                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2004

USA v. Albinson
Precedential or Non-Precedential: Precedential

Docket No. 01-1265




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"USA v. Albinson" (2004). 2004 Decisions. Paper 1036.
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                        PRECEDENTIAL     ERIC B. HENSON, ESQUIRE
                                         (ARGUED)
        UNITED STATES                    Office of United States Attorney
       COURT OF APPEALS                  615 Chestnut Street, Suite 1250
     FOR THE THIRD CIRCUIT               Philadelphia, Pennsylvania 19106
                                                Attorney for Appellee

             No. 01-1265
                                                OPINION OF THE COURT

  UNITED STATES OF AMERICA
                                         SCIRICA, Chief Judge.
                   v.
                                                Stanley A. Albinson appeals the
     STANLEY A. ALBINSON,                denial of his motion for return of
                      Appellant          property filed under Fed. R. Crim. P.
                                         41(g) (formerly Fed. R. Crim. P. 41(e)) 1
                                         without an evidentiary hearing. The
         On Appeal from the              government asserted that it no longer
  United States District Court for the   retained possession of the seized
   Eastern District of Pennsylvania      property. At issue is whether the District
    D.C. Criminal No. 95-cr-00019        Court was required to conduct an
   (Honorable Lowell A. Reed, Jr.)       evidentiary inquiry as set forth in United
                                         States v. Chambers, 192 F.3d 374 (3d
                                         Cir. 1999). We will reverse and remand.
      Argued October 28, 2003

                                            1
   Before: SCIRICA, Chief Judge,             Fed. R. Crim. P. 41 was amended in
     NYGAARD and AMBRO,                  2002 “as part of a general restyling of the
           Circuit Judges                Criminal Rules to make them more easily
                                         understood and to make style and
       (Filed January 27, 2004)          terminology consistent throughout the
                                         rules.” See Fed. R. Crim. P. 41 advisory
JENNIFER B. SAULNIER, ESQUIRE            committee notes. As a result of the 2002
(ARGUED)                                 amendments, the previous Fed. R. Crim.
Jones Day                                P. 41(e) now appears with minor stylistic
One Mellon Bank Center                   changes as Rule 41(g). For consistency,
500 Grant Street, Suite 3100             we will refer only to Fed. R. Crim. P.
Pittsburgh, Pennsylvania 15219           41(g) even though Albinson filed his
       Attorney for Appellant            motion under Fed. R. Crim. P. 41(e) and
                                         most of the relevant case law refers to
                                         the previous rule.
                    I.                        App. 124. Albinson alleged he had been
                                              deprived of property by the government
       On February 24, 1994, FBI and
                                              and that the seizures were “made by
Naval Investigative Service agents acting
                                              government agents/employees.” Id. On
under a search warrant seized property2
                                              August 2, 1998, Albinson filed a pro se
from the garage and residence of Stanley
                                              motion for summary judgment on his
A. Albinson at 69 Mine Run Road in
                                              Rule 41(g) motion. The government did
Limerick, Pennsylvania. On February
                                              not respond to either motion.
10, 1995, Albinson was arrested for the
unauthorized sale of United States                    On May 14, 1999, the District
property in violation of 18 U.S.C. § 641.     Court entered a default judgment in favor
The indictment alleged Albinson sold          of Albinson, and ordered the government
United States property to government          to return the seized property by June 15,
agents on six occasions in 1993. The          1999. The District Court also ordered
indictment did not, however, charge           the government to file a “verified
Albinson with any offense related to the      declaration based on first hand
property seized during the 1994 search.       knowledge” for each item that “had been
                                              lost, destroyed [or] misplaced,”
       On April 24, 1995, Albinson
                                              describing the “reasons why the property
entered a guilty plea on all six counts of
                                              cannot be returned . . . to hold an
the indictment. Albinson subsequently
                                              evidentiary hearing thereon.” App. 16.
attempted to withdraw his guilty plea, but
                                              On June 15, 1999, the government
the District Court denied his motion. On
                                              responded that it was “physically unable
February 18, 1998, Albinson was
                                              to comply” with the order, because
sentenced to 15 months in prison, plus
                                              certain property had been returned to
three years of supervised release.
                                              Albinson, and the remaining items had
       On April 21, 1998, while serving       been either acquired by third parties or
his sentence, Albinson filed a pro se         destroyed. App. 146. The government
motion for return of property under Fed.      submitted no documentary evidence in
R. Crim. Pro. 41(g). Albinson sought          support of its response. It simultaneously
return of “every item listed on the seizure   filed a motion for reconsideration
warrant/property list and those items         requesting an opportunity to respond to
seized where no receipt was given.”           Albinson’s motions. The District Court
                                              granted the motion for reconsideration,
                                              and the government responded to
   2
    The inventory of seized property lists    Albinson’s motions.
over 200 items, including floor tiles, tool
                                                     On January 16, 2001, the District
kits, ethanol, batteries, a pump and
                                              Court denied Albinson’s Rule 41(g)
motor, ovens, stainless steel sinks,
                                              motion without conducting an
computer modems, rolodex records, ear
                                              evidentiary hearing. United States v.
plugs and trousers. Supp. App. 29-42.
Albinson, No. 95-19-01, 2001 U.S. Dist.       F.3d at 376. Under Fed. R. Crim. P.
LEXIS 374 (E.D. Pa. Jan. 17, 2001).           41(g),
The District Court found the government
                                                    A person aggrieved by an
failed to carry its burden of proving a
                                                    unlawful search and
“cognizable claim of ownership or right
                                                    seizure of property or by
of possession” in the seized property, but
                                                    the deprivation of property
denied the motion nevertheless. Id. at
                                                    may move for the
*7. The District Court determined the
                                                    property’s return . . . . The
government had irrevocably lost or
                                                    court must receive
destroyed the seized property, and
                                                    evidence on any factual
therefore this Court’s holding in United
                                                    issue necessary to decide
States v. Bein, 214 F.3d 408 (3d Cir.
                                                    the motion. If it grants the
2000), rendered it “powerless” to award
                                                    motion, the court must
monetary damages in lieu of returning
                                                    return the property to the
the seized property. Albinson, 2001 U.S.
                                                    movant, but may impose
Dist. LEXIS 374, at *15. The District
                                                    reasonable conditions to
Court concluded that an evidentiary
                                                    protect access to the
hearing was “not required in light of the
                                                    property and its use in later
futile outcome.” Id. at *16.
                                                    proceedings.
       Albinson timely filed this appeal. 3
                                              Fed. R. Crim. P. 41(g) (emphasis added).
                    II.                       At the conclusion of a criminal
                                              proceeding, the evidentiary burden for a
                    A.
                                              Rule 41(g) motion shifts to the
        Property seized by the government     government to demonstrate it has a
as part of a criminal investigation “must     legitimate reason to retain the seized
be returned once criminal proceedings         property. Chambers, 192 F.3d at 377.
have concluded, unless it is contraband       The burden on the government is heavy
or subject to forfeiture.” 4 Chambers, 192    because there is a presumption that the
                                              person from whom the property was
                                              taken has a right to its return. Id.
   3
    We exercise appellate jurisdiction               The District Court held, and the
over the District Court’s denial of the       parties do not dispute, that the
Rule 41(g) motion under 28 U.S.C. §           government failed to meet its burden on
1291. United States v. Pantelidis, 335        Albinson’s Rule 41(g) motion. Albinson,
F.3d 226, 233-34 (3d Cir. 2003).              2001 U.S. Dist. LEXIS 374, at *9.
                                              Indeed, the District Court concluded that
   4
    It is undisputed that the property        Albinson’s “motion probably would be
seized during the 1994 search is neither      granted as to the items on the inventory
contraband nor subject to forfeiture.
lists,” but for the perceived futility of      Chambers, 192 F.3d at 376.
granting such an order. Id. Albinson
                                                                   B.
argues the District Court abused its
discretion by denying his Rule 41(g)                   Rule 41(g) directs a district court
motion without conducting an                   to “receive evidence” on issues of fact
evidentiary hearing and instead relying        necessary to dispose of the motion. Fed.
solely on the government’s                     R. Crim. P. 41(g). We provided more
representations that it no longer retained     specific guidance on the scope of this
possession of the seized property.             evidentiary inquiry in United States v.
Albinson contends that even if the             Chambers, 192 F.3d 374 (3d Cir. 1999).
District Court properly determined that        In that case, petitioner Chambers filed a
the seized property is “physically             Rule 41(g) motion for return of property
unavailable,” he is entitled to a hearing to   seized by the government during his
determine what happened to the property.       arrest. Id. at 375. The government
The government responds that because           argued Chambers’ motion was moot
Albinson failed to contest its                 because it no longer retained possession
representations in the District Court,         of the seized property. Id. The district
there were no disputed issues of fact          court agreed, and denied Chambers’
which required an evidentiary hearing.         motion based on representations by the
                                               government that the property at issue had
       We review the District Court’s
                                               been forfeited, repossessed, returned or
decision to “exercise its equitable
                                               destroyed, and therefore could not be
jurisdiction” under Fed. R. Crim. P.
                                               returned. Id. We reversed on appeal,
41(g) for abuse of discretion.5
                                               concluding that the “government can not
                                               defeat a properly filed motion for return
   5                                           of property merely by stating that it has
     We do not reach the merits of the
                                               destroyed the property or given the
District Court’s decision to deny
                                               property to third parties.” Id. at 377.
Albinson’s Rule 41(g) motion. On
                                               Rather, “[t]he government must do more
appeal, we consider only the District
                                               than state, without documentary support,
Court’s decision to not conduct an
                                               that it no longer possesses the property at
evidentiary hearing prior to deciding
                                               issue.” Id. at 377-78.
Albinson’s Rule 41(g) motion, and we
review that decision for abuse of                     We also held that a district court
discretion. We note, however, that other       must make certain evidentiary inquiries
courts of appeals have reviewed de novo        before deciding a Rule 41(g) motion for
the grant or denial of Rule 41(g) motions      return of property:
after the conclusion of criminal
                                                             If . . . the
proceedings. See, e.g., United States v.
                                                      government asserts that it
Potes, 260 F.3d 1310, 1314 n.8 (11th Cir.
                                                      no longer has the property
2001).
sought, the District Court must             sufficient to support a fact finder’s
determine, in fact, whether the             determination. Chambers, however,
government retains possession of            requires the district court to hold an
the property; if it finds that the          evidentiary hearing on “any disputed
government no longer possesses              issue of fact necessary to the resolution
the property, the District Court            of the motion,” which may include
must determine what happened to             determining “what happened” to the
the property. The District Court            seized property. Id. at 378.
must hold an evidentiary hearing
                                                    The District Court expressly
on any disputed issue of fact
                                            acknowledged the Chambers inquiry, but
necessary to the resolution of the
                                            decided a hearing was “not required in
motion . . . .
                                            light of the futile outcome.” Albinson,
               . . . If the District        2001 U.S. Dist. LEXIS 374, at *16. The
       Court concludes that the             District Court determined monetary
       government’s actions in              damages were the only possible remedy
       either regard were not               based on the government’s
       proper, it shall determine           representations that it no longer retained
       what remedies are                    possession of the seized property.
       available.                           Recognizing our decision in United
                                            States v. Bein, 214 F.3d 408, 415 (3d Cir.
Id. at 378 (citations omitted).
                                            2000), 6 prohibits monetary damages on a
         We note at the outset that a       Rule 41(g) motion, the District Court
district court need not necessarily         concluded there was “no other relief to
conduct an evidentiary hearing on every     which petitioner is entitled under Rule
Rule 41(g) motion. The rule only directs    41[g].” Albinson, 2001 U.S. Dist.
a district court to “receive evidence on    LEXIS 374, at *17.
any factual issue necessary to decide the
                                                   The District Court found the Bein
motion.” Fed. R. Crim. P. 41(g).
                                            prohibition on monetary damages
Likewise, Chambers does not mandate
the method by which a district court must
“determine, in fact, whether the
                                               6
government retains possession of the            Two of our sister circuits have
property,” so long as this determination    suggested that a district court may award
rests on a firmer basis than the            monetary damages as an equitable
government’s unsubstantiated assertions     remedy on a Rule 41(g) motion. See,
that it “no longer possesses the property   e.g., Mora v. United States, 955 F.2d
at issue.” Id. at 377-78. For example,      156, 159-60 (2d Cir. 1992); United States
affidavits or documentary evidence, such    v. Martinson, 809 F.2d 1364, 1368 (9th
as chain of custody records, may be         Cir. 1987). But we have concluded to
                                            the contrary.
“undermined Chambers’ hearing               Id. at *14-15.
requirement,” 7 id. at *13, and created a
                                                    Although Bein forecloses certain
“Catch-22” in cases in which the
                                            remedies for Rule 41(g) petitioners, it
government asserts it has lost or
                                            does not necessarily create a
destroyed the seized property:
                                            jurisprudential conundrum. An
       On the one hand,                     evidentiary inquiry ensures that a district
       Chambers demands that                court has sufficient information to decide
       this Court engage in an              a Rule 41(g) motion. At the same time, it
       inquiry as to what                   provides an opportunity for a Rule 41(g)
       happened to the lost or              petitioner to demand the government
       missing property and                 return property to which he is rightfully
       decide on an appropriate             entitled. This inquiry assists an
       remedy. On the other                 aggrieved party in identifying and
       hand, Bein forecloses the            recovering property seized in the course
       only appropriate remedy in           of a criminal investigation.
       a case where the
                                                    As the District Court correctly
       government has lost or
                                            recognized, an evidentiary hearing
       destroyed personal
                                            potentially offers certain beneficial
       property: money damages.
                                            effects. For example, a “hearing might
       In other words, Bein makes
                                            spark a government investigation that
       the inquiry required by
                                            results in the discovery or recovery of
       Chambers an exercise in
                                            property the government initially thought
       futility, because even if the
                                            to be lost or destroyed.” Id. at *15 n.8.
       Court were to conclude
                                            Alternatively, an evidentiary hearing
       after a hearing that a Rule
                                            “might result in the government being
       41[g] petitioner was
                                            able to prove that the property was
       entitled to the return of
                                            owned by the government,” and therefore
       property, and that the
                                            not subject to return. Id. In either case,
       government improperly
                                            the prospect of a hearing provides an
       disposed of the property,
                                            incentive for the government to retain
       the Court is powerless to
                                            accurate records of seized property,
       award the only available
                                            consistent with its regulatory
       remedy.
                                            obligations.8

   7
    The District Court suggested that
                                               8
“[a]n argument could be made that Bein          Department of Justice regulations
essentially attempts to overrule            require the FBI to maintain detailed
Chambers.” Albinson, 2001 U.S. Dist.        chain of custody records for all seized
LEXIS 374, at *16 n.9.                      property. See, e.g., 41 C.F.R. § 128-
        Bein, by contrast, prescribes a       defeat a Rule 41(g) motion simply by
limitation on the remedies available to a     asserting that it no longer retains
Rule 41(g) petitioner by precluding the       possession of the property would
award of monetary damages. This               frustrate the purpose of the Fed R. Civ.
limitation is “not inconsistent” with the     P. 41(g) evidentiary inquiry set forth in
requirement that a district court conduct     Chambers. The District Court was
an evidentiary hearing before deciding a      justifiably concerned with the “harsh
Rule 41(g) motion. Bein, 214 F.3d at          consequences” of such a result. Id. at
416. Although Chambers directs a              *17.
district court to determine what remedies
                                                                  C.
are available to a Rule 41(g) petitioner,
Bein “did not consider whether such                   The government argues there were
available remedies would include an           no “disputed issues of fact” that would
award of monetary damages.” Id.               require the District Court to conduct an
                                              evidentiary hearing because Albinson did
        Moreover, the question of
                                              not challenge the government’s
remedies should arise only after the
                                              assertions that it no longer retained
district court has investigated the status
                                              possession of the seized property.
of the seized property. While
                                              Albinson responds that a hearing is
representations by the government may
                                              required because the government’s
be credible and may suggest that “the
                                              unsupported declaration did not resolve
likelihood of actual recovery of the
                                              all disputed issues of fact. Specifically,
property [is] very slim,” Albinson, 2001
                                              Albinson argues the government’s
U.S. Dist. LEXIS 374, at *15 n.8, a fact
                                              declaration did not identify the third-
finder may not deny a Rule 41(g) motion
                                              parties who allegedly acquired the
based on a prospective assessment of the
                                              property, the persons who destroyed or
remedies that might (or might not) be
                                              distributed the property, or the property
available. Allowing the government to
                                              that was allegedly returned.
                                                     As mentioned, neither the Federal
50.101 (“Each bureau shall be                 Rule nor Chambers makes an evidentiary
responsible for establishing and              hearing a prerequisite for deciding a Rule
maintaining inventory records of its          41(g) motion. Chambers only requires
seized personal property to ensure that . .   an evidentiary hearing on “any disputed
. (d) A well documented chain of custody      issue of fact necessary to the resolution
is kept; and (e) All information in the       of the motion.” 192 F.3d at 378. But
inventory records is accurate and             Chambers also makes clear that “[t]he
current.”). If the FBI maintains these        government must do more than state,
chain of custody records as required by       without documentary support, that it no
regulation, the burden of an evidentiary      longer possesses the property at issue.”
inquiry is significantly reduced.
Id. at 377-78. That standard was not          amendment may be particularly
satisfied here. Moreover, even if the         appropriate on the facts of this case.9
District Court properly determined the
                                                                  IV.
government no longer possessed the
property, it did not address the remainder            To summarize, the able District
of the Chambers inquiry regarding “what       Court did not conduct the full evidentiary
happened to the property.” Id. at 378. A      inquiry required by Chambers in
district court may be able to make these      deciding Albinson’s Rule 41(g) motion.
determinations based upon affidavits or       The District Court determined
verified documentary evidence. But if         Albinson’s property was unavailable
there are disputed issues of fact relating    based upon the government’s
to the status of the property or what         unsubstantiated assertions, and made no
happened to it, the district court should     determination regarding what happened
hold an evidentiary hearing. This             to the seized property. Whether these
decision is left to the sound discretion of   determinations ultimately require an
the District Court.
                   III.
                                                 9
                                                  The allegations of a pro se litigant
        Finally, Albinson argues that if an
                                              are generally held to a “less stringent
evidentiary inquiry reveals individual
                                              standard” than formal pleadings prepared
government agents improperly disposed
                                              by a lawyer. Mitchell v. Horn, 318 F.3d
of his property, he is entitled to amend
                                              523, 529 (3d Cir. 2003) (citing Haines v.
his Rule 41(g) motion to state alternative
                                              Kerner, 404 U.S. 519, 520 (1972)). Fed.
claims consistent with this Court’s
                                              R. Crim. P. 41(g) motions are civil in
decision in Bein. Specifically, Albinson
                                              nature, and should be treated as a “civil
argues that if the evidentiary inquiry
                                              complaint.” United States v. McGlory,
reveals facts indicating that specific
                                              202 F.3d 664, 670 (3d Cir. 2000)
government agents violated his
                                              (citation omitted). Therefore, a pro se
constitutional rights, he should be able to
                                              Rule 41(g) motion should be liberally
amend his pleadings to state a Bivens
                                              construed to allow the assertion of
complaint. The government responds
                                              alternative claims. “[A]ffirming the
that it was not error to deny Albinson’s
                                              denial [of a pro se Rule 41(e) motion]
motion without a hearing because
                                              without leave to amend would have the
Albinson neglected to assert alternative
                                              same effect as a 12(b)(6) dismissal of a
claims in the District Court. While we
                                              pro se complaint,” which are generally
leave this matter also to the sound
                                              disfavored. Pena v. United States, 157
discretion of the District Court, we note
                                              F.3d 984, 987 (5th Cir. 1998) (reversing
that, depending on what is adduced
                                              dismissal of pro se petitioner’s Rule
through the evidentiary inquiry,
                                              41(g) motion without leave to amend to
                                              state a Bivens action).
evidentiary hearing or merely the
submission of affidavits and
documentary evidence, we leave to the
sound discretion of the District Court.
       For the foregoing reasons, we will
reverse and remand for proceedings
consistent with this opinion.
