                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-12715         ELEVENTH CIRCUIT
                                   Non-Argument Calendar    DECEMBER 21, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                           D.C. Docket No. 9:07-cr-80051-DTKH-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

JULIEN GARCON,
a.k.a. Johnathan Imgramham,
a.k.a. Julian Garcon,
a.k.a. Tedric Sherman,

lllllllllllllllllllll                                          Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                     (December 21, 2010)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:
      Julien Garcon, a federal prisoner proceeding pro se, appeals the district

court’s order denying his motion for return of property, filed pursuant to

Fed.R.Crim.P. 41(g). On appeal, Garcon contends that the district court erred in

denying his Rule 41(g) motion. Specifically, he argues that the court should have

ordered the government to return $48,865.00 in United States currency, the two

identification documents, and the 40 loose photographs. He also asserts that the

district court did not give him adequate time to object to the magistrate’s report

and recommendation (“R & R”). For the reasons stated below, we affirm.

                                          I.

      In 2007, a jury convicted Garcon of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Garcon

to a term of 120 months’ imprisonment. We affirmed Garcon’s conviction and

sentence on direct appeal. United States v. Garcon, 349 Fed.Appx. 377 (11th Cir.

2009). Garcon subsequently filed a 28 U.S.C. § 2255 motion to vacate sentence,

which currently is pending before the district court.

      In December 2009, Garcon filed a pro se motion under Fed.R.Crim.P. 41(g)

seeking the return of certain property seized by the government. After the district

court ordered Garcon to clarify the property at issue, Garcon filed an amended

motion explaining that he was seeking the return of: (1) $48,865 in U.S. currency;

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(2) “40 loose pictures;” (3) an auto auction card; (4) a driver’s license; (5) a soil

compressor; (6) a hydraulic jack; (7) a plastic bin; (8) an Audi A6 vehicle; and

(9) handcuffs.

      In its response, the government explained that the $48,865 in U.S. currency

was given to the West Palm Beach Police Department for safekeeping, and

ultimately had been forfeited as abandoned property to the City of West Palm

Beach. The government stated that the 40 loose photographs and a box containing

handcuffs already had been returned to Garcon’s designee. The government

explained that the two identification cards mentioned by Garcon, a Miami Auto

Auctions card and a driver’s license, had evidentiary value, and, therefore, needed

to remain in the government’s possession until Garcon’s § 2255 motion was

resolved. Next, the government explained that the soil compressor and hydraulic

jack had been used to press cocaine hydrochloride into bricks. Therefore, the

government argued that those items were contraband and should not be returned to

Garcon. Finally, the government explained that the Audi A6 vehicle was

quick-released to Capital One Auto Finance, which held a lien on the vehicle.

      In support of its response, the government submitted an affidavit by Special

Agent James Matthews of the Drug Enforcement Administration, who served as

the case agent in the federal prosecution of Garcon. Agent Matthews explained

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that the $48,865 in U.S. currency was given to the West Palm Beach Police

Department for safekeeping. The police department sent a notification letter to an

address for Shari Morant, the individual who signed the lease for the apartment

from which the money had been recovered but the money went unclaimed and

ultimately was forfeited to the City of Palm Beach as abandoned property. Agent

Matthews stated that agents already had returned the 40 loose pictures and a box

containing handcuffs to Garcon’s designee. Agent Matthews was planning to

make arrangements to return two plastic bins to Garcon’s designee as well.

      Agent Matthews stated that the two identification cards, a Miami Auto

Auctions card and driver’s license would have evidentiary value in any retrial of

Garcon. He indicated that he would return the Miami Auto Auction card to

Garcon’s designee after all proceedings concerning Garcon’s conviction were

completed. Agent Matthews explained that the driver’s license appeared to be a

counterfeit document, and, as such, should not be returned to Garcon. Next, Agent

Matthews explained that the soil compressor and hydraulic jack appeared to have

been used to compress cocaine hydrochloride into bricks. He explained that the

surface of the soil compressor had tested positive for cocaine. Accordingly, Agent

Matthews asserted that the soil compressor and hydraulic jack were drug

paraphernalia that should not be returned to Garcon. Finally, Agent Matthews

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explained that the Audi A6 had been quick-released to Capital One Auto Finance,

which held a lien on the vehicle, in accordance with DEA policy.

      On March 29, 2010, a magistrate issued an R & R concluding that Garcon’s

motion for return of property should be denied. First, the magistrate noted that

Agent Matthews’s affidavit stated that the government had already returned the 40

loose pictures, plastic bin, and handcuffs to Garcon. The magistrate observed that

Garcon had not challenged that contention, despite having ample time to do so.

Therefore, the magistrate recommended that the motion be denied as moot with

respect to those items. Next, the magistrate noted that the $48,865 had been given

to the West Palm Beach Police Department and had been forfeited to the City of

Palm Beach as abandoned property. The magistrate concluded that the

government did not have the ability to return the currency because the government

had never taken possession of it.

      Next, the magistrate concluded that Garcon was not entitled to the return of

the Miami Auto Auctions card or driver’s license because those documents would

be needed as evidence at a retrial in the event that Garcon was able to successfully

overturn his conviction in the § 2255 proceedings. The magistrate also concluded

that Garcon could not recover the soil compressor or hydraulic jack because those

items had been used to package cocaine, and, therefore, were contraband. Finally,

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the magistrate determined that Garcon’s motion should be denied with respect to

the Audi A6 because that vehicle had been quick-released to a lien holder, Capital

One Auto Finance. Accordingly, the magistrate recommended that Garcon’s

motion to return property be denied.

      On April 8, 2010, less than 14 days after the R & R was entered, the district

court adopted the magistrate’s report and denied Garcon’s Rule 41(g) motion. On

April 20, 2010, Garcon’s objections to the R & R were filed with the district court.

Garcon certified that he had placed his objections in the institutional mail on April

7, 2010, nine days after the magistrate’s report was entered. In his objections,

Garcon stated that he never received a copy of the government’s response, and,

therefore, did not have an opportunity to contest the government’s assertion that it

already had returned the 40 loose pictures, plastic bin, and the handcuffs. He

asserted that the government had not submitted any evidence showing that the

$48,865 in U.S. currency had been forfeited He also argued that any forfeiture

order was invalid because neither he nor the lease holder, Shari Morant, received

notice of the forfeiture proceedings.

      Next, Garcon argued that the soil compressor and hydraulic jack were not

contraband because no cocaine residue had been found on those items. He stated

that the government had violated his Fourth and Fifth Amendment rights by

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turning the Audi A6 over to Capital One Auto Finance without giving him prior

notice. Finally, Garcon asserted that the government did not have a continuing

need for the identification cards because his conviction had been affirmed on

direct appeal.

                                         II.

      In considering the district court’s denial of a Fed.R.Crim.P. 41(g) motion to

return property, we review the district court’s legal conclusions de novo and its

factual findings for clear error. United States v. Howell, 425 F.3d 971, 973 (11th

Cir. 2005). Although we liberally construe pro se briefs, issues not raised on

appeal by a pro se litigant are deemed abandoned. Timson v. Samson, 518 F.3d

870, 874 (11th Cir. 2008). We do not consider arguments raised for the first time

in a reply brief. Id.

      Under Federal Rule of Criminal Procedure 41(g), an individual whose

property has been seized by the government may file a motion for return of the

property. Fed.R.Crim.P. 41(g). A Rule 41(g) motion is treated as a civil action in

equity. Howell, 425 F.3d at 974. The movant must demonstrate that he has a

possessory interest in the seized property and that he has “clean hands” with

respect to that property. Id. The First Circuit has held that “a Rule 41(g) motion is

properly denied if the defendant is not entitled to lawful possession of the seized

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property, the property is contraband or subject to forfeiture, or the government’s

need for the property as evidence continues.” United States v. Pierre, 484 F.3d

75, 87 (1st Cir. 2007) (quotation omitted). If the government wishes to retain the

property, it must have and state a legitimate reason for doing so. United States v.

Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001). The government is not

obligated to return property that it no longer possesses, but it must provide some

evidentiary support for its claim that it no longer has possession of the property.

See id. (holding that the district court erred when it relied on the government’s

representation that the property sought by the defendant had been destroyed

because the government did not submit any evidence of the property’s

destruction).

      In this case, Garcon’s opening brief does not challenge the denial of his

motion with respect to the plastic bin, the handcuffs, the soil compressor, or the

hydraulic jack. Therefore, Garcon has abandoned any argument that he is entitled

to the return of those items. Although Garcon did not expressly mention the Audi

A6 in his initial brief, we will liberally construe his arguments regarding forfeiture

as referring to both the vehicle and the currency.

      The district court properly denied Garcon’s Rule 41(g) motion with respect

to the $48,865 in United States currency because that money had been turned over

                                          8
to the to the City of West Palm Beach Police Department, and ultimately was

forfeited to the City of West Palm Beach. Although Garcon contends that the city

did not provide sufficient notice of the forfeiture proceeding, the real question is

not whether the forfeiture comported with the requirements of due process, but

rather, whether the government was in possession of the currency. Because the

government demonstrated that it no longer had possession of the currency, the

district court correctly found that the government did not have the ability to return

it to Garcon.

      Garcon also failed to demonstrate that he was entitled to the return of the

Audi A6. The record reflects that the Audi was quick-released to Capital One

Auto Finance, which held a lien on the vehicle. Garcon failed to show that he had

a possessory interest in the Audi that was superior to that of the lien holder. See

Howell, 425 F.3d at 974 (explaining that the movant must demonstrate that he has

a possessory interest in the seized property).

      Next, the government was not obligated to return the Miami Auto Auctions

card or the driver’s license because those items would be needed as evidence in

the event that Garcon’s pending 28 U.S.C. § 2255 motion is successful and he is

able to obtain a new trial. See Pierre, 484 F.3d at 87 (stating that a Rule 41(g)

motion should be denied if the government’s need for the property as evidence

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continues). Finally, Agent Matthews reported that the 40 loose photographs

already had been returned to Garcon’s designee, and Garcon failed to offer any

evidence to refute that contention. Because the property that Garcon sought to

have returned either was not in possession of the government, was still needed as

evidence, or already had been returned to Garcon’s designee, the district court

properly denied Garcon’s Rule 41(g) motion.

                                         III.

      A district court may direct a magistrate to prepare an R & R containing

proposed findings of fact and a recommended disposition with respect to a

dispositive motion. 28 U.S.C. § 636(b)(1). The parties have 14 days from the day

on which they receive the R & R to file objections. Id. The district court must

conduct a de novo review of those portions of the R & R to which an objection is

made. Id.

      In this case, the district court did not afford Garcon a full 14 days to object

to the R & R. Nevertheless, under the particular circumstances of this case, we

conclude that the district court’s procedural error was harmless because all of

Garcon’s objections to the R & R were meritless. Garcon’s objections regarding

the United States currency, the identification cards, the Audi A6, and the 40 loose

photographs fail for the reasons described above. Garcon’s objections concerning

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the plastic bin, the handcuffs, the soil compressor, and the hydraulic jack likewise

lacked merit. Garcon did not present any evidence to contradict the government’s

assertion that the handcuffs and plastic bin had already been returned or would be

returned to his designee. With respect to the hydraulic jack and the soil

compressor, Garcon’s only argument was that the government had not presented

any evidence linking those items to illegal drugs. According to Agent Matthews’

affidavit, however, both items were found in close proximity to cocaine and drug

paraphernalia, and the soil compressor tested positive for the presence of cocaine.

Thus, the district court correctly concluded that the hydraulic jack and the soil

compressor were contraband. Since none of Garcon’s objections to the R & R

were meritorious, we conclude that the district court’s error in failing to consider

those objections was harmless.

      Accordingly, after review of the record and the parties’ briefs, we affirm the

denial of Garcon’s Fed.R.Crim.P. 41(g) motion.

      AFFIRMED.




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