                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                           March 23, 2010
                                     TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellant,

           v.                                                No. 09-3183
                                                     (D.C. No. 2:06-20142-JWL-3)
 EDUARDO SOTO-DIARTE,                                          (D. Kan.)

           Defendant-Appellee.


                                  ORDER AND JUDGMENT*


Before, HARTZ, SEYMOUR and EBEL, Circuit Judges.


       In 2006, Appellant Eduardo Soto-Diarte pled guilty to a felony drug conviction

and was sentenced to 135 months’ imprisonment. During the course of its investigation

into Soto-Diarte’s activities, the government apparently seized numerous firearms,

munitions, and other gun-related items from Soto-Diarte. Once Soto-Diarte’s criminal

proceedings had terminated, he filed a pro se Motion for Return of Personal Property




       *
         After examining appellant=s brief and the 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) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
under Federal Rule of Criminal Procedure 41(g)1 that sought the return or replacement of

the seized property. The district court denied this motion without conducting an

evidentiary hearing. Soto-Diarte now appeals that decision with respect to the firearms.

On appeal, he requests the government return the firearms (or replacements of the

firearms) to him or a designated person, or, in the alternative, provide him with the fair

market value of the seized firearms. Exercising jurisdiction under 28 U.S.C. § 1291, we

vacate the district court’s order and remand for further proceedings consistent with this

order.

         A district court should exercise its equitable power to grant relief only if the Rule

41(g) movant shows “irreparable harm and an inadequate remedy at law.” United States

v. Copeman, 458 F.3d 1070, 1071 (10th Cir. 2006) (quotations and citation omitted).

Once criminal proceedings have terminated, however, “the person from whom the

property was seized is presumed to have a right to its return, and the government must


1
    Rule 41(g) provides,

         Motion to Return Property. A person aggrieved by an unlawful search
         and seizure of property or by the deprivation of property may move for the
         property's return. The motion must be filed in the district where the
         property was seized. The court must receive evidence on any factual issue
         necessary to decide the motion. If it 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


Prior to amendments in 2002, the substance of Rule 41(g) was contained in former Rule
41(e). The changes made in these amendments were stylistic only. See United States v.
Copeman, 458 F.3d 1070, 1071 n.1 (10th Cir. 2006) (“What was formerly Rule 41(e) is
now Rule 41(g), with only stylistic changes.”)

                                                2
demonstrate that it has a legitimate reason to retain the property.” United States v.

Rodriguez-Aguirre, 264 F.3d 1195, 1213 n.14 (10th Cir. 2001) (quotations and citation

omitted).

       We review questions of law relating to a Rule 41(g) motion de novo, see United

States v. Howell, 425 F.3d 971, 973 (11th Cir. 2005), but we review the district court’s

weighing of equitable considerations and its decision to deny a Rule 41(g) motion for an

abuse of discretion, see Copeman, 458 F.3d. at 1072.

       We decline to reach the merits of Soto-Diarte’s appeal. Soto-Diarte attached to his

brief documents indicating that the firearms at issue have been destroyed. He did not file

these documents with the district court, though he appears to have been in possession of

them. Likewise, the government made no effort to inform the district court that the

firearms had apparently been destroyed, though the documents filed by Soto-Diarte were

government-authored, and the government does not appear to disagree that the firearms

were already destroyed before Soto-Diarte filed his Rule 41(g) motion. Given these

circumstances, the district court made no finding as to the status of the firearms and

operated on what now appears to be an inaccurate belief that the government retains

possession of them.

       Since Soto-Diarte and the government have only now raised an issue about the

status of the seized firearms, we must remand the matter to the district court to make

findings regarding whether the government possesses the property. See Clymore v.

Untied States, 415 F.3d 1113, 1120 (10th Cir. 2005) (“Because the status of the property

was raised for the first time at oral argument, it is necessary to remand the matter to the

                                              3
district court for findings regarding the government’s possession of property.”). If the

district court concludes the government retains possession of the firearms, it may proceed

to rule on Soto-Diarte’s Rule 41(g) motion. Should the district could conclude, however,

that the government no longer possesses the seized firearms, the district court has two

options. First, Rule 41(g) is not a proper vehicle for obtaining monetary compensation

for seized property no longer in the government’s possession. See Clymore, 415 F.3d at

1120 (concluding that “sovereign immunity bars monetary relief in a Rule 41(e)

proceeding when the government no longer possesses the property”). Thus, the district

court may simply dismiss Soto-Diarte’s Rule 41(g) motion for a lack of subject matter

jurisdiction. See Clymore, 415 F.3d at 1120 (“Should the district court determine on

remand that the government is no longer in possession of the property, it should vacate its

prior order granting the United States summary judgment and dismiss [the movant’s Rule

41(g) motion] for lack of subject matter jurisdiction.”). Alternatively, the district court

could grant the movant an opportunity to assert an alternative claim for monetary relief,

an approach that is particularly appropriate in the case of pro se movants such as Soto-

Diarte. See United States v. Hall, 269 F.3d 940, 943 (8th Cir. 2001) (“[W]hen a district

court conducting a Rule 41(e) proceeding learns that the government no longer possesses

property that is the subject of the motion to return, the court should grant the movant

(particularly a movant proceeding pro se . . . ) an opportunity to assert an alternative

claim for money damages.”).




                                              4
       For the foregoing reasons, we VACATE the district court’s order and REMAND

for further proceedings not inconsistent with this order.2



                                                  Entered for the Court


                                                  David M. Ebel
                                                  Circuit Judge




2
 We have not considered, and decline to accept, Soto-Diarte’s reply brief because it was
not timely filed.
                                             5
