                             UNITED STATES of America, Plaintiff-Appellee,

                                                       v.
                          Carlos Miguel POTES RAMIREZ, Defendant-Appellant.

                                                 No. 00-11432.

                                       United States Court of Appeals,
                                               Eleventh Circuit.

                                                Aug. 10, 2001.

Appeal from the United States District Court for the Southern District of Florida. (No. 94-00642-CR-LCN),
Lenore C. Nesbitt, Judge.
Before BARKETT and HULL, Circuit Judges, and LIMBAUGH*, District Judge.

        HULL, Circuit Judge:

        Appellant Carlos Miguel Potes Ramirez ("Potes Ramirez") appeals the district court's denial of his
motion for return of property, filed pursuant to Federal Rule of Criminal Procedure 41(e). The government

contends that the district court's denial of Potes Ramirez's motion should be affirmed because (1) Potes
Ramirez's notice of appeal from the district court's denial of his motion was untimely, and (2) the district court
had no jurisdiction to consider Potes Ramirez's motion because the property at issue has been destroyed.

Potes Ramirez argues that his notice of appeal was timely and that the district court should have exercised
its equitable jurisdiction over his motion. After review, we reverse and remand.

                                                 I. Background
        On November 25, 1995, Potes Ramirez was arrested by United States Customs officials and charged
with importation of cocaine, in violation of 21 U.S.C. § 952(a). At the time of his arrest, the government
seized from Potes Ramirez his military card, his Colombian citizenship card, and his navigation license and

other navigation-related papers.1 On February 28, 1995, Potes Ramirez pled guilty and was sentenced to 108
months in prison.
        On December 30, 1999, Potes Ramirez filed a motion for the return of the property seized by the




    *
     Honorable Stephen N. Limbaugh, U.S. District Judge for the Eastern District of Missouri, sitting by
designation.
    1
    At the time of Potes Ramirez's arrest, the government also seized his Colombian passport. The
passport was turned over to the Immigation and Naturalization Service and is not at issue in this case.
government, pursuant to Federal Rule of Criminal Procedure 41(e).2 On January 10, 2000, the government

responded that "[t]he four items listed by defendant in his Motion were destroyed by the Drug Enforcement
Administration on March 1, 1996." This responsive pleading was not verified, and no affidavits were filed.

          On January 18, 2000, the district court entered an order denying Potes Ramirez's Rule 41(e) motion.

The order stated that "the Court finds that the items requested by the defendant have been destroyed." On

February 1, 2000, Ramirez filed a motion for reconsideration, which was denied on February 10, 2000. On
March 16, 2000, Potes Ramirez filed a notice of appeal from the district court's denial of his Rule 41(e)

motion.

                                                 II. Discussion

A.        Timeliness of Notice of Appeal
          The government contends that this case is governed by the ten-day time period for appeal in criminal

cases rather than the sixty-day time period for appeal in civil cases. Specifically, the government argues that
Potes Ramirez's notice of appeal from the district court's denial of his Rule 41(e) motion was untimely
because it fell outside the ten-day period provided by Federal Rule of Appellate Procedure 4(b)(1)(A)(i) for

filing a notice of appeal in a criminal case.3 Potes Ramirez contends that his notice of appeal was timely


     2
     Rule 41(e) provides:

                  Motion for Return of Property. 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. If the motion is granted, the
                  property shall be returned to the movant, although reasonable conditions may be imposed
                  to protect access and use of the property in subsequent proceedings. If a motion for
                  return of property is made or comes on for hearing in the district of trial after an
                  indictment or information is filed, it shall be treated also as a motion to suppress under
                  Rule 12.

          Fed.R.Crim.P. 41(e).
     3
     Rule 4(b)(1)(A) provides:

                  In a criminal case, a defendant's notice of appeal must be filed in the district court within
                  10 days after the later of:

                          (i) the entry of either the judgment or the order being appealed; or

                          (ii) the filing of the government's notice of appeal.

          Fed. R.App. P. 4(b)(1)(A).
                  The government contends that Potes Ramirez's notice of appeal was untimely even with
because it fell within the sixty-day period provided by Federal Rule of Appellate Procedure 4(a)(1)(B) for

filing a notice of appeal in a civil case where the United States is a party.4 Because Potes Ramirez's notice
of appeal was filed outside the period provided by Rule 4(b)(1)(A)(i) but within the period provided by Rule
4(a)(1)(B), whether Potes Ramirez's notice of appeal was timely depends entirely upon which rule applies.

        Although this circuit has not answered this particular question,5 all other circuits to address the issue

have treated a motion for return of property filed after criminal proceedings have terminated as a civil

proceeding for equitable relief subject to the sixty-day appeal period in Rule 4(a)(1)(B). See United States

v. Bein, 214 F.3d 408, 412 n. 3 (3d Cir.2000) ("[W]e find that the time for appeal applicable to civil actions

should apply in the context of an appeal from a post-conviction decision on a Rule 41(e) motion and thus,

as the Beins appealed within 60 days of [the court's order denying their motion], their appeal is timely.");

United States v. Madden, 95 F.3d 38, 39 n. 1 (10th Cir.1996) (agreeing with its "sister circuits" that the

sixty-day period in Rule 4(a)(1)(B) applied to defendant's Rule 41(e) motion because there was no criminal

proceeding pending against the defendant); United States v. Garcia, 65 F.3d 17, 18 n. 2 (4th Cir.1995) ("We

agree with those circuits that have held that a motion for return of property, at least where no criminal

proceedings are pending, is a civil action against the United States. Consequently, the sixty-day period for



        the additional 30-day excusable neglect period afforded by Federal Rule of Appellate Procedure
        4(b)(4). Rule 4(b)(4) provides:

                 Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the
                 district court may—before or after the time has expired, with or without motion and
                 notice—extend the time to file a notice of appeal for a period not to exceed 30 days from
                 the expiration of the time otherwise prescribed by this Rule 4(b).
        Fed. R.App. P. 4(b)(4).
    4
     Rule 4(a)(1)(B) provides that, in a civil case:

                 When the United States or its officer or agency is a party, the notice of appeal may be
                 filed by any party within 60 days after the judgment or order appealed from is entered.

        Fed. R.App. P. 4(a)(1)(B).
    5
      Although this circuit has not previously determined whether a Rule 41(e) motion is governed by the
appeal period in Rule 4(b)(1)(A)(i) or Rule 4(a)(1)(B), we have previously held that a district court has
authority to exercise equitable jurisdiction over a Rule 41(e) motion brought after criminal proceedings
have terminated. See United States v. Martinez, 241 F.3d 1329, 1330-31 (11th Cir.2001) (holding that
"the district court could have asserted equitable jurisdiction over Martinez's [Rule 41(e) ] motion" even
though all criminal proceedings against Martinez had ended, and noting as support for that proposition
that "[s]ix other circuits have explicitly stated that district courts can assert jurisdiction to entertain Rule
41(e) motions made after the termination of criminal proceedings against the defendant. These circuits
have treated such motions as civil proceedings for equitable relief.").
appeals in civil actions in which the United States is a party, rather than the ten-day period for appeals in

criminal cases, applies here.") (citations omitted); United States v. Martinson, 809 F.2d 1364, 1367 (9th

Cir.1987) (holding sixty-day period in Rule 4(a)(1)(B) applies even though Rule 41(e) motion was filed in

defendant's criminal case and bore a criminal docket number).6
         We agree and hold that a Rule 41(e) motion filed after the termination of criminal proceedings is a

civil proceeding for equitable relief subject to the sixty-day appeal period in Rule 4(a)(1)(B). The
government does not dispute that Potes Ramirez filed his Rule 41(e) motion on December 30, 1999, after

criminal proceedings against him had terminated. His motion was therefore a civil proceeding subject to Rule

4(a)(1)(B)'s sixty-day limitations period for filing an appeal. Because the district court denied his Rule 41(e)
motion on January 18, 2000, Potes Ramirez's notice of appeal, filed on March 16, 2000, clearly fell within

this sixty-day period.7 His appeal was therefore timely.

B.       District Court's Equitable Jurisdiction
         The government contends that even if Potes Ramirez's Rule 41(e) motion is treated as a civil
proceeding for equitable relief and his notice of appeal was timely under Rule 4(b)(1)(B)(i), the district court

correctly denied Potes Ramirez's motion because the property sought in his motion had been destroyed.8
         When, as here, a Rule 41(e) motion is filed after criminal proceedings have terminated, "the person
from whom the property was seized is presumed to have a right to its return, and the government must

demonstrate that it has a legitimate reason to retain the property." United States v. Chambers, 192 F.3d 374,

377 (3rd Cir.1999). Although the government alleges in its pleadings that the property sought by Potes

Ramirez was destroyed, these pleadings are not verified and no supporting affidavits have been filed. There



     6
      Some courts have treated orders resolving motions under Rule 41(e) as civil for purposes of appeal,
regardless of whether the motion is filed during criminal proceedings or after criminal proceedings have
terminated. See, e.g., Hunt v. United States Dep't of Justice, 2 F.3d 96, 97 (5th Cir.1993); United States
v. Taylor, 975 F.2d 402, 403 (7th Cir.1992). Unlike these courts, we hold only that a Rule 41(e) motion
filed after the termination of criminal proceedings is a civil proceeding for equitable relief subject to the
60-day appeal period in Rule 4(a)(1)(B).
     7
     Because Potes Ramirez's notice of appeal was filed 57 days after the district court's order dated
January 18, 2000, denying his Rule 41(e) motion, we need not consider the effect, if any, of his motion
for reconsideration.
     8
     We review de novo a district court's denial of a Rule 41(e) motion for return of property. See United
States v. Castro, 883 F.2d 1018, 1019 (11th Cir.1989). We also review de novo a district court's
determination that it lacks the authority to exercise equitable jurisdiction. See Martinez, 241 F.3d at
1330.
is no evidence in the record that Potes Ramirez's property was destroyed. Therefore the government has not

met its burden in this case, and the district court was incorrect to deny Potes Ramirez's motion without

requiring the government to submit at least some evidence of the property's destruction. See, e.g., id. at 377-

78 ("The government must do more than state, without documentary support, that it no longer possesses the

property at issue."); Mora v. United States, 955 F.2d 156, 158 (2d Cir.1992) ("Research has revealed no

authority for the proposition that a district court must rely on a representation, made by the government or

any other litigant for that matter. Instead, in making a determination, a trial court must rely on the evidence
before it."). We leave it to the district court's discretion on remand to determine how the government should

present evidence of the property's destruction.
        Even if the district court determines upon remand based on evidence presented by the government

that Potes Ramirez's property has been destroyed, this Court has held that a district court can exercise

equitable jurisdiction over a Rule 41(e) motion filed after the termination of criminal proceedings. See United

States v. Martinez, 241 F.3d 1329, 1330 (11th Cir.2001) (holding that "the district court could have asserted

equitable jurisdiction over Martinez's motion for return of his property").
         In its briefs on appeal, the government contends that even if a district court has authority to exercise
equitable jurisdiction over a Rule 41(e) motion filed after the termination of criminal proceedings, the district

court should not exercise its equitable jurisdiction in this case because Potes Ramirez delayed more than four
years before requesting the return of the seized items. While the doctrine of laches is pertinent and should
be considered, we leave it to the district court to consider it in the first instance, as well as whether Potes

Ramirez is entitled to an equitable remedy.

         If the district court finds that Potes Ramirez's claim is not barred by laches and that an equitable

remedy is appropriate, then the court has authority to fashion equitable relief. In the context of Rule 41(e)
motions, several circuit courts have remarked on a district court's authority to fashion an equitable remedy,

when appropriate, even if the property at issue has been lost or destroyed. See, e.g., Thompson v. Covington,

47 F.3d 974, 975 (8th Cir.1995) (noting that because the court has power to fashion equitable relief, "the case

is not mooted by the government's assertion that it cannot find Thompson's property"); Mora, 955 F.2d at

159 (noting that "[a]ssuming the property is gone, the question then is what relief may be granted");

Martinson, 809 F.2d at 1367-68 ("It is the historic purpose of equity to secure complete justice. The courts

will be alert to adjust their remedies so as to grant the necessary relief.") (citations omitted).
C.       Money Damages
         Potes Ramirez's Rule 41(e) motion did not mention money damages explicitly, but asked the district

court "in its discretion" to "grant such other and further relief it deems according protect [sic] its integrity and

judicial process." Potes Ramirez argues that the district court has equitable jurisdiction to fashion a remedy

for the destruction of his property, and notes that "[t]he circuits are divided about whether a defendant can
collect money damages if the government has improperly disposed of his property." He states that he "is not,

however, conceding that he is ineligible for such [money] damages."9 The government contends that

sovereign immunity protects the government from money damages resulting from the destruction of Potes
Ramirez's property.

         This Court has never determined whether the government is immune from suit for money damages

resulting from the destruction of property seized from a criminal defendant. A split exists in the circuits as

to whether money damages are available under Rule 41(e). Compare Mora, 955 F.2d at 160, and Martinson,

809 F.2d at 1368 (damages available), with United States v. Jones, 225 F.3d 468, 470 (4th Cir.2000), Bein,

214 F.3d at 413, and Pena v. United States, 157 F.3d 984, 986 (5th Cir.1998) (damages not available).

          Sovereign immunity protects the government from lawsuits for damages unless immunity is

expressly waived by statute. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). A

waiver of sovereign immunity must be expressly and unequivocally found in the statutory text and cannot

be implied. Id. Not only is there no express and unequivocal statutory waiver by Congress which would

apply to Ramirez's claims, but the Federal Tort Claims Act specifically prohibits money damages for "[a]ny
claim arising in respect of ... the detention of any goods, merchandise, or other property by any ... law

enforcement officer." 28 U.S.C. § 2680(c). The Supreme Court has reaffirmed that the United States has not

waived its sovereign immunity with respect to "a claim resulting from negligent handling or storage of

detained property." Kosak v. United States, 465 U.S. 848, 854, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984); see

also Schlaebitz v. United States Dep't of Justice, 924 F.2d 193 (11th Cir.1991) (affirming dismissal of federal

prisoner's claim for money damages based on United States Marshal's unauthorized release of prisoner's

luggage and its contents to a third party).

         For these reasons, we agree with the Third, Fourth and Fifth Circuits and hold that sovereign



     9
     Potes Ramirez's counsel during oral argument confirmed that Potes Ramirez wants to "leave open"
the option of money damages should it be determined that his property was indeed destroyed.
immunity protects the government from money damages sought under Rule 41(e).10

                                               III. Conclusion
         For the foregoing reasons, we reverse the district court's order denying Appellant Carlos Miguel Potes
Ramirez's Rule 41(e) motion for return of property and remand to the district court for proceedings consistent

with this opinion.

         REVERSED AND REMANDED.




    10
      Because Ramirez brought his claim under only Rule 41(e), we express no view as to whether
alternative legal avenues may afford Ramirez some relief. See Jones, 225 F.3d at 470 n. 3 (citing United
States v. James Daniel Good Real Property, 510 U.S. 43, 48, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993)).
