September 6, 1996     [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________





        No. 96-1037



                                  HELEN FORMANCZYK,



                                     Petitioner,



                                          v.



                              UNITED STATES OF AMERICA,



                                     Respondent.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Richard G. Stearns, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Selya, Cyr, and Boudin,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Helen Formanczyk on brief pro se.
            ________________

            Donald  K.  Stern,  United  States  Attorney,  and  Dina   Michael
            _________________                                   ______________

        Chaitowitz, Assistant  United States  Attorney, on Motion  for Summary
        __________

        Disposition for appellee.





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                 Per Curiam.   Pro se appellant  Helen Formanczyk appeals
                 __________    ___ __



            the denial by the district court of her motion for the return



            of  property seized  by  the United  States  Government.   We



            vacate the denial and remand for further proceedings.



                 Formanczyk styled her motion as  one pursuant to Fed. R.



            Crim. P. 41(e).   However, since criminal proceedings against



            her  have  been completed,  the  district  court should  have



            construed  her  motion  as  a  civil  action  for  return  of



            property, pursuant to  28 U.S.C.    1331.   United States  v.
                                                        _____________



            Giraldo, 45 F.3d  509, 511  (1st Cir.  1995) (citing  cases).
            _______



            Moreover, inasmuch as the property seized is no longer needed



            for  evidentiary   purposes,  "[t]he  person  from  whom  the



            property [has been] seized is presumed to have a right to its



            return, and  the government  has the burden  of demonstrating



            that  it has  a  legitimate reason  to retain  the property."



            United States  v. Martinson,  809 F.2d  1364, 1369 (9th  Cir.
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            1987)  (citing  cases)  (footnotes  omitted).    Although the



            government  now alleges  that  the property  in question  was



            forfeited in an administrative  proceeding, the instant  case



            was dismissed  before the district court  received a response



            from  the  government.     Consequently,  as  the  government



            concedes,  there  is no  evidence  of the  forfeiture  in the



            record.  In such  circumstances the dismissal of Formanczyk's



            claim was premature.



                 Vacated and remanded.
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