                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-2863
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the Southern
                                          * District of Iowa.
Robert Joseph Willson, Jr.,               *
                                          *          [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                            Submitted: April 17, 2001

                                 Filed: May 17, 2001
                                     ___________

Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

       Robert Joseph Willson, Jr., appeals the district court’s denial of his Federal Rule
of Criminal Procedure 41(e) motion for the return of certain property that the
government seized during a search of his residence. We affirm the district court’s
decision as to one property item, a firearm, but as to the other items, we reverse and
remand for further proceedings.

      In December 1998, Mr. Willson entered into an agreement with the government
under which he agreed to plead guilty to a drug-conspiracy charge, in violation of
21 U.S.C. § 846, and acknowledged he had no right, title, interest, or claim in or to any
other property described in the forfeiture count of the indictment. The court accepted
the plea agreement and in May 1999 sentenced him to 120 months imprisonment. In
May 2000, Mr. Willson filed his Rule 41(e) motion, seeking the return of a Winchester
rifle, $1,400 in cash, documents purportedly pertaining to a bail-bonding business, and
a Honda automobile, all seized during a search of his residence in 1998. The district
court denied the motion in its entirety.

        After criminal proceedings have concluded, seized property should be returned
to its owner unless it is “subject to forfeiture.” See United States v. Smith, 659 F.2d
97, 99 (8th Cir. 1981). The government has the burden of proof to “justify its
continued possession of the property by demonstrating that it is contraband or subject
to forfeiture.” See United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987).
Generally, a motion for return of property is properly denied (1) if the defendant is not
entitled to lawful possession of the seized property, (2) if the property is contraband or
subject to forfeiture, or (3) if the government has a continuing evidentiary need for the
property. See United States v. Van Cauwenberghe, 934 F.2d 1048, 1061 (9th Cir.
1991). The district court should receive evidence on any issue of fact necessary to
decide a return-of-property motion. See Fed. R. Crim. P. 41(e). We review the court’s
legal conclusions de novo and its findings of fact for clear error. See United States v.
Felici, 208 F.3d 667, 669-70 (8th Cir. 2000), cert. denied, 121 S. Ct. 1209 (2001).

       As federal law prohibits possession of a firearm by any person who has been
convicted of a crime punishable by imprisonment for a term exceeding one year, see
18 U.S.C. § 922(g)(1), we conclude the district court properly determined, without
receiving evidence, that Mr. Willson was not entitled to the return of the rifle. See
Felici, 208 F.3d at 670-71 (when it is apparent that person seeking return of property
is not lawfully entitled to own or possess it, district court need not hold evidentiary
hearing; affirming denial of Rule 41(e) motion with respect to firearms). The same
rationale, however, does not apply to the remaining items, as Mr. Willson’s right to

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their return raised factual issues. See Fed. R. Crim. P. 41(e) (district court should
receive evidence on any issue of fact necessary to decide motion for return of property).

        We conclude the district court improperly denied without a hearing the Rule
41(e) motion as to the cash, Honda, and seized documents, because the indictment did
not mention these items, see Fed. R. Crim. P. 7(c)(2) (“No judgment of forfeiture may
be entered in a criminal proceeding unless the indictment or the information shall allege
the extent of the interest or property subject to forfeiture.”), and the government does
not dispute Mr. Willson’s contention that it failed to notify him of the forfeiture
proceedings against him, see 19 U.S.C. § 1607(a) (notice requirements); Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“elementary and
fundamental” due process requirement in any proceeding which is to be accorded
finality is notice reasonably calculated, under all circumstances, to apprise interested
parties of pendency of action and afford them opportunity to present objections).

      We are unpersuaded by the government’s argument that Mr. Willson lacks
standing to challenge the forfeiture of the Honda, because he provided the district court
with his sworn statement that he had possessed it as collateral. Although the record
before the district court included a law-enforcement inventory representing that the
vehicle was stolen and had been returned to its owner, an evidentiary hearing would
have allowed both parties to submit evidence on this matter. See Felici, 208 F.3d at
670 (“When it is apparent that the person seeking a return of the property is not
lawfully entitled to own or possess the property, the district court need not hold an
evidentiary hearing.”) (emphasis added). The government’s assertion that it no longer
possesses the vehicle does not moot this issue. See United States v. Chambers, 192
F.3d 374, 376-78 (3d Cir. 1999) (government’s alleged release of vehicle to
repossession company did not moot Rule 41(e) motion; if, in response to post-judgment
motion, government asserts it no longer has property, district court must determine
whether government retains possession of property and if court finds government no
longer possesses it, court must determine what happened to property and must hold

                                           -3-
evidentiary hearing on relevant disputed factual issues); Thompson v. Covington,
47 F.3d 974, 974-75 (8th Cir. 1995) (per curiam) (inmate’s action seeking return of
property seized in connection with his criminal case was not mooted by government’s
assertion it could not find property; citing Soviero v. United States, 967 F.2d 791,
792-94 (2d Cir. 1992) (case not moot where property destroyed, because court’s
equitable jurisdiction empowers it to fashion appropriate relief)).

       Finally, we conclude the district court also erred in not receiving evidence as to
the destroyed documents. The parties disputed the nature of these documents, and the
only evidence before the district court on the issue was an inventory indicating that
certain “drug notes” were destroyed. See Felici, 208 F.3d at 670-71 (district court
erred in denying return of “drug-related materials” without receiving evidence; disputed
items, e.g., books concerning manufacture of illegal drugs, were not contraband per se);
United States v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293, 297 n.9
(8th Cir. 1982) (contraband per se is property mere possession of which is unlawful,
such as heroin and sawed-off shotguns). Even if the seized documents have been
destroyed, Mr. Willson’s appeal as to this issue is not moot. See Thompson, 47 F.3d
at 974-75.

      For the foregoing reasons, we affirm the district court’s denial of Mr. Willson’s
Rule 41(e) motion with respect to the firearm. As to the remaining noted items,
however, we reverse and remand for further proceedings consistent with this opinion
and Rule 41(e).

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.


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