                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1393
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Tracey Allen McGhghy,                   *
                                        *      [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: February 3, 2005
                                Filed: February 10, 2005
                                 ___________

Before WOLLMAN, BYE and RILEY, Circuit Judges.
                          ___________

PER CURIAM.

       In February 2002 Tracey Allen McGhghy (McGhghy) filed a Federal Rule of
Criminal Procedure 41(e) motion for the return of property. He alleged that his
personal property (including musical and recording equipment, sports card collection,
tools and chest, antiques, and books) was seized on November 22, 1996, when the
government executed a search warrant on his rental storage unit and then locked the
unit (containing the subject property) and draped yellow evidence tape across it; and
that the government had failed to inventory and appraise the property and give him
notice of the seizure. The government eventually responded that it never had
possession of the listed property, that a Jones County Sheriff said some property was
left in McGhghy’s storage unit after the search and seizure, and that the storage
facility owner said the remaining property was taken to a landfill after some time.

       The district court denied McGhghy’s Rule 41(e) motion, finding that he had
failed to submit any evidence that the government had seized or possessed the subject
property. McGhghy moved for reconsideration and requested an evidentiary hearing,
but the district court denied reconsideration. The court also denied McGhghy’s
motions for judgment on the pleadings, for entry of default, to strike, and for entry of
default judgment. On appeal McGhghy argues, inter alia, that the court erred in
denying his Rule 41(e) motion without granting him an evidentiary hearing. The
government responds that it never seized or possessed the property.

       We conclude that the record is unclear as to what happened to McGhghy’s
property after the search of the storage unit, who has custody of the property, and
whether the property has been destroyed. Because there are unresolved factual issues,
and because Rule 41(e) generally requires the district court to conduct an evidentiary
hearing, we conclude remand for an evidentiary hearing is warranted in this case. See
Ball v. United States, 193 F.3d 998, 1000 (8th Cir. 1999) (per curiam) (reversing and
remanding where court improperly denied motion for return of seized property
without receiving evidence to determine who had custody of property); United States
v. Burton, 167 F.3d 410, 410-11 (8th Cir. 1999) (same).

      We affirm the district court’s denial of McGhghy’s other motions. See
Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002) (de novo review of
judgment-on-pleadings ruling); Forsythe v. Hales, 255 F.3d 487, 490 (8th Cir. 2001)
(abuse-of-discretion review of default-judgment ruling).

      Accordingly, we affirm in part and remand in part for further proceedings
consistent with this opinion. We also deny as moot McGhghy’s motion to strike
portions of the government’s brief.
                       ______________________________

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