            Case: 13-15016   Date Filed: 10/30/2014   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15016
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:07-cr-00060-TWT-JSA-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JOSEPH MICHAEL MOONEY,
a.k.a. bjmjbm,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________


                             (October 30, 2014)

Before TJOFLAT, HULL and JORDAN, Circuit Judges.

PER CURIAM:
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       Joseph Mooney, a pro se federal prisoner, appeals the district court’s denial

of his post-judgment motion for the return of property—a laptop computer seized

in 2007—under Federal Rule of Criminal Procedure 41(g). After review, we

affirm.

       Under Rule 41(g), “[a] person aggrieved by an unlawful search and seizure

of property or by the deprivation of property may move for the property’s return.”

Fed. R. Crim. P. 41(g). When the property owner “invokes Rule 41(g) after the

close of all criminal proceedings, the court treats the motion for return of property

as a civil action in equity.” United States v. Howell, 425 F.3d 971, 974 (11th Cir.

2005). Equitable jurisdiction “must be exercised with caution and restraint” and is

appropriate only when necessary to “prevent manifest injustice” in light of the

movant’s conduct and the merits of his request. United States v. Martinez, 241

F.3d 1329, 1331 n.2 (11th Cir. 2001) (addressing Rule 41(g)’s predecessor, Rule

41(e)). For the district court to exercise equitable jurisdiction, the property owner

“must show that he had a possessory interest in the property seized by the

government” and that he has “clean hands” with respect to the property. Howell,

425 F.3d at 974. 1




       1
         We review questions of law relating to a Rule 41(g) motion de novo, but review “the
equitable equation of the district court’s decision to deny a Rule 41(g) motion only for abuse of
discretion.” United States v. Machado, 465 F.3d 1301, 1307 (11th Cir. 2006), abrogated on other
grounds by Bowles v. Russell, 551 U.S. 205, 208-13, 127 S. Ct. 2360, 2363-66 (2007).
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      Here, the district court did not abuse its discretion in denying Mooney’s

Rule 41(g) motion. In 2007, a jury convicted Mooney of using a computer to

attempt to entice a minor to engage in criminal sexual activity and of crossing a

state line with the intent to engage in a sexual act with a child under the age of 12.

According to the trial evidence, Mooney communicated by computer (including his

laptop computer) over the internet and by phone with what he thought was the

mother of a ten-year-old girl, but was actually an FBI agent. Mooney then drove

from Missouri to Georgia to engage in sexual activity with the child. When

Mooney arrived at the rendezvous point near Atlanta, Georgia, he was arrested.

Upon searching Mooney’s car, agents found and seized his laptop computer, which

contained images of child pornography, records of numerous internet chats,

including chats with the undercover FBI agent and also with other people, about

engaging in sexual activity with children, and saved maps of the Atlanta area.

      Prior to trial, Mooney unsuccessfully moved to exclude this evidence under

Federal Rule of Evidence 403 as unfairly prejudicial. Mooney, however, did not

challenge the basis for seizing his laptop computer either during his criminal

proceedings or on direct appeal. See United States v. Mooney, 303 F. App’x 737,

739 (11th Cir. 2008) (affirming Mooney’s convictions and sentences).

      As the record demonstrates, and Mooney does not dispute, his laptop

computer contained evidence of, or relevant to, his offenses, some of which also


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was contraband child pornography. Thus, Mooney failed to show he had clean

hands with respect to the laptop computer, and he was not entitled to its return

under Rule 41(g).

      Mooney argues that his laptop computer was seized unlawfully and in

violation of his Fourth Amendment rights because the government delayed in

obtaining a warrant to search its contents, but this argument misses the point. Even

assuming arguendo that the laptop computer’s seizure was unlawful—an issue he

did not raise in his criminal proceedings, Mooney nonetheless is barred from Rule

41(g) relief by his undisputed unclean hands with respect to the computer. See

Howell, 425 F.3d at 977. For this reason, the district court was not required to

address the merits of Mooney’s argument that the seizure was unlawful.

Furthermore, given that there was no factual dispute as to Mooney’s unclean

hands, the district court was not required to hold an evidentiary hearing before

denying Mooney’s Rule 41(g) motion. See Fed. R. Crim. P. 41(g) (requiring the

district court to “receive evidence on any factual issue necessary to decide the

motion”).

      Finally, the record belies Mooney’s claim that the district court failed to

consider his objections to the magistrate judge’s report and recommendation. In its




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order denying the Rule 41(g) motion, the district court explicitly stated that

Mooney’s “objections to the Report and Recommendation are without merit.” 2

       For all these reasons, the district court did not commit any reversible error in

denying Mooney’s Rule 41(g) motion.

       AFFIRMED.




       2
          We do not address Mooney’s argument, explicitly withdrawn in his reply brief, that the
district court erred in considering the government’s response to his Rule 41(g) motion because it
was untimely.
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