                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          August 8, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                         No. 05-6091
                                                         (W .D. Oklahoma)
 V IRGIL EA RL N ELSO N ,                             (D.C. No. CR-03-06-M )

          Defendant - Appellant.
                         ____________________________

                              OR D ER AND JUDGM ENT *


Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.




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

unanimously that oral argument would not materially assist 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.

          Virgil Earl Nelson, appearing pro se, 1 appeals from the district court’s

denial of his M otion for Return of Property Pursuant to Federal Rule of Criminal


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
Procedure 41(g). Exercising jurisdiction under 28 U.S.C. § 1291, we REVERSE

and R EM AN D .

Discussion:

      In January 2001, federal agents initiated a lengthy investigation into

possible criminal activities of the Oklahoma chapter of the Outlaw s M otorcycle

Club (O M C). During the investigation, agents executed several search warrants

at various locations seeking evidence of, inter alia, methamphetamine

manufacturing and distribution. The federal agents seized various items including

firearms, ammunition, drug paraphernalia, components and equipment used to

manufacture methamphetamine, and documents containing OM C organizational

information. Included in this material were cameras, computers, personal photos

and papers, as well as clothing and accessories associated with the OM C. Various

items of Nelson’s personal property were among those seized.

      On M ay 8, 2003, Nelson was indicted for various offenses including

methamphetamine production. On February 9, 2004, he pled guilty to attempting

to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846,

and was sentenced to 240 months imprisonment on M ay 19, 2004. Nelson filed

an appeal of his sentence on M ay 28, 2004, based on United States v. Booker, 543

U.S. 220 (2005). 2 On January 3, 2005, Nelson filed a M otion for Return of




      2
          See United States v. Nelson, (04-6182).

                                             -2-
Property Pursuant to Federal Rule of Criminal Procedure 41(g). 3 The government

responded by asking to retain the property until Nelson’s direct appeal was final.

The district court denied Nelson’s motion on February 14, 2005.

      On appeal, Nelson argues the district court abused its discretion by not

granting his Rule 41(g) M otion and ordering the return of property unreasonably

retained by the government. The government argues the present appeal is moot

because “the government is prepared to initiate the return of [Nelson’s] property.”

(Appellee’s Br. at 7.) The government concedes the “return of [N elson’s]

property is not unreasonable at this time.” (Id. at 6.) It even goes so far as to

suggest “that a scheduling order could be entered by the district court, either by

agreement of the parties or pursuant to a hearing on the matter before the district

court . . . .” (Id. at 8.) Nelson objects that such statements are “more rhetorical

than real.” (A ppellant’s Reply Br. at 2-3.)

                                     I. M ootness

      “W e address the issue of mootness as a threshold question because in the

absence of a live case or controversy, we have no subject-matter jurisdiction over

an appeal.” In re BCD Corp., 119 F.3d 852, 856 (10th Cir. 1997). “A case is

moot when it is impossible for the court to grant any effectual relief whatever to a

prevailing party.” In re Overland Park Fin. Corp., 236 F.3d 1246, 1254 (10th



      3
        Prior to December 1, 2002, Rule 41(g) was Rule 41(e), with minor stylistic
differences. See Clymore v. United States, 415 F.3d 1113, 1114 n.1 (10th Cir. 2005).

                                           -3-
Cir. 2001) (internal quotation omitted).

      W hile the government expresses a willingness to return the property, it has

not actually done so. See F.E.R. v. Valdez, 58 F.3d 1530, 1534 (10th Cir. 1995)

(Case moot where government actually “returned the files and [could not] simply

decide to confiscate them again without a warrant issued by a detached and

neutral magistrate.”). Nor does the government’s proffer of potentially available

future legal avenues serve to moot the present appeal, as it has not instituted any

binding proceedings aimed at returning the property. See Longstreth v. M aynard,

961 F.2d 895, 900-01 (10th Cir. 1992) (“[V]oluntary cessation of a challenged

practice does not deprive a federal court of its power to determine the legality of

the practice,” unless it can “be said with assurance that there is no reasonable

expectation that the wrong would be repeated.”) (internal quotations omitted).

Thus, Defendant’s motion under Rule 41(g) is not moot simply because the

government states that it is “prepared to initiate” the return of the property,

especially where it equivocates its position by characterizing the return as “not

unreasonable at this tim e.” (Appellee’s Br. at 6 (emphasis added).) The

government’s statements, so qualified, have no binding effect on the government

and do not guarantee the return of Nelson’s property. Consequently, this appeal

is not moot.

                               II. Rule 41(g) M otion

      Rule 41(g) provides, in part, that “[a] person aggrieved by an unlawful

                                           -4-
search and seizure of property or by the deprivation of property may move for the

property’s return.” A Rule 41(g) motion is governed by equitable principles.

Floyd v. United States, 860 F.2d 999, 1002-03 (10th Cir. 1988) (discussing former

Rule 41(e)). The defendant bears the burden of establishing under Rule 41(g) that

“the retention of the property by the government is unreasonable . . . .” In re

M atter of Search of Kitty’s East, 905 F.2d 1367, 1375 (10th Cir. 1990). W e

review a district court’s denial of a Rule 41(g) motion for an abuse of discretion.

United States v. Deninno, 103 F.3d 82, 84 (10th Cir. 1996) (applying former Rule

41(e)). A district court abuses its discretion where it “fails to consider the

applicable legal standard or the facts upon which the exercise of its discretionary

judgment is based.” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).

      Judging by the list of objects presented in Nelson’s Rule 41(g) M otion and

his filings before this Court, several of the objects appear on their face to be

innocuous and irrelevant to the government’s asserted interest in maintaining

possession for possible resentencing. Thus Nelson met his initial burden of

establishing that the continued retention of those items by the government is

unreasonable, at least on its face. However, no justification for the continued

retention of those items w as offered other than the possibility of use in

resentencing. W hile the government has a legitimate interest in maintaining

control of property relevant to the prosecution and sentencing of a defendant until




                                          -5-
his criminal proceedings are final, 4 it must establish the property seized is

actually relevant to that process. The government cannot simply rely on the

possibility of resentencing to justify retaining all property seized, especially that

of an apparently innocuous and irrelevant nature.

       The district court abused its discretion in denying Nelson’s Rule 41(g)

M otion without differentiating between the obviously relevant and facially

irrelevant property seized and retained by the government. 5 Rather, confronted

with the retention of apparently innocuous and irrelevant property, the court

should have required the government to state its reasons for retaining Nelson’s

property with respect (at least) to the classes of property at issue.

R EV ER SED and REM AND ED.

                                          Entered by the C ourt:

                                          Terrence L. O ’Brien
                                          United States Circuit Judge




       4
        Toward this end, Rule 41(g) specifically provides that if the district court “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.”
       5
        Rule 41(g) requires that “[t]he court must receive evidence on any factual issue
necessary to decide the motion.”

                                             -6-
