                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-1063
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

LAWRENCE STEVENS, also known
as SHADOW,
                                          Defendant-Appellant.
                        ____________
            Appeal from the United States District Court
                 for the Central District of Illinois.
        No. 02 CR 20037—Michael P. McCuskey, Chief Judge.
                        ____________
     SUBMITTED JULY 18, 2007—DECIDED AUGUST 31, 2007
                        ____________


 Before EASTERBROOK, Chief Judge, and RIPPLE and
ROVNER, Circuit Judges.
  RIPPLE, Circuit Judge. Lawrence Stevens, a federal inmate,
appeals from the denial of what he characterizes as a
“motion for return of property” in a criminal case that is
long over. For the reasons set forth in this opinion, we
vacate the judgment of the district court and remand
for further proceedings.
2                                                 No. 07-1063

                              I
                     BACKGROUND
   In March 2002, two armed men robbed the Land of
Lincoln Credit Union (“Credit Union”) in Decatur,
Illinois, of $113,000. Nine days later one of the suspected
robbers, Alban Woods, was found shot to death. The
investigation of the robbery and murder led the police to
Mr. Stevens, who was staying at a house in Decatur. The
Macon County Sheriff’s Department secured the
premises and later executed a search warrant for the
residence. The search resulted in the seizure of various
items, including crack cocaine, firearms and ammunition,
a postal scale covered with cocaine residue, a cellular
phone, $49,312 in currency1 and two cars—one Buick
Roadmaster and one Lincoln Towncar—that Mr. Stevens
had purchased with cash within days of the robbery.
  Mr. Stevens was charged in a three-count indictment
with federal drug and firearms offenses stemming from
the search in the Central District of Illinois. In 2004, a
jury found Mr. Stevens guilty of the drug and firearms
offenses, and he was sentenced to a term of 327 months’
imprisonment to be followed by a consecutive term of life
imprisonment. The district court also imposed a special



1
   The Government, in its response to Mr. Stevens’ motion for
return of property, identifies $15,750 recovered from Mr.
Stevens’ bedroom, $1,580 found hidden above ceiling tiles and
another $31,982 also hidden above ceiling tiles. Theses amounts
come to a total of $49,312. However, the response states that
the total currency found was “approximately $40,000.” The
Government offers no explanation for these discrepancies in
its response.
No. 07-1063                                                3

assessment of $300, but the sentence made no reference
to any restitution or forfeiture of the items seized as a
result of the search of his home. We affirmed the convic-
tion and sentence on direct appeal. See United States v.
Stevens, 380 F.3d 1021 (7th Cir. 2004).
  In November 2006, Mr. Stevens filed a motion under the
docket number of his criminal case under Federal Rule of
Criminal Procedure 41(g); he demanded return of unspeci-
fied property seized in connection with that prosecution.
Mr. Stevens attached a letter from the Illinois State’s
Attorney for Macon County, which informed him that
property, other than that identified in a state forfeiture
proceeding, had been handled by federal authorities. The
district court ordered a response, and the Government
replied that the motion should be denied on the ground
that it no longer possessed any of the items seized during
the search of Mr. Stevens’ Decatur residence. The Gov-
ernment stated that items seized had been disposed of as
follows:
   (1) Both cars had been forfeited judicially in proceed-
       ings in the Central District of Illinois.
   (2) The $15,750 found in Mr. Stevens’ room and the
       $1,580 found hidden above ceiling tiles had been
       used as evidence in Mr. Stevens’ criminal trial and
       subsequently turned over to the Macon County
       Sheriff’s Department for state forfeiture proceed-
       ings identified in the letter attached to Mr. Stevens’
       motion.
   (3) The cellular phone and postage scale had been
       used as evidence in Mr. Stevens’ federal criminal
       trial and subsequently had been destroyed by the
       clerk of the court.
4                                             No. 07-1063

    (4) The crack likewise had been used as evidence in
        Mr. Stevens’ federal criminal trial and subse-
        quently had been returned to the Macon County
        Sheriff’s Department, which, in turn, had de-
        stroyed the crack.
    (5) The guns and ammunition also had been used in
        Mr. Stevens’ federal criminal trial and subse-
        quently had been turned over to the Macon County
        Sheriff’s Department for use in its investigation
        into the murder of Woods, Mr. Stevens’ suspected
        confederate in the Credit Union robbery.
    (6) The $31,982 recovered from the ceiling tiles had
        been turned over to the Federal Bureau of Investi-
        gation (“FBI”) for its investigation into the rob-
        bery of the Credit Union and subsequently was
        returned to the Credit Union by the FBI.
The Government offered no evidence in support of these
assertions in its response brief.
  The Government also informed the district court that
Mr. Stevens’ motion must be treated as a civil proceeding
and, therefore, was governed by the Prison Litigation
Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321
(1996) (“PLRA”).
  The day after receiving the Government’s response
brief, the court denied Mr. Stevens’ motion. In the order
denying the motion, the court summarized the Govern-
ment’s “arguments” and stated that it agreed with them.
The court did not address the PLRA’s procedural require-
ments.
  Mr. Stevens then filed a reply to the Government’s
response. In this document, Mr. Stevens identified the
No. 07-1063                                                   5

specific items he wanted returned. These items included
the currency, cars, cellular phone and postage scale
identified in the Government’s response brief. Mr. Stevens
also identified several items of clothing and jewelry, a
pager and videos that he alleged also had been seized.
Further, Mr. Stevens asserted that no forfeiture actions
had been conducted with respect to his vehicles.
  After evaluating Mr. Stevens’ reply, the district court
concluded that it found “no reason to change its conclu-
sion” that Mr. Stevens was “not entitled to the relief
sought.” The court then denied as moot Mr. Stevens’
pending application to proceed in forma pauperis on
his motion for return of property.


                               II
                        DISCUSSION
  Mr. Stevens appeals the district court’s denial of his
motion for return of property. Rule 41(g) of the Federal
Rules of Criminal Procedure provides a mechanism by
which criminal defendants may recover property seized
by the Government.2 We have held that a federal prisoner
may employ Rule 41(g) post-trial to recover evidence that


2
    Federal Rule of Criminal Procedure 41(g) provides:
      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 the court grants the motion, the court must
      return the property to the movant, but may impose reason-
      able conditions to protect access to the property and its
      use in later proceedings.
6                                                      No. 07-1063

the Government no longer needs. See United States v. Sims,
376 F.3d 705, 708 (7th Cir. 2004). However, Rule 41(g)
permits only the recovery of property in the possession
of the Government. Therefore, if the Government no longer
possesses the property at issue, no relief is available under
Rule 41(g).3 See Okoro v. Callaghan, 324 F.3d 488, 491 (7th
Cir. 2003).


3
  The only proper object of a Rule 41(g) motion is recovery of
actual property seized. See United States v. Sims, 376 F.3d 705, 708
(7th Cir. 2004); Okoro v. Callaghan, 324 F.3d 488, 491 (7th Cir.
2003). Such a motion will not support a claim against the
Government for restitution or recovery of the proceeds of a
forfeiture proceeding.
  We have recognized that a federal prisoner may assert a civil
action challenging the forfeiture of property on due process
grounds based on the allegation that he had not received notice
of the forfeiture proceedings. See United States v. Howell, 354 F.3d
693, 695 (7th Cir. 2004) (comparing a civil action to recover
property taken without due process of law with a Rule 41(g)
motion for the return of property). At least two of our sister
circuits have held that district courts should construe a Rule
41(g) motion for the return of property as a civil complaint
alleging a due process violation when the motion seeks to
challenge a forfeiture rather than to recover specific property.
See, e.g., Taylor v. United States, 483 F.3d 385, 387 (5th Cir. 2007);
United States v. Clark, 84 F.3d 378, 381 (10th Cir. 1996). Although
we have not addressed that particular issue, we need not
determine whether the district court should have construed
Mr. Stevens’ motion as a complaint in a new civil case. Even
though Mr. Stevens does assert that he received no notice of any
forfeiture proceedings, his arguments before the district court
and in this court reveal that he seeks to recover specific prop-
erty, not restitution or the proceeds from a forfeiture proceeding.
Indeed, Mr. Stevens denies that any forfeiture proceeding
actually occurred.
No. 07-1063                                                       7

   The Government contends, and the district court agreed,
that Mr. Stevens was not entitled to the return of property
under Rule 41(g) because the Government no longer
possesses the property he seeks to recover. However,
whether the Government still possesses the property at
issue is a question of fact. Rule 41(g) provides that the
district court “must receive evidence on any factual issue
necessary to decide the motion.” Fed. R. Crim. P. 41(g). As
this provision makes clear, any factual determinations
supporting the court’s decision must be based on evidence
received. This requirement does not mean that a district
court must conduct an evidentiary hearing to resolve all
factual disputes. It does require, however, that the dis-
trict court receive evidence to resolve factual disputes. See
United States v. Albinson, 356 F.3d 278, 281-82 (3d Cir. 2004).
Such evidence may come, for example, in the form of
sworn affidavits or documents verifying the chain of
custody of particular items. Id. at 282.
  Here, the district court received no evidence regarding
the Government’s possession of the property Mr. Stevens
sought to recover. The court stated simply that it agreed
with the Government’s arguments in its brief. However,
arguments in a Government brief, unsupported by docu-
mentary evidence, are not evidence.4 See Campania Mgmt.


4
  Although the district court would be entitled to take judicial
notice of the federal forfeiture proceedings related to the
vehicles seized and the state forfeiture proceeding related to a
portion of the cash seized, see Fed. R. Evid. 201(a)-(b) (providing
for judicial notice of adjudicative facts “capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned”); Opoka v. INS, 94 F.3d 392,
                                                      (continued...)
8                                                    No. 07-1063

Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir. 2002)
(“[I]t is universally known that statements of attorneys
are not evidence.”); see also Albinson, 356 F.3d at 281
(“[T]he government must do more than state, without
documentary support, that it no longer possesses the
property at issue.” (citing United States v. Chambers, 192
F.3d 374, 377-78 (3d Cir. 1999)). As such, the district court
failed to receive evidence to support its factual deter-
minations as required by Rule 41(g).
  We add that we have stated previously that a Rule 41(g)
motion is a civil action for purposes of the PLRA, and thus
subject to the PLRA’s provisions on remand. See United
States v. Howell, 354 F.3d 693, 695 (7th Cir. 2004); see also
United States v. Jones, 215 F.3d 467, 469 (4th Cir. 2000) (per
curiam).


                          Conclusion
  Accordingly, we vacate the judgment of the district
court and remand for further proceedings consistent
with this opinion. On remand, the district court should
receive evidence and make the appropriate factual findings
with respect to the current status of the property
Mr. Stevens seeks to recover.
                                     VACATED and REMANDED


4
  (...continued)
394 (7th Cir. 1996) (recognizing proceedings of state and fed-
eral courts as the proper subject of judicial notice), the district
court did not state in its order that it had done so in this
case, nor did the Government request that it do so. In any event,
even if the district court were to take judicial notice of these
proceedings, factual issues remain as to the other property
seized.
No. 07-1063                                           9

A true Copy:
      Teste:

                     _____________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




               USCA-02-C-0072—8-31-07
