19, 20 (5th Cir. 1996) (per curiam) (post-conviction

proceeding for return of property pursuant to former Rule 41(e)).
        8 Bailey v. United States, 508 F.3d 736, 739 (5th Cir. 2007).




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                                      No. 13-30703

that he or she is entitled to the property.” 9 But when criminal proceedings have
ended, that burden shifts to the Government. 10 Hence, “[a] criminal defendant
is presumed to have the right to return of his property once it is no longer
needed as evidence.” 11 Indeed, the termination of criminal proceedings does
not simply shift the burden but also changes how we deal with Rule 41(g)
motions in general. When a defendant files a Rule 41(g) motion after the
criminal proceedings have concluded, we treat the motion as a civil action
under 28 U.S.C. § 1331 and treat the district court’s denial of that motion as a
grant of summary judgment in favor of the government. 12
       Here, Oduu filed his Rule 41(g) motion while his direct criminal appeal
was pending. Therefore, criminal proceedings had not yet ended, and he had
to bear the burden. In his district court pleadings, Oduu asserted that the
Government was in possession of the property he was seeking to recover. He
failed, however, to offer any evidence in support of his assertion.                 In his
appellate brief, Oduu again fails to offer any evidence in support of his
assertion that the Government is in possession of his property. Oduu’s reliance
of the Government’s conditional response to his first motion (i.e., that it would
return whatever non-forfeited property it may have) is unavailing as it clearly
does not indicate that any such property even existed.
       Oduu’s argument that it was error for the district court to rely on the
Government’s bare assertion fails to persuade. It is true that our sister courts
have remanded for fact-finding in cases where in the face of a Rule 41(g) motion
the government contended that the property had already been destroyed. 13


       9United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999).
       10Id.
      11 Dean, 100 F.3d at 20.
      12 See Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000).
      13 United States v. Cardona-Sandoval, 518 F.3d 13, 15–18 (1st Cir. 2008) (per curiam);

United States v. Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001).


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                                      No. 13-30703

However, in those cases, the government’s bare assertion was not enough
because the government had to bear the burden. 14 That is not the case here.
      Accordingly, Oduu has failed to show that the district court erred in
denying his motion. The district court’s decision is AFFIRMED.




      14   Cardona-Sandoval, 518 F.3d at 15–18; Potes Ramirez, 260 F.3d at 1314.


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