                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 15-7971


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

NESTOR VLADAMIR SANDOVAL ROCA, a/k/a Poeta, a/k/a William
Bladamir Mexmurillo Zapatero, a/k/a Stanley Turcio Palma,
a/k/a William Santander Mendoza, a/k/a Hamilton Bachelet
Soto, a/k/a Benjamil Ortiz, a/k/a William Zapatero, a/k/a
Max, a/k/a Lzandra Santander Orester, a/k/a Jorge Alberto
Medina Alonso,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:10-cr-00472-RWT-1; 8:14-cv-00885-RWT)


Submitted:   January 31, 2017                 Decided:    February 10, 2017


Before KEENAN    and   FLOYD,    Circuit   Judges,       and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Geoffrey J. Michael, Lindsay Vance Smith, ARNOLD & PORTER LLP,
Washington, D.C., for Appellant. Arun G. Rao, Assistant United
States Attorney, Alan Rozenshtein, Special Assistant United
States   Attorney,  OFFICE   OF  THE UNITED  STATES  ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Nestor Vladamir Sandoval Roca appeals the district court’s

order denying as moot his Fed. R. Crim. P. 41(g) motion for

return of property.              The general rule is that seized property

should   be     returned         to     the     rightful        owner       after    criminal

proceedings have terminated, “unless it is contraband or subject

to forfeiture.”           United States v. Chambers, 192 F.3d 374, 376

(3d Cir. 1999).           Rule 41(g) allows a “person aggrieved . . . by

the deprivation of property [to] move for [its] return.”                                  Fed.

R. Crim. P. 41(g).           We review the denial of a motion for return

of   property       under       Rule    41(g)       for    an     abuse     of   discretion.

Chambers,     192    F.3d       at     376.         “A    district    court      abuses   its

discretion      if    it        fails    adequately          to      take     into    account

judicially recognized factors constraining its exercise, or if

it bases its exercise of discretion on an erroneous factual or

legal premise.”           DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323

(4th Cir. 2008) (internal quotation marks omitted).

     Rule     41    may    be    utilized       “to       commence    a     civil    equitable

proceeding to recover seized property that the government has

retained after the end of a criminal case.”                               Young v. United

States, 489 F.3d 313, 315 (7th Cir. 2007); see United States v.

Garcia, 65 F.3d 17, 20 (4th Cir. 1995) (recognizing “that a

postconviction motion for return of property is a civil action”

governed by Rule 41 that can be brought even “where no criminal

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proceeding     is      pending”).         During     the   pendency      of    a    criminal

prosecution, the movant bears the burden of demonstrating his

entitlement       to       the   return   of   the    subject     property;         however,

because a person from whom property was seized is presumed to

have a right to its return, at the conclusion of the criminal

proceedings, the burden shifts to the government to demonstrate

a legitimate reason for retaining the property.                           Chambers, 192

F.3d at 377; United States v. Van Cauwenberghe, 934 F.2d 1048,

1061 (9th Cir. 1991).               “The government may meet this burden by

demonstrating          a    cognizable     claim     of    ownership      or       right   to

possession adverse to that of the movant.”                        Chambers, 192 F.3d

at    377   (internal        quotation     marks     omitted).          However,      “[t]he

government must do more than state, without documentary support,

that it no longer possesses the property at issue.”                           Id. at 377-

78.

       While   an      evidentiary        hearing    is    not    a   prerequisite         for

ruling on every Rule 41(g) motion, United States v. Albinson,

356 F.3d 278, 281 (3d Cir. 2004), Rule 41(g) requires the court

to “receive evidence on any factual issue necessary to decide

the motion,” Fed. R. Crim. P. 41(g).                       If a disputed issue of

fact exists “relating to the status of the property or what

happened     to   it,”       then   the    court     should      hold   an    evidentiary

hearing to determine the chain of custody.                        Albinson, 356 F.3d

at 284; see United States v. Stevens, 500 F.3d 625, 628 (7th

                                               4
Cir.    2007)        (resolution         of     “whether      the     Government     still

possesses the property at issue is a question of fact” which

must    be    supported      by    evidence         including   sworn       affidavits     or

other       documents).        While       Rule      41(g)    only    pertains     to     the

recovery of property actually seized and in possession of the

Government, see Stevens, 500 F.3d at 628, “a motion for return

of property is not rendered moot merely because the government

no longer possesses the seized property.”                       Chambers, 192 F.3d at

377.

       Here, Roca’s Rule 41(g) motion alleged that his property,

including      the    cash,       was    not    forfeited,      and    he    provided      an

affidavit to that effect.                     The criminal case against Roca is

complete; therefore, the burden has shifted to the Government to

show a legitimate reason not to return the property and cash.

Id.     Recognizing       that      it    failed      to   produce     any    evidence     in

support       of   its    claim         that    the    cash     was    administratively

forfeited, the Government has moved to remand this matter to the

district court.

       We    agree    with    the       Government’s       confession       of   error.    We

therefore grant the Government’s motion to remand, vacate the

district court’s order denying Roca’s Rule 41(g) motion, and

remand the matter for further proceedings consistent with this

opinion.       We dispense with oral argument because the facts and

legal    contentions         are    adequately        presented       in   the   materials

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before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                       VACATED AND REMANDED




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