                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-1454
                                    ___________

Rickey L. Jackson,                       *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Missouri.
United States of America,                *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: December 13, 2007
                                 Filed: May 21, 2008
                                  ___________

Before RILEY, COLLOTON, and BENTON, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

       Rickey L. Jackson appeals the district court’s (partial) denial of his motion for
return of property under Federal Rule of Criminal Procedure 41(g). Having
jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and
remands.

      On May 22, 1998, federal and state agents arrested Jackson with a federal
warrant. He was driving a Ford Expedition equipped with post-factory stereo\video
equipment and wheel rims. From his person, officers seized a gold bracelet, a Nike
cap, two driver’s licenses, two pagers, two shoestrings, and $1,510 in cash. The
vehicle was towed to a private lot, where clothing, a Nintendo 64, compact discs, and
$7,000 were discovered inside.

      The Expedition was leased by Ford Motor Company to Cameka Tousant,
Jackson’s girlfriend. On June 2, 1998, the clothing was released to Tousant’s
grandmother and “representative.” On June 11, 1998, upon default of the lease, Ford
repossessed the Expedition. Before the repossession, some of the stereo\video
equipment was stolen. Tousant received insurance proceeds for the loss.

      Jackson was convicted of drug-related offenses and sentenced to life
imprisonment. Pictures of the Expedition, stereo\video equipment, and wheel rims
were introduced at trial. The pagers were introduced as well, and then delivered to
Jackson.

       After trial, in 2003, Jackson filed the motion for return of property seized at the
time of arrest. After an evidentiary hearing, the district court denied some of
Jackson’s claims, finding that the $8,510 currency was lawfully forfeited, the clothing
was lawfully transferred, and that Jackson had abandoned any claims to the
stereo\video equipment, wheel rims, and Nintendo. The district court ruled, however,
that Jackson was entitled to the gold bracelet, Nike cap, licenses, and shoestrings –
totaling about $18,552.00 – but that they were either lost or unlawfully appropriated
by the government. Finding no jurisdiction to award money damages, the district
court severed the meritorious claims and transferred them to the Court of Federal
Claims. See United States v. Hall, 269 F.3d 940, 943 (8th Cir. 2001); 28 U.S.C. §
1346(a)(2). The Court of Federal Claims dismissed the action as premature. See 28
U.S.C. § 1292(d)(4)(B). Jackson appeals, seeking a declaration that he is entitled to
possession of the stereo\video equipment, clothing, and wheel rims.

      This court reviews “the district court’s legal conclusions de novo and its
findings of fact for clear error.” United States v. Felici, 208 F.3d 667, 669-70 (8th

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Cir. 2000). Rule 41(g) authorizes a person whose property is seized by the
government to petition the district court for its return. See Fed. R. Crim. P. 41(g).1
The movant must establish lawful entitlement to the property. See United States v.
Clymore, 245 F.3d 1195, 1201 (10th Cir. 2001) (per curiam). The court should afford
the movant an opportunity to meet this burden, which may include, but does not
require, an evidentiary hearing. Felici, 208 F.3d at 670. This burden is often satisfied
by showing that the property was seized from the movant’s possession, as a person
from whom property is seized is presumed to have a right to its return. See Bailey v.
United States, 508 F.3d 736, 739 (5th Cir. 2007); United States v. Kaczynski, 416
F.3d 971, 974 (9th Cir. 2005); United States v. Potes Ramirez, 260 F.3d 1310, 1314
(11th Cir. 2001); United States v. Chambers, 192 F.3d 374, 377 (3rd Cir. 1999).

       The government must then establish a legitimate reason to retain the property,
which may be satisfied by showing a cognizable claim of ownership or right to
possession adverse to the movant’s. See Kaczynski, 416 F.3d at 974; Chambers, 192
F.3d at 377. A Rule 41(g) motion “is properly denied if the defendant is not entitled
to lawful possession of the seized property, the property is contraband or subject to
forfeiture or the government’s need for the property as evidence continues.” United
States v. Vanhorn, 296 F.3d 713, 719 (8th Cir. 2002) (internal quotation marks and
citation omitted).

       Jackson asserts that the district court erred in determining that he was not
entitled to the stereo\video equipment, clothing, and wheel rims. Because the property
was seized from Jackson’s possession, he satisfied his initial burden and is presumed
to have a right to its return unless the government can show a legitimate reason
otherwise.


      1
       On December 1, 2002, Rule 41(e) was redesignated Rule 41(g) without
substantive changes. See Fed. R. Crim. P. 41 Advisory Committee Note to the
2002 amendments. This opinion refers to the rule as 41(g).

                                          -3-
       The government met its burden as to the stereo\video equipment. The purchase
receipts were in the name of Tousant, and when part of it was stolen, she filed an
insurance claim and recovered for the loss. This evidence is sufficient to prove that
Tousant had a claim of ownership adverse to that of Jackson. The judgment of the
district court regarding the stereo\video equipment is affirmed.

       As to the clothing, the government also met its burden. The district court found
“that at the time of his arrest, there was clothing seized from the Expedition which has
not been returned to Jackson, but was released to Mary Tousant, grandmother of
Cameka Tousant, lessee of the Ford Expedition,” and “Mary Tousant, acting on behalf
of Cameka Tousant, lessee of the 1997 Ford Expedition, signed a receipt for the
clothing.” The receipts for the clothing state the purpose as: “Return to Owner/Mary
Tousant.” This phrasing – commonly used in the abbreviation “c/o” for “in care of”
– means “temporary charge.” Webster’s Third New International Dictionary 338
(Philip Babcock Gove et al. eds., 1961). This evidence is sufficient to prove that
Tousant, acting through her grandmother, asserted a claim of ownership adverse to
that of Jackson. The judgment of the district court regarding the clothing is affirmed.

      As for the wheel rims, the government did not satisfy its burden. In addition
to proving the wheel rims were seized from his possession, Jackson introduced
evidence that he purchased them and installed them on the Expedition. The district
court relied on an abandonment theory. “Abandonment is the voluntary
relinquishment of ownership so that the property ceases to be the property of any
person and becomes the subject of appropriation by the first taker. Abandonment of
property requires intent plus an act.” Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo.
Ct. App. 1989) (internal citation omitted). Here, there was no act of voluntary
relinquishment. The property was seized from Jackson and shortly transferred to
Ford. The district court reasoned that Jackson acted by placing the wheel rims on a
vehicle leased by Tousant. However, this did not manifest “a conscious purpose and



                                          -4-
intention of [Jackson] neither to use nor to retake the property into his possession.”
Id. Jackson was using and possessing the wheel rims at the time they were seized.

      On appeal, the government additionally claims that Jackson had no rights to the
wheel rims because he either gave them to Tousant or attached them to the Expedition.
The government offered no evidence that Jackson intended to gift the wheel rims to
Tousant. See Clippard v. Pfefferkorn, 168 S.W.3d 616, 618 (Mo. Ct. App. 2005)
(essential element of an inter vivos gift is the donor’s present intent to make a gift).
Moreover, in Missouri, “an accessory to an automobile does not become an integral
permanent part of the automobile by being attached thereto.” Goodrich Silvertown
Stores v. Brashear Freight Lines, Inc., 198 S.W.2d 357, 361 (Mo. Ct. App. 1946).
The doctrine of accession does not cover this situation.

       On this record, Jackson is entitled to the return of the wheel rims. The
government does not have possession of them. While Rule 41(g) waives sovereign
immunity to allow the return of property, sovereign immunity is not waived to allow
monetary damages. Hall, 269 F.3d at 943. However, another statute, such as the
Tucker Act, 28 U.S.C. § 1491, the Little Tucker Act, 28 U.S.C. § 1346(a)(2), and the
Federal Tort Claims Act, 28 U.S.C. §§ 2671-81, may waive sovereign immunity to
permit money damages. Id. This is a matter for remand. The district court “should
grant the movant . . . an opportunity to assert an alternative claim for money damages.
The court also retains equitable jurisdiction under Rule 41[g] to resolve issues of fact
that may help to determine whether such an alternative claim is cognizable.” Id.

     The judgment of the district court is affirmed in part, reversed in part, and
remanded.
                   ______________________________




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