                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-1273
                                     ___________
United States of America,                  *
                                           *
              Appellee,                    * Appeal from the United States
                                           * District Court for the
   v.                                      * Western District of Missouri.
                                           *
Rafael J. Felici,                          *
                                           *
              Appellant.                   *
                                           *

                                     ___________

                             Submitted: October 19, 1999
                                 Filed: March 24, 2000
                                    ___________

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

HANSEN, Circuit Judge.

        Following our decision affirming his conviction for various methamphetamine-
related felony offenses and our subsequent denial of his application for postconviction
relief, Rafael J. Felici filed a motion in district court pursuant to Rule 41(e) of the
Federal Rules of Criminal Procedure for the return of certain property that the
government had seized during a search of Felici's residence. The property included
firearms and various other items. Without receiving any evidence, the district court
granted in part and denied in part Felici's Rule 41(e) motion. Felici appeals the portion
of the district court's order denying his Rule 41(e) motion to this court. We affirm the
district court's decision in regard to the firearms but, as to the remaining items, we
reverse and remand for further proceedings pursuant to Rule 41(e).

                                         I.
                         Facts and Procedural Background

        On September 20, 1994, a jury found Felici guilty of various methamphetamine
and firearm-related felony offenses. The district court sentenced Felici to 181 months
in prison pursuant to the United States Sentencing Guidelines. This court affirmed
Felici's conviction on appeal. See United States v. Felici, 54 F.3d 504 (8th Cir.), cert.
denied, 516 U.S. 897 (1995). Felici then filed a motion for postconviction relief with
the district court. See 28 U.S.C. § 2255. The district court granted Felici's motion in
part and vacated Felici's conviction for using and carrying a firearm based upon the
Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). The district
court denied the remainder of Felici's postconviction motion and resentenced Felici to
121 months in prison. We denied Felici's application for a certificate of appealability.

       Following this court's denial of his application for a certificate of appealability,
Felici filed a Rule 41(e) motion in which he sought the return of his confiscated
property. The district court ordered the government to return some of the property
requested by Felici. Citing this court's decision in United States v. Bagley, 899 F.2d
707 (8th Cir.), cert. denied, 498 U.S. 938 (1990), however, the district court refused
to compel the return of Felici's firearms. The district court also refused to order the
return of various portions of Felici's property that it labeled "drug-related items." The
supposed drug-related items include (1) a liquid wrench can with a false bottom, (2) a
Dr. Pepper can with a false bottom, (3) two silver cylinders, (4) Ohaus digital scales,
(5) seven books concerning the manufacturing of methamphetamine and cocaine, (6)
a Fisher/Ainsworth heat melting point analyzer, (7) a yellow box of Manitol, (8) a can
of Country Time with a false bottom, (9) Ohaus three-beam scales, and (10) Ohaus

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triple beam scales. The district court held that "returning firearms to a felon and drug-
related materials to an individual convicted of distribution of methamphetamine would
amount to a mockery of the law." (Dist. Ct. Order at 3) (internal quotations omitted).
We review the district court's legal conclusions de novo and its findings of fact for clear
error. See United States v. True, No. 98-3824, 1999 WL 604202, at *2 (8th Cir. Aug.
11, 1999), cert. denied, 120 S. Ct. 424 (1999).

                                           II.
                                       Discussion

       Rule 41(e) of the Federal Rules of Criminal Procedure provides in pertinent part
that "[a] person aggrieved by an unlawful search and seizure or by the deprivation of
property may move the district court for the district in which the property was seized
for the return of the property on the ground that such person is entitled to lawful
possession of the property. The court shall receive evidence on any issue of fact
necessary to the decision of the motion." Fed. R. Crim. P. 41(e). Felici argues that
based upon the text of the Rule, the district court must provide him an evidentiary
hearing in order allow him to demonstrate that he is lawfully entitled to the confiscated
property. Felici is partially correct.

      The plain language of Rule 41(e) allows persons whose property has been seized
by the government to petition the district court for the return of the confiscated
property. See Fed. R. Crim. P. 41(e). Rule 41(e) compels a district court to afford
such persons an opportunity to submit evidence in order to demonstrate that they are
lawfully entitled to the challenged property. As a threshold matter, however, Rule
41(e) contemplates the existence of a factual dispute as to whether the petitioner
lawfully is entitled to possess the challenged property. 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. See Bagley, 899 F.2d
at 708.

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       Federal law prohibits convicted felons from possessing guns. See 18 U.S.C. §
922(g) (1994). Based upon Felici's status as a convicted felon, the district court could
properly conclude without receiving evidence that Felici is not entitled to a return of the
firearms. Felici is also not entitled to have the firearms held in trust for him by a third
party.1 Such a request suggests constructive possession. Any firearm possession,
actual or constructive, by a convicted felon is prohibited by law. See United States v.
Sample, 136 F.3d 562, 564 (8th Cir. 1998). Hence, based upon the facts and the law,
the district court could properly deny Felici's motion for the return of his firearms
without receiving any additional evidence. The same rationale, however, does not
apply to the remaining items.

       Although the district court characterized the remaining items as "drug-related
materials," such materials are not "contraband per se." "Contraband per se is property
the mere possession of which is unlawful." United States v. Eighty-Eight Thousand,
Five Hundred Dollars, 671 F.2d 293, 297 n. 9 (8th Cir. 1982). It is not illegal to own
a false-bottomed can of Country Time or to possess books concerning the
manufacturing of controlled substances. The government argues that although the
challenged items are not per se illegal, they are related to criminal activity.
Accordingly, claims the government, the district court may deny Felici's Rule 41(e)
motion without receiving additional evidence based upon the doctrine of unclean hands
or the property's status as derivative contraband.

     "Derivative contraband [is property that] may be lawfully possessed but which
became forfeitable because of unlawful use." See Eighty-Eight Thousand, Five
Hundred Dollars, 671 F.2d at 297 n. 8. The doctrine of unclean hands is an equitable
doctrine that allows a court to withhold equitable relief if such relief would encourage
or reward illegal activity. See United States v. Giovanelli, 807 F. Supp. 351, 357


      1
       Felici advanced his third party trust argument in a pro se brief filed prior to our
decision to appoint counsel to represent him in this matter.
                                            -4-
(S.D.N.Y. 1992), rev'd on other grounds, 998 F.2d 116 (2d Cir. 1993). We have yet
to recognize either the derivative contraband theory or the doctrine of unclean hands
as it applies in a Rule 41(e) context.

       Federal law provides a vehicle for the government to prevent a person from
regaining possession of items associated with criminal activity. Pursuant to federal
asset forfeiture laws, the government may pursue a forfeiture action against any item
used or intended for use to manufacture, contain, or transport controlled substances.
See 21 U.S.C. § 881(a). The government failed to initiate an enforcement action in this
case. We believe, however, that such a failure should not prevent the government from
being able to assert, in resistance to a Rule 41(e) motion, a limited derivative
contraband theory, i.e., that the items sought to be returned were in fact utilized or
intended to be utilized by the person who possessed them for the manufacture, storage,
or transportation of controlled substances. We agree with the district court that it
makes scant sense to return to a convicted drug dealer the tainted tools used or intended
to be used in his illegal trade when the same were lawfully seized. The error here is
that the district court reached its conclusion as to the items that were not firearms
without the benefit of "receiving evidence" as required by law. Fed. R. Crim. P. 41(e).



                                         III.
                                      Conclusion

      For the foregoing reasons, we affirm the district court's denial of Felici's Rule
41(e) motion with respect to the firearms. With regard to the remaining items, we
reverse and remand for further proceedings not inconsistent with this opinion and in
compliance with Rule 41(e).




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A true copy.

      Attest:

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




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