                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 3, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-8079
 v.                                          (D.Ct. No. 1:08-CR-00067-ABJ-1)
                                                         (D. Wyo.)
 CHARLES PENRY,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Appellant Charles Penry, a federal inmate appearing pro se, appeals the

district court’s order denying his post-conviction motion filed pursuant to Federal


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Rule of Criminal Procedure 41(g) for return of a laptop computer and hard drive

seized by the government and retained following his conviction. Exercising our

jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s order.

                      I. Factual and Procedural Background

      For the purpose of addressing this appeal, we provide only a brief summary

of the relevant factual and procedural background. On February 18, 2008,

Wyoming law enforcement officials arrested Mr. Penry pursuant to a Colorado

warrant for a parole violation. Four days later, his roommate voluntarily turned

over to law enforcement Mr. Penry’s laptop computer and associated computer

equipment, stating his computer might contain images of child pornography. On

February 26, 2008, agents with the Wyoming Internet Crimes Against Children

task force interviewed Mr. Penry, who admitted he used the computer to

download and view child pornography from the internet and attempted to

camouflage such pornography by altering file names and extensions.

      On March 7, 2008, authorities obtained and executed a search warrant on

the computer and its hard drive where they discovered more than 600 images and

videos of young children engaging in sexually explicit activity. An indictment

followed, charging Mr. Penry with one count of possession of child pornography

in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The indictment did not,

however, charge Mr. Penry with a count for criminal forfeiture under 18 U.S.C.

§ 2253 relating to the property seized.

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      One month later, Mr. Penry entered into a plea agreement and pled guilty to

the indictment. At his plea hearing, Mr. Penry again admitted he knowingly

possessed property containing digital images of child pornography. On July 11,

2008, the district court sentenced him to 150 months imprisonment and twenty

years supervised release.

      In May 2009, Mr. Penry filed a motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255 on grounds other than presented here,

which the district court denied and Mr. Penry did not appeal. In August 2012,

Mr. Penry filed the instant Rule 41(g) motion, seeking the return of his seized

property, claiming the government failed to obtain the required forfeiture order on

said property, and arguing the fourteen-day delay in obtaining and executing a

search warrant following his arrest violated his constitutional right against

unreasonable search and seizure. The government objected, arguing Mr. Penry

forfeited his right to such property when he used it in the commission of the

offense for which he was convicted.

      The district court issued an order denying Mr. Penry’s motion for return of

seized property with respect to the laptop computer and its hard drive but granting

his motion as to any remaining property. Concerning the computer and hard

drive, the district court relied on 18 U.S.C. §§ 2252A(a)(5)(B) and 2253(a) to

explain Mr. Penry forfeited both his interest in images containing sexually

explicit depictions of minors and the property containing those images–the laptop

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computer and hard drive which he used to commit the offense of sexual

exploitation of a minor. As to the reasonableness of the search and seizure of the

computer equipment due to the fourteen-day delay in obtaining a warrant and

conducting the search, the district court declined to address the merits of such a

claim, explaining Mr. Penry could not collaterally challenge the circumstances

surrounding the search and seizure of property through a post-conviction Rule

41(g) motion. Alternatively, it explained that even if it construed the motion as a

collateral attack on his conviction under 28 U.S.C. § 2255, it would be a second

or successive motion, and Mr. Penry had not demonstrated, as required by

§ 2255(h), that the motion contained either newly-discovered evidence or a new

rule of retroactive constitutional law.

                                    II. Discussion

      Mr. Penry now appeals the portion of the district court’s order denying the

return of his computer and hard-drive, claiming it abused its discretion by failing

to follow the required criminal and administrative forfeiture procedures, as

required by 18 U.S.C. § 2254, 21 U.S.C. § 853, and Federal Rule of Criminal

Procedure 32.2, and that the government failed to obtain a forfeiture order

pursuant to those provisions. Mr. Penry also renews his argument the government

violated his constitutional right against unreasonable search and seizure based on

the fourteen-day delay between his arrest and the issuance and execution of the

search warrant. He also suggests Rule 41(g) is the appropriate avenue for

                                          -4-
recovery of such property as well as to suppress evidence obtained through an

illegal search and seizure.

      We begin with the general premise that “[t]he government is clearly

permitted to seize evidence for use in investigations and trial,” but, as a general

rule, “seized property, other than contraband, should be returned to its rightful

owner once the criminal proceedings have terminated.” United States v.

Rodriguez-Aguirre, 264 F.3d 1195, 1212 (10th Cir. 2001) (internal quotation

marks omitted). Section 2253 explains what is considered contraband or property

subject to forfeiture for offenses, like Mr. Penry’s, which involve the sexual

exploitation of children. It states defendants involved in such offenses “shall

forfeit to the United States such person’s interest in” any visual depictions,

proceeds obtained from such an offense, and “any property, real or personal, used

or intended to be used to commit or promote the commission of such offense or

any property traceable to such property.” See 18 U.S.C. § 2253(a)(1)-(3). It

further references the general statute regarding criminal forfeitures, 28 U.S.C.

§ 853, explaining the provisions of that statute also apply, except for “subsections

(a) and (d).” Section 853 is the statute on which Mr. Penry relies in his appeal.

However, the unexcepted subsections of § 853 do not aid in our disposition of this

appeal given they involve primarily the treatment of such property with respect to

third parties, protective orders, the court’s authority to issue warrants for seizure,

and the government’s disposition of seized property. See 21 U.S.C. § 853(a)-(q).

                                          -5-
Only the excepted provision in subsection (a), which does not apply, states an

order of forfeiture shall issue. 1

       While § 2253 directs the forfeiture of contraband property involved in the

offense Mr. Penry committed, he correctly contends no forfeiture order has been

issued giving title to the government. Federal Rule of Criminal Procedure 32.2,

regarding criminal forfeitures, and on which Mr. Penry also relies, requires the

court to issue a forfeiture order, directly or by reference, in a criminal judgment.

See Fed. R. Crim. P. 32.2(b)(4)(B). However, such an order may issue only if

“the indictment or information contains notice to the defendant that the

government will seek forfeiture of property as part of any sentence in accordance

with the applicable statute.” See Fed. R. Crim. P. 32.2(a). 2 In this case, the

indictment did not contain a forfeiture count pursuant to § 2253 and, accordingly,

the district court did not enter a criminal forfeiture order in the judgment.

       Mr. Penry also correctly points out no administrative forfeiture of his

property occurred under 18 U.S.C. § 2254. While the government may obtain

       1
         Only the excepted portion of subsection (a) states the court in sentencing
a convicted person “shall order ... that the person forfeit to the United States all
property” used or intended to be used to commit or facilitate any violation of
federal law. See 21 U.S.C. § 853(a) (emphasis added).
       2
         Adherence to this criminal forfeiture rule has been applied with respect to
the offense of sexual exploitation of children offenses and forfeitures under 18
U.S.C. § 2253. See, e.g., United States v. Huckins, 529 F.3d 1312, 1314 (10th
Cir. 2008) (showing forfeiture count under 18 U.S.C. § 2253 included in
indictment and forfeiture order regarding computer equipment included in the
judgment).

                                         -6-
quiet title to property involved in a criminal proceeding through an administrative

forfeiture proceeding, see United States v. Clymore, 245 F.3d 1195, 1200 (10th

Cir. 2001); United States v. Clark, 84 F.3d 378, 380 (10th Cir. 1996), no such

administrative proceeding occurred in this case.

      Finally, a party or the government may gain quiet title to confiscated

property in a civil equitable proceeding brought pursuant to Federal Rule of

Criminal Procedure 41(g)–the rule on which Mr. Penry now bases his motion. 3

See Clymore, 245 F.3d at 1200; Floyd v. United States, 860 F.2d 999, 1006 (10th

Cir. 1988). Rule 41(g) of the Federal Rules of Criminal Procedure provides:

      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.

Fed. R. Crim. P. 41(g).

      We review questions of law relating to Rule 41(g) motions de novo and

review the district court’s weighing of equitable considerations and its decision to

deny such a motion for an abuse of discretion. See United States v. Shigemura,

664 F.3d 310, 312 (10th Cir. 2011), cert. denied, 132 S. Ct. 1952 (2012).

      3
        As the district court noted, when Rule 41 was amended in 2002, Rule
41(e) became Rule 41(g) with only stylistic changes. See United States v.
Copeman, 458 F.3d 1070, 1071 n.1 (10th Cir. 2006). Therefore, earlier authority
discussing Rule 41(e) remains relevant to our disposition of this appeal.

                                        -7-
Generally, when a claimant seeks recovery of property through a Rule 41(g)

proceeding, we have said the claimant “must prove only a right to lawful

possession of the property and an equitable right to its return, and no

presumptions exist in favor of the government.” Clymore, 245 F.3d at 1201.

However, when the property is used to commit the offense on which the defendant

received his conviction, only an innocent owner or one aggrieved by an illegal

seizure may qualify for lawful possession of the property. See id. at 1201-02

(holding contraband and other property used to commit drug offense was not

subject to return to convicted defendant). When defendants attempt through a

Rule 41 proceeding to equitably recover property seized during arrest, we have

said a court may give quiet title to the government, explaining defendants who

use the property to commit an offense lack a “conclusively presumptive property

right in the fruit of their criminal conduct.” Id. at 1200.

      In this case, the district court explained Mr. Penry forfeited his interest in

the laptop computer and hard drive because he used them to commit his offense of

sexual exploitation of a minor. This fact is clearly undisputed, given Mr. Penry’s

own admission he used the computer and hard drive to download and view child

pornography from the internet. As a result, Mr. Penry is not innocent with regard

to the use of such property and, pursuant to 18 U.S.C. § 2253, such property is

clearly subject to forfeiture.

      With respect to whether such property was illegally seized, the district

                                          -8-
court declined to make a determination on the merits, holding Mr. Penry could not

collaterally challenge the circumstances surrounding the search and seizure

through a post-conviction Rule 41(g) motion. We agree and have found no legal

precedent stating otherwise. We also agree with the district court that Mr. Penry

failed to show he is entitled to bring a collateral attack on his conviction under 28

U.S.C. § 2255. In addition, no prior ruling or anything in the record suggests the

search and seizure at issue were illegal. Because nothing indicates illegal seizure

of Mr. Penry’s property and he soundly lacks the legal innocence required for its

return, he fails to show he is entitled to the return of his laptop computer and hard

drive. As such, the district court did not abuse its discretion in denying that

portion of Mr. Penry’s motion relating to this property, thereby giving quiet title

to the government.

      Even if we addressed the merits of the legality of the search and seizure of

such property for Mr. Penry’s benefit, he could not prevail. He was arrested on

February 18, 2008, on circumstances unrelated to his exploitation of a minor

conviction. Only after his roommate’s production of the property at issue on

February 22, 2008, did authorities have notice of Mr. Penry’s instant offense.

Information from the roommate, together with Mr. Penry’s own admission, on

February 26, 2008, to using such property to download and view child

pornography, was sufficient to show probable cause for a search warrant, see

United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006), and the fact it

                                          -9-
was not obtained and executed until approximately fourteen days after his

admission does not establish, under the circumstances presented, the degree of

delay necessary for the purpose of making the seizure of his property

unconstitutional. See, e.g., United States v. Burgess, 576 F.3d 1078, 1096-97

(10th Cir. 2009) (holding forty-four-day delay in forensic search of hard drive

constitutional where probable cause is unaffected by delay); United States v.

Shomo, 786 F.2d 981, 984 (10th Cir. 1986) (holding probable cause may be found

despite the existence of a substantial delay between the event relied on and the

issuance of the warrant if property is likely to stay in same place for lengthy

time).

                                   III. Conclusion

         For these reasons, we AFFIRM the district court’s order on Mr. Penry’s

Rule 41(g) motion. We also GRANT Mr. Penry’s motion to proceed in forma

pauperis.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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