Filed: Feb. 10, 2017
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7971 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NESTOR VLADAMIR SANDOVAL ROCA, a/k/a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
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7971 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NESTOR VLADAMIR SANDOVAL ROCA, a/k/a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 ..
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UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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