
USCA1 Opinion

	




          September 6, 1996     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1037                                  HELEN FORMANCZYK,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr, and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Helen Formanczyk on brief pro se.            ________________            Donald  K.  Stern,  United  States  Attorney,  and  Dina   Michael            _________________                                   ______________        Chaitowitz, Assistant  United States  Attorney, on Motion  for Summary        __________        Disposition for appellee.                                 ____________________                                 ____________________                 Per Curiam.   Pro se appellant  Helen Formanczyk appeals                 __________    ___ __            the denial by the district court of her motion for the return            of  property seized  by  the United  States  Government.   We            vacate the denial and remand for further proceedings.                 Formanczyk styled her motion as  one pursuant to Fed. R.            Crim. P. 41(e).   However, since criminal proceedings against            her  have  been completed,  the  district  court should  have            construed  her  motion  as  a  civil  action  for  return  of            property, pursuant to  28 U.S.C.    1331.   United States  v.                                                        _____________            Giraldo, 45 F.3d  509, 511  (1st Cir.  1995) (citing  cases).            _______            Moreover, inasmuch as the property seized is no longer needed            for  evidentiary   purposes,  "[t]he  person  from  whom  the            property [has been] seized is presumed to have a right to its            return, and  the government  has the burden  of demonstrating            that  it has  a  legitimate reason  to retain  the property."            United States  v. Martinson,  809 F.2d  1364, 1369 (9th  Cir.            _____________     _________            1987)  (citing  cases)  (footnotes  omitted).    Although the            government  now alleges  that  the property  in question  was            forfeited in an administrative  proceeding, the instant  case            was dismissed  before the district court  received a response            from  the  government.     Consequently,  as  the  government            concedes,  there  is no  evidence  of the  forfeiture  in the            record.  In such  circumstances the dismissal of Formanczyk's            claim was premature.                 Vacated and remanded.                 _______     ________                                         -2-
