United States v. Uribe-Londono ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2121
UNITED STATES,
Appellee,
v.
JESUS ALBERTO URIBE-LONDONO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Jesus A. Uribe-Londono on brief pro se.
H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and
Germán A. Rieckenhoff, Assistant United States Attorneys, on
brief for appellee.
April 12, 2006
Per Curiam. Appellant Jesus Alberto Uribe-Londono is
currently serving a 120-month sentence after having been convicted
of two counts of sexual exploitation of children, in violation of
18 U.S.C. § 2251. We affirmed the conviction and sentence on May
20, 2005. See United States v. Uribe-Londono, No. 02-2027, slip
op. (1st Cir. May 20, 2005) (per curiam). While the direct appeal
was pending, appellant filed a motion in the district court
requesting the return of seized property pursuant to Fed. R. Crim.
P. 41(g).1 Appellant now challenges the district court's denial
both of that motion and of his subsequent motion for
reconsideration.2
Rule 41(g) provides that "[a] person aggrieved by an
unlawful search and seizure or by the deprivation of property may
move the district court . . . for the return of property on the
ground that such person is entitled to lawful possession of the
1
Although the parties cite Fed. R. Crim. P. 41(e), the
provision authorizing motions to return seized property is now
found at Fed. R. Crim. P. 41(g).
2
The government contends that we lack jurisdiction to review
these rulings because the notice of appeal was not filed within the
ten-day period for filing an appeal in a criminal case. See Fed.
R. App. P. 4(b). We will assume, without deciding, that this
appeal is timely. First, even if the ten-day period applies, the
prisoner mailbox rule, Fed. R. App. P. 4(c), would make the appeal
timely. Second, it may be that the Rule 41(g) motion should be
treated as a civil complaint for equitable relief, see United
States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995), the denial of
which is subject to the sixty-day appeal deadline applicable in
civil cases under Fed. R. App. P. 4(a)(1)(B). See United States v.
Potes Ramirez, 260 F.3d 1310, 1313 (11th Cir. 2001); United States
v. Bein, 214 F.3d 408, 412 n.3 (3d Cir. 2000).
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property. The court shall receive evidence on any issue of fact
necessary to the decision of the motion." A criminal defendant is
presumed to have the right to the return of his property once it is
no longer needed as evidence. United States v. Dean, 100 F.3d 19,
20 (5th Cir. 1996); United States v. Mills, 991 F.2d 609, 612 (9th
Cir. 1993). However, "[a] Rule 41[(g)] motion is properly denied
if the defendant is not entitled to lawful possession of the seized
property, the property is contraband or subject to forfeiture or
the government's need for the property as evidence continues."
Mills, 991 F.2d at 612 (citations and internal quotation marks
omitted); see United States v. Duncan, 918 F.2d 647, 654 (6th Cir.
1990) (explaining that "a defendant's right to the return of
lawfully seized property is subject to any continuing interest the
government has in the property") The government's interest may
take a variety of different forms; what matters is that it is a
legitimate interest. Duncan, 918 F.2d at 654.
Oddly, the arguments both parties assert on appeal are
substantially different than those raised in the district court.
The government maintains that the documentary evidence and camera
equipment appellant seeks to have returned constitute derivative
contraband (and is, therefore, subject to forfeiture). In the
proceedings below, the government objected to returning the
property on the ground that it constituted evidence related to the
case, but it neither characterized the items as derivative
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contraband nor expressly claimed that they were subject to
forfeiture.
Appellant seems to view the June 2, 2005, denial of his
motion for reconsideration as the equivalent of an order of
forfeiture and argues in his brief that the government's retention
of the items in question without initiating forfeiture proceedings
violates his due process rights. In the district court, however,
appellant seemed to concede that the government had a right to
retain case-related material and only disputed the government's
characterization of the items in question as such. Since both
parties failed to raise their forfeiture arguments before the
district court, they are not properly before us on appeal. See
Teamsters Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21
(1st Cir. 1992) ("If any principle is settled in this circuit, it
is that, absent the most extraordinary circumstances, legal
theories not raised squarely in the lower court cannot be broached
for the first time on appeal").
Given that the government did not expressly assert below
that the property was derivative contraband or otherwise subject to
forfeiture, the district court's failure to explain its denial of
appellant's motions or hold an evidentiary hearing to determine
whether the property in dispute was case-related would seem to
suggest that its rulings were not intended to adjudicate
appellant's ownership rights. Since at least some of the property
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appellant sought--e.g., the camera equipment used in committing the
crime and documentary materials that were found to contain contact
information for minors--obviously related to the underlying case,
it seems more likely that the district court simply concluded that
appellant's requests were premature and that the government had
adequately shown a need to retain the items as evidence until the
criminal proceedings had concluded. We see no error in that
ruling. See United States v. Saunders, 957 F.2d 1488, 1495 (8th
Cir. 1992)(holding that "[t]he motion for the return of paperwork,
even papers that were not introduced at trial, was premature
because defendant's direct appeal was still pending"). Now that
the criminal proceedings have concluded, appellant can renew his
request for return of property in the district court. To the
extent the government suggests that, even after criminal
proceedings have terminated, it may retain non-contraband items
without instituting forfeiture proceedings, we do not pass on that
argument as it has not been sufficiently briefed.
Affirmed. See 1st Cir. Loc. R. 27(c).
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