                Case: 16-15632   Date Filed: 08/09/2017    Page: 1 of 9


                                                               [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 16-15632
                              Non-Argument Calendar
                            ________________________

                    D.C. Docket No. 8:14-cr-00123-CEH-MAP-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff - Appellee,

versus

JAMES LEE COBB, III,

                                                              Defendant - Appellant.

                            ________________________

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

                                  (August 9, 2017)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:

         Defendant James Lee Cobb, III (“Defendant”), proceeding pro se, appeals

the district court’s denial of his motion under Fed. R. Crim. P. 41(g) for the return
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of property seized during the investigation of his underlying criminal case.

Concluding that the district court did not err in denying Defendant’s motion, we

affirm.

I.        BACKGROUND

          In December 2014, Defendant pled guilty without a plea agreement to

various criminal charges related to wire fraud, identity theft, and unlawful

possession of a firearm. Although the superseding indictment contained forfeiture

provisions, these provisions did not cover the items at issue in this appeal. The

court sentenced Defendant to 324 months’ imprisonment and five years of

supervised release.

          After his sentencing, Cobb filed a motion under Fed. R. Crim. P. 41(g)1 for

return of property confiscated during a search of his home. He sought the return of

five vehicles,2 two flat-screen televisions, three pieces of white-gold jewelry, and

two pieces of yellow-gold jewelry. He argued that the confiscated property was


1
     Rule 41(g) reads:

          Motion to Return 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.
2
 The five vehicles listed were a 2007 Chevy Silverado, a 1988 Nissan Sentra, a 2005 Kawasaki
Ninja ZX 10, a 2005 Cadillac XLR, and a 2002 Ford Focus.


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not relevant to his criminal case and thus was seized in violation of his Fourth and

Fourteenth Amendment rights.

       In its initial reply to Defendant’s motion, the Government argued, among

other things, that returning Defendant’s property would be premature, as

Defendant was appealing his criminal conviction. The Government noted it would

need to maintain all existing evidence in the event Defendant’s appeal succeeded.

If Defendant’s conviction was affirmed, the Government would then consider

whether to return any property it possessed. 3 Alternatively, the Government

observed that the personal property could properly be used to help satisfy part of

the $1.8 million in restitution previously ordered by the district court. In a

supplemental response filed two days later, the Government advised that it had

learned that the federal government did not have possession of any of the five

vehicles whose return was sought by Defendant in his motion and that the City of

Tampa, having earlier released some of the vehicles, was in the process of

auctioning off any remaining vehicles.4 The Government attached portions of a

report from the Tampa Police Department indicating that the Department had


3
  This Court affirmed Defendant’s convictions and sentences in his direct appeal several months
after his Rule 41(g) motion was denied. See United States v. Cobb, 842 F.3d 1213, 1215 (11th
Cir. 2016).
4
 The Tampa Police Department had worked with the federal government in the investigation of
Defendant and it was purportedly the entity that had custody of vehicles listed in Defendant’s
motion.


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seized the televisions and vehicles listed in Defendant’s motion. The records

further indicated two of the vehicles purportedly owned by Defendant—a 1988

Nissan Sentra and a 2005 Kawasaki Ninja ZX 10—had been authorized for release

by Sharla Canfield, a detective with the Tampa Police Department, though the

records did not indicate to whom the vehicles were released. The remaining three

vehicles had either already been auctioned or were scheduled to be auctioned a

week after the Government filed its supplemental response.

       In a second supplemental response, the Government noted that the yellow-

gold jewelry referenced in Defendant’s motion was never seized by law

enforcement, and included an affidavit from Canfield so testifying. The

Government also included an affidavit from IRS special agent Glenn Hayag, who

testified as well that the yellow-gold jewelry was not seized and that the

Government was still holding the white-gold jewelry for evidence. Over

Defendant’s objection, 5 the district court adopted the magistrate judge’s Report

and Recommendation, and denied Defendant’s motion.

       Defendant appeals the district court’s denial of his motion. In his appellate

brief, Defendant addresses only the vehicles that were auctioned or released, so we


5
  Defendant argued that his property was seized without a valid warrant, that the federal
government did not have jurisdiction to hold the property and did not need to continue to hold it,
and that the federal government and the Tampa Police Department had conspired to steal his
property. He did not discuss, however, the impact of the release and auction of his vehicles on
the viability of his Rule 41(g) motion.


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affirm the district court’s denial of Defendant’s motion as to the jewelry and

televisions. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81

(11th Cir. 2014) (collecting cases from this Circuit holding that arguments or

claims not raised in an opening brief are abandoned). We now turn to Defendant’s

claims regarding the vehicles.

II.   DISCUSSION

      A.     Whether the District Court Properly Denied Defendant’s Rule
             41(g) Motion

      The district court held that Rule 41(g) does not provide relief for Defendant

because the federal government was not in possession of any of the vehicles. A

district court’s conclusions of law in denying a motion for return of seized property

are reviewed de novo, and factual findings are reviewed for clear error. United

States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005). The ultimate decision of

whether to deny a Rule 41(g) motion is reviewed under the abuse of discretion

standard. United States v. De La Mata, 535 F.3d 1267, 1279 (11th Cir. 2008).

      When an individual moves for return of his property under Rule 41(g) after

the close of criminal proceedings, the motion is treated as a civil action in equity.

Howell, 425 F.3d at 974. To prevail, he must show a possessory interest in the

property seized and that he has “clean hands.” Id. The court can deny a motion if

the Government claims it no longer possesses the property, provided the



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Government provides some evidence to support that claim. See United States v.

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

       Defendant argues on appeal that the district court erred in denying his

motion because the vehicles had not been properly released or sold. Defendant

asserts that there is no evidence in the record that a court authorized the auction of

the three vehicles that were sold, nor that a Florida state court had jurisdiction to

order the distribution of federal evidence. Defendant also argues that the Sentra

and Ninja were improperly released because he, as the vehicles’ owner, never

authorized anyone to take possession of them.

       As far as we can determine, none of the five vehicles at issue were ordered

forfeited by a state or federal court as part of Defendant’s criminal conviction. For

that reason, we understand Defendant’s frustration at what he claims was the

absence of any meaningful notice to him6 that the Tampa Police Department was

releasing these vehicles and the absence of any meaningful opportunity to contest

their release or sale. Nevertheless, we cannot order the federal government to

return something that it does not possess. And there seems to be no dispute that it

was the Tampa Police Department, not the federal government, that exercised



6
  Defendant acknowledges that the Department sent out notices of the impending auction, but
argues that because those notices were sent to his home address, at a time when he was in federal
custody, he did not receive them.


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custody over the vehicles, released the vehicles to persons it deemed authorized to

possess them, and auctioned the remaining vehicles.

      As the United States cannot return something it does not have, the court

cannot order it to return to Defendant the vehicles listed in the motion. While this

alone might not necessarily leave Defendant without a remedy, see Potes Ramirez,

260 F.3d at 1314–15 (noting that a district court can exercise equitable jurisdiction

over a motion to return property even if the court determines that the federal

government has destroyed the property), Defendant has made no argument that it

was the federal government, as opposed to the Tampa Police Department, that

released and/or auctioned the vehicles.

      B.     Whether an Evidentiary Hearing was Required

      Defendant also argues that the district court erred by not holding an

evidentiary hearing. Defendant states that an evidentiary hearing would give him

an opportunity to address the allegedly conflicting evidence as to the Tampa Police

Department’s authority to release or auction the vehicles, the Tampa Police

Department’s various failures to notify Defendant and his defense counsel

concerning the impending auction, and the validity of documents provided by the

Tampa Police Department.

      A district court’s denial of an evidentiary hearing is reviewed for abuse of

discretion. See Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). In


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reviewing a Rule 41(g) motion, “[t]he court must receive evidence on any factual

issue necessary to decide the motion.” Fed. R. Crim. P. 41(g). The movant is

presumed to have a right to an item’s return, so the Government must demonstrate

it has a legitimate reason to retain the property. Potes Ramirez, 260 F.3d at 1314

(quoting United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999)). The

district court has discretion to determine whether the Government has made the

necessary showing. Id. (“We leave it to the district court’s discretion on remand to

determine how the government should present evidence of the property’s

destruction.”).

      Defendant’s reliance on Potes Ramirez in arguing for an evidentiary hearing

is misplaced. In Potes Ramirez, the Government pointed to no evidence in the

record and offered no verification of or support for its claim that the property being

sought was no longer in its custody. Id. Here, in contrast, the Government

presented evidence confirming that the items Defendant seeks were not in its

possession; Defendant has not disputed that evidence.

      Accordingly, the district court did not abuse its discretion by refusing to hold

an evidentiary hearing in this case.




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III.   CONCLUSION

       For the above reasons, we conclude the district court properly denied

Defendant’s Rule 41(g) motion for the return of his property, and its order is

AFFIRMED.




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